must wait until the vessel earned enough to pay them, and desired the defendant to pay them out of the first money the vessel should earn, by freight or otherwise. That the vessel proceeded to New-Orleans, and from thence with a cargo to Jamaica, where the freight was received, and out of the same the defendant paid Haynes the 384 dollars, and applied 800 dollars to the discharge of his own claim. That the vessel then sailed from Jamaica, and arrived at Alexandria on the 27th of November, 1800. That after her arrival, and after possession delivered to the plaintiff, the latter paid the expenses and disbursements of the voyage, which became due on her arrival, by the orders of the defendant. The plaintiff also insured the vessel for the said voyage, and paid the premium thereon, after her departure for New-Orleans. It was also, proved, that on the defendant's return to Alexandria with the vessel, and before the plaintiff took possession of her, and received his absolute bill of sale, as aforesaid, the defendant rendered to, and settled with R. and J. Hamilton, an account current of the expenses and profits on the said voyage, in which they gave credit for the order in favour of himself, and that in favour of Haynes.

Upon this statement of the evidence, the plaintiff prayed the court to instruct the jury, that he was entitled to recover of the defendant, the sum of 1184 dollars, thus admitted to have been received for freight, and applied to the discharge of the two orders; which the court refused to do, and directed the jury to find a verdict for the defendant, if they found the facts to be as stated.

The 2d bill of exceptions stated, that the plaintiff prayed the court to instruct the jury, that if they should be of opinion, from the evidence aforesaid, that the defendant received information of the mortgage from Robert Hamilton, before the schooner sailed upon the said voyage, the plaintiff was entitled to recover the said 1184 dollars, which the court also refused to do, and directed the jury, as before, that their verdict ought to be for the defendant.

This case was first argued at February term, 1804.

HODGSON

V.

BUTTS.

HODGSON

V.

BUTTS.

February 27, 1804.

E. J. Lee, for plaintiff in error.

The law of mortgages is the same both as to land and personal property.

The case is to be considered, first, upon common law principles; and second, upon the statute law of Virginia.

First point. That the mortgagee is the legal proprietor of the mortgaged subject; and as such, he is entitled to receive the rents and profits after notice of the mortgage, unless the contrary be stipulated.

The mortgagee of lands leased becomes entitled to the rent from the time of executing the conveyance; for the rents and profits, as well as the land, are liable for the debt.

As soon as the conveyance is executed, the estate is, in law, vested in the mortgagee, and his power to take actual possession exists from that moment. For these principles, see Powell on Mortgages, 79, 80, 81.

The mortgagee is the absolute proprietor and the true owner, i Vez. 361, Ryall v. Rowles.

If lands be mortgaged to one, the interest in them is in the mortgagee before forfeiture; for he has purchased the lands upon a valuable consideration, as the law will intend; and though the mortgagor may redeem by means of an agreement between the parties, if he does not, the estate, in law, is absolute, without any other act to be done, to pass the estate; although the mortgagor has in him the equity of redemption, 15 Viner, Abridg. 44.

A mortgage is defined to be the appropriation of a specific thing to certain purposes. It does not, in the case of a mortgage, require the delivery of the article, in order to transfer the right and title to it.

A mortgagee of real property may bring an ejectment to get possession against any person in possession; and may also bring an action for the mesne profits; so he may bring trover for personal property, and in the estimation of his damages, a charge for the intermediate produce or profits of the article converted would not be rejected, but would be taken into the account. So he may bring detinue, without any proof of possession in the mortgagee.

2d. Possession, upon common law principles, is not necessary in order to give title in the transference of property. It is true, that possession in the vendor, after the transfer, is prima facie evidence of fraud, and this is the only effect of such possession; but as to the proof of fraud, it is not conclusive. It may be rebutted by testimony showing the transaction bona fide.

