The Robert Gaskin , 9 F. 62 ( 1881 )

Brown, D. J.

In this case six years and three-months elapsed from the time the service was rendered to the day the libel was filed. No excuse is shown for the delay. In The Hercules, 1 Brown, Adm. 559, I had occasion to hold that the libel should be filed during the current season of navigation, or as early the following season as it was probable the vessel could be seized. The testimony does not show such an absence from these waters as precluded the necessity of diligence. I see no reason to doubt that, if an attachment had been promptly taken out in the spring of 1874, the vessel would have been seized before the close of navigation. In 1870 she visited Bay City, and libellant there demanded his bill. Then, certainly, if not before, it was his duty to act. It is true he might not have been able to seize her before leaving Bay City, but if he had forwarded his claim at once to Detroit, an attachment might have been issued, and the brig seized on her down trip.

It is insisted, however, that the fact that the libel was filed before the sale was made to the present owners is sufficient evidence of diligence. It is not perceived how the owners are placed in any better position by this fact than they would have been if the libel had been filed after the sale. The fact that the libel was filed five months before the sale, can only be material upon the theory that the filing of the libel and the issuing of the attachment were constructive notice of the pendency of the suit. There is no doubt that in cases affecting real property the commencement of a suit is constructive notice of the pendente lite. Wade, Law of Notice, c. 2, § 5; County of Warren v. Many, 97 U. S. 107.

It is doubtful, to say the least, whether the commencement of a suit to enforce a lien upon a vessel is such a suit as is within the contemplation of this rule. But, waiving this question, it is quite evident that the suit was not commenced at the time the sale was made in such a way as to bind bona fide purchasers of the property, without actual notice. Bor the purpose of ascertaining whether a suit is brought within the statutory limitation, the suit is generally held to be commenced from the date the process is issued and placed in the hands of an officer for service; but in other cases, where the question as to the validity of a purchase depends upon whether the property purchased is the subject of litigation at the time, the suit will not be regarded as pending until the service of original process, whether the same is personally served upon the defendant, or by any method prescribed by statute as a substitute for personal service. Wade, Law of Notice, § 348.

Now, as it is clear in this case that the process was not served upon the vessel until three months after the sale, the suit cannot be regarded as having been commenced until that time. The creditor of a vessel is bound, as against a bona fide purchaser, to use due diligence ; and I know of nothing but the continued absence of the vessel from the reach of process which will excuse him. He has no right to wait and speculate upon the chance of the vessel being sold. In this case it made no difference to the vendee whether the libel was filed before or after his purchase, so long as he had no actual notice of the claim.

In The City of Tawas, 8 Cent. Law J. 191, I had occasion to observe that claims are not pronounced stale upon the sole ground of estoppel. In this case the claim of a material-man accrued shortly before the mortgage was given, and it was insisted that although the libellant waited for a considerably time before filing his libel, the claim had-not become stale as against the mortgagee, as it was not stale when the mortgage was given, and there having been no change in the relative situation of the parties up to the time of filing the libel, the mortgagee had not been injured by the delay. I felt obliged .to hold, however, that the creditor was bound' to use due diligence himself, and that the court could not enter into nice inquiries as to how far the subsequent purchaser had been damnified by his failure to proceed immediately.

If libellants had taken out their attachment in the spring of 1874, and kept it alive by repeated renewals, I would have enforced the claim even at this late date; but after being guilty of such inexcusable laches, he cannot be heard to say that he filed the libel before the sale was made.