Cato v. Irving. another party may enter his bill of sale. If the ship be out of port, that cannot be done till she comes back. If she is at home, no other bill of sale can be entered till thirty days shall have elapsed since the former entry. If the ship be absent then, the entry cannot be made until thirty days have elapsed since her return to the port to which she belongs. The effect is, no doubt, that a party cannot safely purchase a ship away from her own port, but that was evidently the intention of the legislature. The registry at home is intended to be a security to parties, to which they are to look. Therefore we have here a good title at common law by our deed, and the Registry Act is an additional security to us, unless the defendants bring themselves under the before-mentioned sections, which are only applicable to events which have not happened here. As to the freight, it will not be denied that it follows the ship. Wigram and Goldsmid, for the defendants. The question of the title to the freight is different from the title to the ship. We have a good title to these shares of both ship and freight, because the mortgage did not revoke the power of attorney; and the sale of Ward's shares to the defendants would at any rate be good, subject to the mortgage. If the ship had remained in England, the title would have been made complete. It is very extraordinary if no title can be made to a ship when it is abroad. By sect. 11, every ship is to be deemed to belong to some port at or near which the owner should reside. It then provides, that whenever such owner should transfer his shares, the same should be registered de novo, or an indorsement made upon the certificate. Therefore, till that was done, the mortgage was of no effect against a subsequent purchaser without notice. [PARKER, V. C. Your construction of that section would enable an owner to defeat a mortgage made by him in all similar cases. Suppose the ship were at sea, and the owner were to mortgage her at Liverpool, he might then come to London and sell her; and, according to your argument, such sale would be valid.] In ordinary cases the mortgage would be completed by a due indorsement on the certificate of registry, and then no such question would arise. Here that could not be done. The policy of the Registry Act was to enable persons to ascertain the true ownership and state of the title. In this case the Sydney register shows the purchaser's title complete, but the Liverpool register shows only an incomplete mortgage to the plaintiffs. Their argument is, that a title complete on the register should be postponed to one not complete. Moreover, the ship is a mere chattel, and possession having been delivered up to the purchaser, that gives him a good title. Then as to the freight; the mortgage deed, it is true, purports to assign all future freight; but, as between Ward and Murnin, the ownership was effectually transferred to the latter, and the mortgagee was not then in possession of the ship. Unless the plaintiffs can make out that the assignment of the ship to them gave them a right to the freight, the assignment of the future freight could not, for when this freight was in her, the ship was Murnin's, and he sailed her. The word "future" Cato v. Irving. in the mortgage deed must be mere surplusage. [They cited, on this question of right to the freight, the cases of Davenport v. Whitmore, 2 My. & C. 177; Stephenson v. Dowson, 3 Beav. 342; Splidt v. Bowles, 10 East, 279; Dean v. M' Ghie, 4 Bing. 45; Kerswill v. Bishop, 2 Cr. & J. 529; Morrison v. Parsons, 2 Taunt. 407; and Camden v. Anderson, 5 T. R. 709.] These cases would apply if the question had been between Ward and the plaintiffs; they apply a multo fortiori to a like question between the plaintiffs and a purchaser for valuable consideration without notice from Ward. The fact of the mortgagee having put a man on board to take possession is immaterial. Murnin's title is clear, and is supported by the analogy of the present law as to mortgages of real property. If the owner of land makes a lease, and then mortgages the land, the mortgagee may distrain for rent; but if the mortgagor makes a lease subsequent to the mortgage, the mortgagee cannot distrain. Rogers v. Humphreys, 4 Ad. & El. 313; Partington v. Woodcock, 6 Ad. & El. 690. [PARKER, V. C. There would be little doubt if this were a case concerning real estate, and you were a purchaser without notice.] The analogy ought to hold good here. At any rate, the assignment of future freight cannot help the plaintiff's case. Ward could only assign to them the freight which he should earn, not that which was afterwards earned by Murnin. PARKER, V. C. As to the title to the shares of the ship, there is no doubt the plaintiffs have made their title, as mortgagees of Ward's shares, good under sects. 