
    The Steamboat Waverly v. Joseph Clements
    The purchaser of a steamboat, with notice of a debt created on account of the boat by the original owners, takes the boat, subject to such debt.
    Such boat may be seized and sold by the creditor, in the hands of such purchaser, with notice.
    This is a writ of error from Hamilton county.
    The facts of the case appear, in the opinion of the court.
    Charles Fox, for the plaintiff in error:
    On the part of the plaintiff in error, 1 claim that the suit below could not be sustained against the boat by name, for a debt created by the original owners, after those owners had sold and transferred the boat.
    
      I claim that debts created by the owners of steamboats, are no liens on the boat, unless the creditor has secured such a lien, by having his claim recorded under the lien law. These laws, when complied with, give to the creditors a lien for two years only. But to give a lien on a boat, by construction, would defeat those lien laws, and give to creditors who had not complied with the requisitions of those laws, an indefinite lien for any period of time; whereas, if they have complied with those requisitions, the lien is limited to two years. The statute authorizing proceedings against boats'by name, does not create a lien in express terms; and it is clear that, according to common law principles, no such lien exists; so that, if the statute gives *none, no lion exists until seizure of the boat, and then it could only affect purchasers, with notice. For a more extended argument on this branch of the case, I ask the particular attention of the court to my brief, in the chancery suit of Kellogg et al. v. Brennan et als.
    It is claimed, however, that the purchaser had knowledge of the claims sued on, being due, and therefore the boat is liable in the hands of the purchasers; but, if there was no lien created on the boat, for this particular debt, it is clear that the purchaser could not be affected by the claim. If a lien existed, and the purchasers know or were chargeable with the existence of such lien, I admit they would bo bound by such notice; but, without such notice, the purchaser would not be affected; 20 Wendell, 20. I suppose it to be well settled, that if a mortgagor is in possession of personal property which he has mortgaged, he may sell to an innocent purchaser and convey a clear title; but a purchaser who know of such mortgage, could not hold against it; and, therefore, whore a lien has been created, either by contract or law, and notice is brought home to the purchaser of the existence of such lien, he will be affected by it. But if no mortgage or statute lien exists, the knowledge that a debt is owing, will not affect the purchaser, because there is no lien.
    But the court will perceive that the clause relied upon in this case, is only intended to extend or keep off payment of 'privileged' debts. Now, mechanics might, if they saw proper, under the lien law, create a lien on the boat, and thereby make their debt a privileged one. And no doubt, so far, any mechanic who had complied with the requisitions of the lien law, would have had a right to have charged those purchasers with notice of such liens, by virtue of the clause in this article of agreement; but this is the whole extent of the operation of the clause in question. It does not pretend to have any reference to anything but privileged liens.
    Again, the court will perceive how the court below arrived at the conclusion it has arrived at. It first assumes the boat to be a person, therefore it is the debtor — a debt is always suable *until the debt is paid, therefore the debtor may be sued at any time — as satisfaction by a debtor of one debt, does not preclude another creditor from suing him; so the suing of a boat, and even selling her to pay the debt of one creditor, does not prevent another creditor from suing and selling the same boat; and in fact, under our statute, there can be no such thing as giving a clear, indisputable title to a steamboat. It is the only piece of property a man can own which is liable to be sold more than once; but this may be sold to pay for an assault and battery, and then it may be sold again to pay a butcher’s bill, and again to pay the blacksmith’s bill, again to pay the ship-carpenter’s bill, again to pay the painter’s bill, and then again for another assault and battery; so that the poor debtor is to be sold every day in the week, and no title is at last convoyed so long as a creditor exists. In this way the rights of purchasers and mortgagees are all overreached.
    I claim, if such is a fair construction of the statute, it is a void act. It is unconstitutional, because it undertakes to take from one man property to pay another’s debts.
    But I claim that an innocent purchaser of personal property defeats all these dormant liens. 8 Cow. 238.
    Th. J. Strait and J. J. Collins, for defendant:
