Dize v. Beacham

Citations

• 81 Md. 603
• 32 A. 243

Syllabus

<p>Unrecorded, Transfer of Vessel — Marshalling of Assets — Notice of Title From Possession — Mechanics’ Lien.</p> <p>A transfer of an interest in a vessel, not registered under sec. 4192 of the Revised Statutes of the U. S., does not convey a title except as against the grantor and persons with actual notice of the same; it is not available against subsequent lien claimants who had no notice thereof.</p> <p>Where one creditor has a right to resort to two funds for the satisfaction of his debt, and another creditor can resort to but one of them, then, as between creditors, the former will be compelled to exhaust first that fund upon which the single creditor has no claim. This right to enforce a marshalling of the assets is not affected by a conveyance made by the debtor after the liens have attached.</p> <p>The owner of two vessels executed mortgages on both to secure payment of the same debt, the mortgages being recorded at the home port. Subsequently mechanics’ liens for repairs were filed against the second vessel. The mortgagee sold both'vessels under a power in the mortgages, and brought the proceeds into Court for distribution. After the lien claims were filed, the owner executed to plaintiff a bill of sale of one-half of the first vessel, and plaintiff also alleged that under a parol, unrecorded agreement, made before the execution of the mortgages, he was one-half owner of the first vessel, and had been in possession as such, and he claimed that the mortgage debt should be paid out of the proceeds of the sale of the second vessel before resorting to the first. The lienors, who had no claim on the first vessel, asked that the mortgage debt be first paid out of the proceeds of that vessel. Held,</p> <p>1st. That since the mortgages covered both vessels while the lien claims affected only the second, the mortgagee was bound, as against the lienors, to exhaust the proceeds of the sale of the first vessel before resorting to the proceeds of the sale of the secon