34 and 37 of the Registry Act. The time has not arrived for the completion of their title. By sect. 38 their title is good, to all intents and purposes, except against such purchaser as should first procure an indorsement to be made on the certificate, as therein mentioned. The defendants represent a subsequent purchaser, who has not fulfilled that condition. The only argument for the defendants is founded on the registration de novo in Sydney; but that was not a registration against the mortgagor, because he was not owner. I should like to hear the question as to the freight argued further, but the reply may be relieved from all question concerning the title to the ship. Crompton, in reply. As to the freight originally, no one but those who were parties to the original contract for the freight can bring an action for it; but those who were not parties to the contract have a right when the ship is transferred to them. The right to the accruing freight, however, does not depend upon the right to sue; but a mortgagee, taking possession of the ship and cargo before the freight is earned by delivery, has a right to hold them, so as to prevent the freight being fully earned by delivery. Kemp v. Clark, 12 Q. B. 647. It is similar to the right of stoppage in transitu, which depends on whether you can catch the goods in the hands of the bailee before delivery. [PARKER, V. C. The defendants here are not exactly in the posi Cato v. Irving. tion of the mortgagor, but are purchasers from him without notice of your interest.] That can make no difference; the highest they can put their case is, that they can take such right as the owner had, which makes them subject to our mortgage. The plaintiffs are mortgagees of forty-eight shares in the ship, at any rate, and as such they may say the ship shall not be used for the purpose of the delivery of this cargo, and so prevent the freight from being earned. January 31. PARKER, V. C. In this case, Henry John Ward and Alexander Adam are owners of the ship Ajax, Ward being entitled to 48-64th parts, and Adam to 16-64th parts of it. The ship belonged to Liverpool, and proceeded thence on a voyage to Sydney, with Adam, one of the part owners, as master. After this, Ward made a bill of sale of his forty-eight shares, by way of mortgage to the plaintiffs. Afterwards, and when the ship was at Sydney, Adam, who had a power of attorney from Ward for the sale of his fortyeight shares, sold the entirety of the ship to Michael Murnin, who purchased in ignorance of the previous mortgage. One question which was raised in the case was as to the interest of the several parties in the ship. I stated my opinion when the case was argued, that the mortgage was good against Murnin to this extent; and consequently he purchased and held the ship subject to the rights of the plaintiffs as mortgagees of Ward's forty-eight shares. Adam's own sixteen shares are free from any incumbrance. The remaining ques tion is as to the rights of the plaintiffs and Murnin in the freight of the same ship. As to the freight, the statements are, in substance, the following: The ship sailed from Sydney with a cargo of wool and tallow on the 22d September, 1850, and arrived at Gravesend on the 21st February, 1851. The plaintiffs, on the 28th February, 1851, and before any part of the cargo had been discharged, took possession of the ship and freight in the London Docks, by placing a man on board. The defendants, who are agents of Murnin, have since taken possession in a similar manner, and they claim to be entitled to the whole of the freight on his behalf. The plaintiffs have caused notices to be served at the different wharves of their claim to the forty-eight shares as mortgagees of those shares. The defendants, however, have received the freight, under an arrangement to submit the title of the parties to such freight to the judgment of this court upon this claim. It is not stated that Murnin has been at the expense of the outfit of the ship and the voyage to England. I suppose that must be so. The rights of the plaintiffs as mortgagees cannot be put higher than the rights of part owners; and therefore, if Murnin did incur these expenses in earning the freight, the plaintiffs cannot claim without making an allowance to Murnin for his expenses so incurred. I am of opinion, that, subject to any deductions to which Murnin may be entitled on that account, the plaintiffs have made out their right as mortgagees to forty-eight shares of the freight in this case. The authorities referred to in the argument establish, that mortgagees of a ship who take possession before the conclusion of the voyage are en Watkins v. Williams. titled to the freight then accruing. It was contended that the present case did not come within this rule, because the plaintiffs did not take possession until the conclusion of the voyage. I consider that a mortgagee who takes possession before the cargo is delivered comes within the rule. The right to the freight does not accrue until the goods are delivered. Parties so taking possession must be as much within the reason of the rule where the ship is in dock, as where she is only on the way to the docks. For these reasons, if the mortgagees had been mortgagees of the whole of the freight, I consider that, under these circumstances, they would have been entitled to the whole. Being mortgagees of a certain number of shares only, they could not take possession, to the exclusion of Murnin