McLellan v. Osborne , 51 Me. 85 ( 1862 )

The opinion of the Court was drawn up by

Davis, J.

The plaintiff’s testator was a part-owner of the barque Susan W. Lind; and, from 1857 to 1859, he paid certain bills against the vessel. He brings this bill in equity against the defendants for contribution, and for a final adjustment of the accounts. The only question now presented, is, whether the defendants were part-owners at the time the bills against the vessel were contracted.

Osborne received a bill of sale of three-eighths of said vessel, in 1858. Though absolute in form, it was probably designed as collateral security for his liabilities. But, however it might hive been originally, he appears soon after-wards to have assumed the management and control of the vessel as one of the owners. His letters to MoLellan, the testimony of Nesmith, and especially the fact of his paying bills against the vessel, and suffering himself to be defaulted, and judgment to be rendered against him, in suits upon other bills, are satisfactory evidence that he was a part-owner, and is liable as such.

In regard to Amos Chase, the testimony of Clark is positive, that he sold one-eighth of the vessel to him and his brother Samuel, in 1854. No bill of sale was then given, because there had been a previous conveyance, which the parties thought sufficient. But they paid Clark for it; and, if the conveyance was invalid as to third parties, it was valid as between 'themselves. They became the actual owners of one-eighth, and had the rights, and were subject to the liabilities of part-owners, with some exceptions which do not apply to this case.

The testimony of Clark is confirmed by the fact that Amos 'Chase afterwards repeatedly claimed to be an owner.

It is argued that Chase lost his interest by the sale on execution, as the property of Clark, Nov. 10, 1855. That such a sale was made, there can be no doubt. But the parties to it were McLellan, who owned the execution, and Clark, the debtor, who had the record title of the interest in the vessel. Williams, who acted for McLellan, did not claim the vessel under the sale. Clark did not claim to have the debt discharged by the sale. And McLellan gave up all claim, and ordered the officer not to make any return of his doings. Thus, by the consent of all the parties interested, the sale was vacated and revoked. Chase is not in a position to claim that it was valid, and that it divested him of his title.

Samuel F. Chase having deceased, his representatives should have been made parties to the bill. If an amendment shall be offered and allowed for that purpose, the bill will then be sustained, and a master can be appointed to determine the rights and liabilities of the parties, unless the representatives of Samuel shall claim a further hearing.

If not amended, the bill must he dismissed.

Appleton, Rice, Goodenow and Walton, JJ., concurred .