    It is urged that the steamboat law gives no lien nor liability on the boat, but merely a right to sue, and which operates in the end only as an attachment. If such be the true construction, the beneficial effects of that law will soon cease. It only wants to be known to river men generally, to place claimants in a worse situation than before the law; for no boats would have known owners but such as fell into the hands of responsible men. The attachment would avail nothing in such a case; for the shorter and better remedy would be against the owners themselves, which existed before the law in question. Irresponsible men would never run a boat two trips. Every trip she would change from one such owner to another. Weak, vicious *and drunken officers would be employed at reduced wages, who, regardless of consequences, would maltreat passengers, steal, or convert the freights to their own use, and leave shippers, passengers, and the traveling public to seek remedy against a worthless and irresponsible set of owners and officers. The steamboat law of Ohio, under its construction, has done more to elevate the character and responsibility of owners, officers, and river men generally, in the west, than anything that has occurred since the country was first settled. Better men own them; better men are employed to navigate them; fewer accidents happen; fewer lives are lost; less goods are damaged and lost; commerce more safe. And, finally, the public have more confidence than previous to its enactment. In its details, the law is bad, and must have been drawn by a careless hand, and passed without much reflection. Its first section, however, contains matter worthy of being recorded in letters of gold; and evil be the day that the construction thereof shall be pared down to an attachment law. We care not whether it is a lion, as claimed by Judge Hitchcock, in 10 Ohio, 384, 386, or a liability, as claimed by Judge Read, in 11 Ohio, 458, 462. We will not bandy words on that subject. Either will do. It matters not what the name is, so the effect desired is produced. But we must be permitted to say that to us it seems both a lion and liability ; and, as the two words used together in the construction of the first section of the law, would place it beyond question longer, and elevate it to the point most beneficial to the public, and, as we think, nearer the intention of the legislature than any other, suppose we unite them and say, though singly it may be neither, yet in effect it is both.
    It is said to bo no lien, because that would in effect repeal the lien law, and that the legislature never intended it, and should not be construed to be repealed by implication. This argument has not one tenable quality. The lien law is a local statute, first confined to the city of Cincinnati, and was intended for the benefit of the mechanics of that place, and only ^extends to the building and repairing of houses and boats. It was afterward extended throughout the county, and then to several counties, but still it is local. It does not embrace the whole state. If the lien law were to have the influence in the construction of the steamboat law contended for, the latter must become local in its operation also. It must operate as a lien in those counties where the lien law does not extend, and as a mere attachment in those counties embraced in the former. Besides, the steamboat law extends to a greater number of transactions than the lien law, consequently it must operate as a lien or liability on the boat for all such acts or transactions as are not included in the lien law, and they of course need not be recorded ; but such as are embraced in the lien law, must bo recorded as therein directed. A part then, of the provisions in the first section of the steamboat law would create a lien or liability until satisfied — the other only for two years. Such a splitting of a general law, because there happened to be a local law previous, that, with other provisions, embraced a portion of those in the general law, would be an anomaly in the construction of statutes.
    It is said the language of the act does not create a liability for the debt, but a mere right to sue; and if the latter only, this suit can not be sustained, because she changed owners before suit was brought.
    The language of the act is so plain, we can not see how an argument can bo gotten up or a doubt exist. It is, “ shall be liable for debts contracted on account thereof.” This does not say that the boat shall be liable to be sued for debts contracted on account thereof. The words, to be sued, are not in the act. The court can not put them there. If it was intended only to give the claimant the right to sue, why did not they say so ? It was just as easy to say one as the other. Liable for the debt, and liable to be sued, are different expressions, and the meaning of them is easily understood. The fact is, a few steamboat men have been quarrelling with the word “liable” a long time, twisting it every way imaginable, to get clear of responsibility. *“Tho galled jade winces,” but still the language is there, staring them in the face, a terror to evil doers; and the courts thus far have given it its rightful meaning. We never yet heard an honest, responsible steamboat man complain. The law is beneficial to him. He keeps his boat clear of debt, and in good repute; consequently gets the business. Such boats are never sued. The most of the late suits against steamboats, present some shuffling, twisting, aDd cheating concern. , New others find their way into court. Then, forsooth, the legislature did not mean what they have said.
    Suppose the act reully means liable to be sued, instead of liable for the debt, would the rights of the parties in this causo be changed? The boat was once liable to be sued on Clements’ bill. What has changed that liability? Is it changed because the boat has changed owners? Can a liability to a suit once existing be taken away by the act of the debtor, without the consent of the creditor, or without some act of his, or until the debt is satisfied ? Does the law permit a party to take advantage of his own acts, right or wrong, and thereby injure another? But it is said the purchaser is innocent, and therefore ought to be protected. He is presumed to know the law, and consequently purchases the boat with his eyes open, and her liabilities on her. If he does not know the extent of her liabilities, he may risk them if he pleases, or take security from the vendor, and not combine with irresponsible owners to cheat the honest creditors of the boat.