or his agents. I think that this circumstance does not vary the rights of the parties, though it may alter the principle on which their rights depend. Until the mortgagee takes possession, or does some equivalent act, the owner is entitled to the freight, and is not accountable to the mortgagee for what he receives. When the mortgage is of the entirety, the mortgagee may take exclusive possession; when it is of some shares only, he cannot take possession, so as to entitle him to prevent the owner taking possession of part. In such cases the mortgagee, without formally taken possession, if he gives notice and requires payment to himself of his shares, that entitles him to receive his shares of the freight then accruing, and not actually due. To hold otherwise would render it impossible for the mortgagee to make a title to his shares at all. If the ship had been real estate in the possession of Murnin, and had been let by him to another person, at one certain rent for the whole, the plaintiffs, by giving notice to Murnin requiring payment of a portion of the rent, would have been enti tled to a share of the rents as against Murnin. The declaration must be, that the plaintiffs are entitled to 48-64th parts of the ship, and 48-64ths of the net freight, after allowing to Murnin his expenses, to an amount not exceeding the sum due to the plaintiffs for principal, interest, and costs. WATKINS V. WILLIAMS; HAVErd v. Davis.1 March 26 and 27, and November 25, 1851. Condition Precedent or Subsequent. W. D., having an absolute appointment by deed or will over an estate, devised it to her husband, R. D., with power to sell and dispose of the same, or to raise any sum of money thereon by mortgage, as he should think proper, “ provided that such part of all and every sum and sums of money, so as aforesaid raised by the said R. D., either by sale or mortgage, as shall be unexpended at my (his) decease, shall be charged upon the houses belonging to R. D., situate, &c., to be disposed of immediately after the decease of the said R. 1 16 Jur. 181. Watkins v. Williams. D., that sum to be paid to my four nieces." And she devised the reversion of the estate to her four nieces, in case it should be in mortgage; and if the estate should not be sold or mortgaged by R. D., then she demised the same to her said four nieces, as tenants in common in fee. R. D. mortgaged the estate, and died, never having charged his houses with any part of the mortgage-money : Held, affirming the decision below, that the condition was not a condition precedent, and that the mortgage by R. D. was a valid mortgage. THE facts of these cases sufficiently appear upon the judgment. Swanston and T. Terrell, for the appeal. Bacon and W. M. James, contrà. November 25. LORD TRURO, L. C. This is an appeal from the decree of Knight Bruce, V. C., upon the following grounds: -First, on the ground that it ought not to have been declared by the decree that certain mortgages created by Rees Davis were valid; secondly, on the ground that the equitable mortgage created for securing 6007. is not valid; and thirdly, on the ground that a partition ought to have been directed to be made between the different parties interested in the estates to which the mortgages referred. These are the grounds which appear in the petition of appeal. Other objections were taken by the appellants on the hearing of the appeal; but, as I do not think it is competent to the appellants to take objections to the decree which are not stated on the petition of appeal, I can take no notice of them. The facts of the case are very compli cated, but I will state such as are revelant and material to the judg ment I am about to pronounce. By indentures of the 12th and 13th May, 1817, George Price Watkins, under whom the respondents claim, took a transfer of a mortgage for 12007. on an estate called "Lower Tylecrown." Some years prior to this, Lewis Williams, being the owner of the equity of redemption of Lower Tylecrown, and also owner in fee of Upper Tylecrown, devised these estates to his daughters, Abigail and Winifred, as tenants in common in fee, and died in the year 1802. Abigail Williams intermarried with Walter Lewis, and Winifred Williams intermarried with Rees Davis. In or about the year 1824, Abigail Lewis died intestate, leaving her hus band, Walter Lewis, and three children,-Edward Williams Lewis, her son and heir at law; Mary, afterwards the wife of Thomas Haverd; and Margaret, afterwards the wife of John Lewis. Edward Williams Lewis, the only son and heir of Abigail Lewis, died, leaving his sisters, Mary Haverd and Margaret Lewis, him surviving, in whom the moiety which belonged to Abigail Lewis became vested, as his coheiresses at law. In September, 1833, Walter Lewis, Thomas Haverd, and John Lewis made an equitable mortgage of the moiety which belonged to Abigail Lewis to the said George Price Watkins, for securing 600l., one half of which appears to have been paid. By indentures of the 16th and 17th November, 1838, John Lewis and Margaret, his wife, made a mortgage to George Price Watkins of one undivided fourth part or share of Upper and Lower Tylecrown, |