The only use in delivering possession, is to prevent strangers being deceived by a false credit, which the possession in the vendor is calculated to produce. This reason cannot be applicable in this case to Butts. 1. Because Butts knew of the mortgage. 2. Because the debt due to him from the Hamiltons was an antecedent debt.

If the Hamiltons had been declared bankrupts, their assignees could not have claimed the vessel or the freight; because both were pledged as a security to Hodgson. See the bankrupt law of the United States.

Upon common law principles, the mortgagee must be considered as the legal proprietor of the vessel.

3d. But the act of the legislature of Virginia, places the question beyond a doubt, and proves that possession is not necessary to constitute the ownership. See Virginia laws, 157, revised code of 1802. 1 Washington, 177.

The legal owner of the vessel is entitled to receive the freight, Marshall on Insurance, 93.

HODGSON

BUTTS.

The mortgagce of a vessel in a late case has been considered as the owner, and as such, liable for repairs done to her before he received actual possession. 7 Term Rep. 306. In this case the decision in Chinnery 7. Blackburne, 1 H. Black. Rep. 117, is not considered

as correct.

The two cases of Jackson v. Vernon, 1 H. Black. 114, and Chinnery v. Blackburne, which will be relied on by the defendant, will, upon examination, be found not to meet the question which arises in this case.

In the case of Jackson v. Vernon, the question was, whether the mortgagee was liable for the repairs to the ship; it was decided he was not, because, the mort gagor himself ordered the repairs; as the person who makes repairs on a ship, has a claim on the person ordering them, it was supposed the credit was given to him, and upon this ground it was held the mortgagee was not liable.

In the case of Chinnery v. Blackburne, Merryfield, acted as the owner; he navigated the vessel, and made all contracts about her, from London to Antigua. He was on board of her on the voyage, and at Antigua gave the command of the vessel to another captain ; he also insured the vessel; and at Antigua, acted personally in command of the ship. This is not like the case at bar; for in this, Hamilton did not furnish the vessel, or man her after the mortgage, nor did he insure her; but Hodgson did the last act. But both cases are doubted in the case 7 Term, 306, and by Abbott, 16, who says, they do not furnish a case for the decision of the question, who is entitled to the freight, which a case of a contract made by the master in that character, will; which is our case.

There is a distinction in a court of equity and a court of law, where the mortgagor acts as the master of the vessel. In the court of equity, he is considered as owner; but not so in a court of law. Marsh. 452, 453. Hamilton never acted as master.

4th. The contract in words, binds and includes the freight. To which it is objected, that future freight is too remote an interest, to be transferred; freight, or a hope, or expectation, is such an interest as may be insured; and, if insurable, it may be granted.

Goods, as well as their expected produce, may be granted, Prec. Chancery, 285. It is not competent for Butts, who claims under Hamilton, to object that the freight it not included or passed by the deed. Cowp. 600.

5th. The objection, that Robert Hamilton exercised authority over the vessel, by giving instructions, is not of any weight, in the mouth of Butts; because Butts had a full knowledge of the lien of Hodgson; and also, because it does not appear that Hodgson authorised this interference.

The directions of James Hamilton, that Butts was to wait until the vessel earned enough to pay him, is also without weight; because James Hamilton was ignorant of the arrangement which his partner had made; and of which Butts might have informed him; but not having done so, he is the more culpable.

6th. Hamilton had no right to appropriate the freight to any other person, than that specified in his deed of mortgage. If he had not, Butts, his servant,

had not.

Butts must be considered, either as the servant of Hamilton, or of Hodgson; if the servant of the former, and undertakes to act as such, he had no right to apply the money in the manner he did. If he undertook the command as Hodgson's servant, he had no right to apply the freight to the payment of a debt due from Hamilton.

7th. Butts having accepted of the command of the vessel, with a full knowledge of the lien upon her, and her future freight, he tacitly consented to apply the freight according to the agreement between Hamilton and Hodgson; if he intended otherwise at the

HODGSON

V.

BUTTS.