    Bishop & Backus also submitted for the defendant the following argument:
    The determination of this case involves a construction of the “ law providing for the collection of claims against steamboats and other water-craft, and authorizing proceedings against them by name.” Swan’s Stat. 209,
    The only point which we propose to discuss is, whether a judicial sale of a vessel under said law passes a title to the vessel, *free from all claims named in the law which may exist against the craft at the time of the sale, or which may have been contracted before the seizure of the craft in the case in which the sale is made.
    The law provides that the boat shall bo liable for debts contracted on account thereof for supplies or labor, etc. And when you come to section 2 you find it reads thus: “Any person having such demand may proceed against the owner or owners or master of such craft, or against the craft itself.” Does this section mean what it says? Has such creditor the right to elect which of the throe, the owner, master, or craft, he will proceed against? If he has, then there is no further cause for argument on this point.
    It is said that if the purchaser 'does not, at a judicial salo, acquire a clear title, it will be hard on the purchaser, and tend to discourage sales of this kind of property. But we answer that it is no harder on the purchaser, nor does he run a greater hazard in this than in any other case. Patterson v. Mansfield, 3 Ohio, 369.
    Suppose the sheriff seize the craft, by virtue of an execution ' against the nominal owner, and sell her, the purchaser runs the risk of title, and may lose the boat by a paramount title in the third-person. It would be so at auction; it would be so at private sale; and yet, such being the fact, sales are neither discouraged nor unfrequent.
    It is also said that the debts for which the law makes tho vessel liable do not attach as liens at all, nor is the boat liable to be seized after either a judicial or private sale for debts existing at the time or previous to such sale.
    But it is admitted that if the debts contracted under the law are liens on the craft, then they follow her wherever she goes.
    Let us see how the matter stands on this point. There have been three decisions in the Court in Bank of eases arising under this law. Tho first is 10 Ohio, 384. On page 386, the court says: “This law gives a lien upon such crafts for certain claims against them. Its object is on the whole a beneficial one, and, *if possible, should be carried into effect. Had the law merely declared the lien,” etc.
    It is, however, said that the case of Canal Boat Huron v. Simmons, 11 Ohio, 462, contradicts the case in 10 Ohio above cited; because Judge Read said, in the last ease, that “ her responsibility is not in the nature of a lion,” it is claimed the language in the first case is no authority. But take the language used by Judge Read, in connection with the other parts of his opinion, and it explains itself. Ho means that our statute gives not a mere naked lien, like that in New York, which is divested by leaving port, or like tho mechanics’ lien at common law, which is lost by a delivery up of possession of tho property on which the lien has attached; but it is a liability created by law, and follows the boat wherever she goes.
    Lewis v. Schooner Cleveland, 12 Ohio, 341, is further authority that tho debt is a lien on the craft. In the last two paragraphs, on page 343, Judge Wood makes use of the word lion. Again, on page 351, Judge Birchard makes use of the term lion, and indeed in the throe cases it does not enter into the minds of the court but that all debts due by the vessel are a lien upon her, distinguishabl e from that under the New York law or the common law lien of mechanics, etc.
    Wo further maintain that to hold that the vessel is not liable to be seized and sold a second time, the court must not only nullify the statute and defeat its object, by making the seizing and selling not the general rule, but the exception, but they must overrule their former decisions.
    In 11 Ohio, 460, the court say : “The mischief intended to be remedied was the difficulty of collecting debts due from the owners of boats,” etc.; and that the difficulty of hunting up owners “induced the legislature, in all cases, to substitute the boat in their stead, and to treat her as a person,” etc., and “to make the boat responsible for all debts,” etc. On page 461 the court further say: “ Our statute treats the boat as a person, and makes it responsible in its own name for all debts contracted for its use."
    *In Lewis v. Schooner Cleveland, 12 Ohio, 341, the doctrine contained in 11 Ohio, above referred to, is repeated by Judge Wood, and affirmed; and in 12 Ohio, 343, the court make a complete answer to the objections of the evils and difficulties attendant on the doctrine in Huron v. Simmons, 11 Ohio. In 12 Ohio, 344, Judge Wood says: “All demands against the boat may have been discharged, or they may exist, and the purchaser must inquire or take the craft at his peril;” and this last remark completely answers the claim that the purchaser takes a clear title to the boat, if he be a purchaser without notice. Give- the law the construction which counsel opposed ask for, and you will find, in innumerable cases, the craft changing owner, as often as she has contracted debts sufficient to pay the expense.
   Wood, J.

