Mitchell v. Taylor , 32 Me. 434 ( 1851 )

Wells, J.

At the time when the papers were demanded of the defendant, the right of redemption in the property mortgaged had terminated, and it became absolute in the mortgagees, although there was no recital in the mortgage of the certificate of enrollment. The property passes without such recital in the instrument of transfer. Bixby v. The Franklin In. Co. 8 Pick. 86; Weston v. Penniman, 1 Mason, 306; Badger v. Bank of Cumberland, 26 Maine, 428.

By the Act of Cong. of Dec. 31, 1792, § 14, when a registered vessel shall be sold, the certificate of registry must be recited at length in the instrument of transfer, “ otherwise the said ship or vessel shall be incapable of being so registered anew,” and unless she is registered anew when a sale or transfer takes place, she loses her character as a vessel of the United States. And by the Act of Feb. 18, 1793, § 2, in order for the enrollment of a ship or vessel, she must possess the same qualifications, and the same requisites in all respects must be complied with as are made necessary for registering ships or vessels.

The mortgage, which was the instrument of transfer, did not contain a recital of the certificate of enrollment, and the plaintiff therefore, was not entitled to a new enrollment, and a certificate of it. He cannot maintain an action for any new papers, to which he is not by law entitled.

Has he a right of action against the defendant for not delivering to him the old .certificate and license? They had been given to the defendant by the former owner, the mortgager. The fourteenth section of the Act previously mentioned, requires the certificate to be delivered up to the collector when a new registry shall be made, and to be transmitted to the register of the treasury for cancelation. And the Act of the eighteenth of February, 1793, must be understood as requiring the-same course to be taken, to procure a new enrollment. When the application was made to the defendant for the necessary papers, he was already in possession of the certificate and license. But he could not by law enroll the schooner anew. If he had complied with the request of the plaintiff, and delivered to him the certificate, the plaintiff could not, by a surrender of it to any other collector, have procured a new enrollment, and by the fifil section of the Act last mentioned, upon a change of ownership, the license was no longer in force. Neither the certificate of enrollment, nor license could have been of any service to the plaintiff. They furnished no aid to the enjoyment of the property he had purchased. Their legal operation ceased when the sale took place, and they are of no value to any one.

Whether the plaintiff would have had any interest in the papers, if the transfer had been properly made, as evidence to be exhibited for the purpose of obtaining a new enrollment, it is unnecessary to determine.

The third section of the same Act relates to cases where a change is made from a registry to an enrollment and license, or vice versa, while the ownership of the property remains. The plaintiff could claim no right under this section of the Act, if he had requested such change to be made, without an oath of the master, that the property remained as expressed in the enrollment proposed to be given up. No such oath was taken, and none could have been consistently with truth, for there had been a change of property.

The Act of March 2, 1797, provides for cases where a ship or vessel has been sold by process of law. The Palo Alto was transferred by contract. The law prescribes the force and effect of it, but its origin lies in the consent of the parties. Besides, it does not appear, that the defendant has ever received any order from the Secretary of the Treasury, as is contemplated by this Act, to grant a new certificate or license.

There does not appear to be any ground upon which the action can be maintained, and the nonsuit must be confirmed.