The Schooner Marion.

made, the shipwright voluntarily yield up that possession without payment of his charges, his lien is gone, and is no longer capable of being enforced in any manner whatsoever.

These being the undisputed principles regulating this subject, two questions have been argued at the bar in the present case.

The first is, whether, upon the whole evidence, there was any such possession of the schooner claimed by the libellant in this case, as created a lien for the repairs and the materials sued for, at the time when the libel was filed.

The second is, whether, assuming such possessory lien then to exist, it is such a lien as can be enforced in the admiralty jurisdiction, considering the schooner to be a vessel employed (as without doubt she was) in maritime trade and navigation. Upon this last point, I do not think, that the slightest doubt can now be entertained.

Since the decisions made in the Supreme Court, the question is not, how the lien arises under the local law, whether it be by statute, or by the common or by the municipal law. That is wholly immaterial. The lien is enforced, because it is of a maritime nature; and the moment its existence is established, the jurisdiction of the Admiralty attaches to it proprio vigore. Such, as far as I know, has been the uniform understanding and practice, in all the Admiralty Courts of the Union. In respect to the other question, it involves rather the consideration of matters of fact, than of law. I pass over, without remark, every thing, which has been suggested at the argument, in respect to the joint possession, asserted in the original libel, by Spooner and the libellant (McFarlin), and their joinder, in one suit, of their respective independent claims for work, and labor, and materials. After the severance of the suit in the Court below, the present appeal brings nothing, but McFarlin's claim, before the Court; and the sole ques

The Schooner Marion.

tion is, not whether he and Spooner had, or could have, a joint possession upon their separate and independent claims and liens; but whether McFarlin had such a possession and lien, as he now asserts in his own libel, to sustain his separate suit.

The facts, as they appear in the evidence, are these. McFarlin is a shipwright by trade, and has his ship-yard, where he repairs ships, on a small island, about one half of which he hires of the owners in fee, Messrs. Randall & Haskell, who have also a wharf on the premises. McFarlin has been accustomed to use this ship-yard, and make repairs at or near the wharf, for about seven years. By a contract and understanding between Randall & Haskell and the libellant, the libellant is at liberty to repair any vessels at their wharf, and fasten them there; and the wharfage during the repairs, instead of being charged to the libellant, is charged to the owner of the vessel repaired. In this very case, the schooner Marion was brought from a wharf on the other side of the channel by the libellant and his workman and certain riggers, and fastened at the wharf during the repairs. The wharfage was charged to the Marion, and has not yet been paid by any person. During the time of the repairs by the libellant, from the 28th of October to the 21st of November, 1839, when they were completed, the libellant and his workmen were on board every day. One David Field also, during a part of the time, while these repairs were going on, was on board doing work as joiner, in the cabin; and his work was not completed until about the beginning of January, 1840. Spooner was doing the work of a painter on board during a part of the same period. While the repairs were making, Goodwin, the owner, having become embarrassed and in doubtful circumstances, the libellant became solicitous about his pay; and accordingly he constantly told Field, that he

The Schooner Marion.

should insist upon his retaining possession of the schooner, until he was paid in full. He also directed one of his workmen, who was employed by him in a neighbouring shop, to keep a constant watch upon the vessel by day and by night, and if any person attempted to remove her without his leave, to prohibit him. The libel was filed in the District Court, on the 19th of December, 1839; up to which time, and afterwards, the schooner remained fastened at the wharf, the libellant going constantly on board, and asserting his intention of holding the possession, to Field, who was at work on board; and during all this period no person attempted to remove the schooner. So far, then, as any evidence exists in the case, the original possession taken by the libellant, when he undertook to repair the schooner, and for this purpose carried and fastened her to the wharf near his ship-yard, was never disturbed or interfered with.

Now, upon this posture of the facts, it seems to me, that the possession of the schooner must be deemed to have been originally taken and held by the libellant from the time, when he fastened her to the wharf, until the time, when she was libelled. He took, and held all the possession, which, in the critical circumstances, he was able to take; and he asserted his right of possession openly. It is not necessary to say, that this possession was to be treated as to all intents and purposes a possession exclusive of the owner. In one sense,

it was the possession of the owner, and under him, and not adverse to him, and in the nature of a bailment. But it was such a possession, as is, in my judgment, sufficient to found a lien upon that possession with the consent of the owner. If the schooner had been hauled up within the known limits of a ship-yard, owned or hired on a lease by the libellant, no one could doubt, that the possession of the schooner there would be such a possession as would found a lien, even though

The Schooner Marion.

other workmen for other purposes were admitted to be on board, such as ship joiners, and riggers, and painters.

The possession for some purposes may well be deemed the possession of the owner, as for example, to entitle him to an action for any tort done to the vessel. But for the pur

pose of founding a lien in the shipwright, the possession must be deemed in the shipwright; as much so, as if the repairs had been made in an enclosed dock-yard of the shipwright.

Then, does the fact, that the wharfage was to be charged to the owner of the schooner make any difference?

I think not. It was a mere arrangement between Randall

& Haskell and the libellant, for their mutual benefit, with which the owner, as such, had nothing to do.

It amounted to an agreement on the part of Randall & Haskell, that they would look for their pay to the owner, and not to the libellant; but was not any waiver of the possession by the libellant, founded on his general use of that wharf for the purposes of his business. Under the arrangement between Randall & Haskell and the libellant, the wharf was as much to be deemed in his possession and under his control, for the purpose of the repairs, as, under his lease, were the neighbouring ship-yard and other grounds.

Whoever seeks to devest an apparent possession of a shipwright, should, as I think, show, by incontestable proofs, that the real possession was understood between the parties to remain in the owner. That would naturally be inferred, if the ship should be repaired at the wharf or dock of the owner, or at the wharf or dock of a third person, by a direct contract between the owner of the wharf and the owner of the ship, with which the shipwright had no privity or connexion. But, here, the only arrangement actually made, is between the shipwright and the owner of the wharf; and this not for one vessel, but for all vessels, which the shipwright should or

might repair there.

Foster v. Hilliard et al.

The license was to him generally, and

not for repairs for any owner in particular.

Upon the whole, my judgment is, that the decree ought to be affirmed with costs.

SAMUEL C. FOSTER

บ.

ABRAHAM HILLIARD AND ANOTHER, EXECUTORS.

When a sale of real estate is made jointly by persons having independent interests, in the absence of other countervailing circumstances, the purchase money is to be divided according to their respective interests. In the case of a tenant for life, remainder in fee, of lands under mortgage, the parties contribute to discharge the incumbrance according to the relative value of their respective interests, calculated according to the value of the estate of the tenant for life by the common tables.

The same principle applies, where a mortgagee devises the mortgaged estate to one for life, remainder over in fee.

A court of equity will decline to interfere in adversum to change real estate, by a sale, into personal estate, without imposing conditions, by which the proceeds shall retain throughout the character of the original fund. Yet it would be different, if there had been a voluntary sale by the parties. Certain real estate was devised to A. for life, remainder to certain minors in fee. A., with the consent of the guardian of the minors, sold the land, but died before receiving the whole of the purchase money, and the residue was received by his executors. Held, that the rights of the parties were absolutely fixed at the very time of the sale; and that the executors of the deceased and the remainder men were entitled to share in the proceeds, according to the interests of A., and the remainder men at that time. Held, also, that the interest of the tenant for life was to be determined, not by the time, when he actually died, but by the value of his life, as ascertained by the common tables at the time of the sale. And although he died within four years from the time of the sale, yet his interest was to be calculated for about twenty years, as that was the duration of his life, as ascertained by the common tables.