This was an action of assumpsit, tried in the court of common pleas, without the intervention of a jury. The declaration contained the usual common counts. The plea was the general issue, with notice of special matter in bar of the action. In the court of common pleas the parties were reversed, the suit being brought by Clements against the boat for work and materials furnished, and for which the indebtedness accrued on August 8, 1841.

The court of common pleas gave judgment for the defendant in error, and to reverse this judgment this suit is prosecuted.

A bill of exceptions was taken to the opinion of the court, from which it appears the indebtedness was fully proved ; and, at the time it accrued, J. and E. Stout were the owners of the plaintiff in error.

Five months after the indebtedness arose, and before the commencement of the suit, and on her first trip to Now Orleans, the Stouts sold the boat, and the agreement, among other things, contains a stipulation that the Stouts will use their exertions to keep back the debts against tho boat, then due in Cincinnati, until a certain note at nine months, and given in *part consideration, should become payable, or until the claims are presented as privileged claims against tho boat.

In this aspect of the caso, it is contended by the counsel for the boat, that judgment should have been given for her. It is insisted that a suit can not be maintained against a boat by name, for a debt created by tho original owners, after they have sold and transferred the boat to others, because the debts created by the owners are not liens, unless creditors have made them such by having them recorded under the lien law for Hamilton county.

It seems to us entirely unnecessary to decide whether the liability of the boat for debts contracted on her account, is strictly to be regarded as a lien or not, in the present case. When it becomes necessary to decide that question, our opinion will be expressed; but, “ sufficient for the day is the evil thereof.”

The statute makes the boat liable for debts contracted on her account, and croatos her an artificial person, and authorizes a suit against her by name, to enforce that liability. She may be seized, adjudged a debtor, and sold on execution, in discharge of her obligation. Under such circumstances, it is clear to us that a purchaser, with notice of such pre-existing liability, does not take the. boat discharged from the debt.

Such is the present case. The present owners are purchasers with notice, and tho boat may be sued and sold in their hands, in satisfaction of the plaintiff’s claims; and the common pleas, by so deciding, in our opinion, committed no error.

It appears, from the bill of exceptions, that the common pleas gave it as their opinion, that an innocent purchaser might bo overreached, by a creditor of the boat, whose debt was incurred by the original owner. This question does not arise in the cause; for it is clear, from the stipulations in the agreement, the purchasers had full notice of the debt of Clements, and would be, at most, a bad reason for a correct judgment, and, moreover, is but an abstract proposition, which if incorrectly adjudged, does not lay the foundation for a writ of error.

Judgment affirmed.  