#### Alexander Birkbeck, *versus*Fanning C. Tucker, Robert Carter, Richard S. Williams, Henry Packard, John H. Howland and Richard Morell.

A mortgagee of a vessel, out of possession at the time supplies for her are furnished, but who takes possession subsequently, is not liable for the supplies furnished before his possession commenced.

Although the bill of sale, or instrument by which the mortgagee exhibits his title, be absolute upon its face, he may show, nevertheless, by parol evidence,- "what the real nature of his interest was: and it is not necessary that the *defeasance*(or evidence showing the apparently absolute interest,to be a mortgage) should be in *writing.*

Where an action was brought'against the defendants *jointly,*and all of them except *one*admitted their liability, it was held that the plaintiff was not entitled to recover against those, who admitted their liability without convicting him, also, who made defence.

Notice was given to the defendant, who contested the plaintiff’s right to recover against *him,*to produce certain books relative to the vessel, which were kept by the ship’s husband,—the *other*defendants admitting that they were in his possession. Held that *their*admissions would not affect the defendant, who made the defence, but that the plaintiff was bound to prove the books to be in his hands, before parol evidence of their contents could be offered.

This was an action of *assumpsit*brought against the defendants as owners of the ship De Witt Clinton, to recover the amount of a bill for certain chains furnished for that vessel.—The defendant, *Howland,*severed from the other defendants, in his defence, appeared by a separate attorney and pleaded the general issue.—Morell was defaulted, but the other defendants appeared by the same attornies and made a joint defence.

The cause was tried before Mr. Justice Oakley, and at the trial the plaintiff proved the delivery of the articles for which the action was brought, *to the master*of the vessel.

The defendants, Tucker, Carter, Williams and Packard, admitted their part ownership, and that the amount claimed was *122due to the plaintiff; and they were willing that a verdict should pass in his favour, provided *Howland*were made liable also. The latter in his defence introduced evidence to show that all the articles stated in the plaintiff’s bill of particulars, except the two last, (amounting to the sum of *¿223*29,) were furnished before he had any concern with the vessel, and that his interest in her was that of a mortgagee merely.

It appeared at the trial, that the vessel was built by S. & F. Fickett, of the city of New-York, for themselves, and the defendants Tucker, Carter, Williams, Packard and Morell, and that originally *Howland,*had no interest in her. When the vessel w as about to be completed, (viz., on the 24th of March, 1828,) S. & F. Fickett being desirous of borrowing the sum of $8,000 of Howland, gave him an absolute bill of sale, of their interest in the ship, amounting to three eighths thereof, which was intended, however, as a mere collateral security for the loan. Howland never took possession, nor interfered with the vessel, until the month of July, 1828, when the Ficketts failed ; and then, with their consent, he sold out their interest in the ship, and credited them with the proceeds of the sale. The articles, for which this action was brought, were all furnished before Howland took any direct interest in the vessel, and before the failure of the Ficketts. Howland, for the purpose of proving that his interest in the vessel, although apparently absolute by thebill of sale, was in fact and truth but a mortgage, called F. Fickett as a witness : but the counsel for the plaintiff objected to the introduction of any parol proof to contradict or explain the written instrument, or to show that the bill of sale was given as collateral security for the loan. This objection was overruled by the presiding Judge, who was of opinion that if the bill of sale was intended as a mortgage only, that *that*fact might be shown, by parol, and Fickett was sworn as a witness.

He testified that the bill of sale was given as a collateral security merely, and that Howland was to reconvey to the borrowers their interest in the vessel, upon being repaid the amount of his demand. The counsel for the plaintiff excepted' to the opinion of the Judge, permitting this evidence to he given. It appeared further, *123that the vessel, after she was completed, was put into the New-Orleans trade,—that one John W. Russell was appointed by the -other owners, the ship’s husband, and that all the accounts relat*iag*to the vessel were kept by him. At the trial, the counsel for the plaintiffs called upon the defendant, Howland, to produce the hooks of Russell, pursuant to a notice, which had been given for that purpose. But the counsel for Howland denied that they were in his possession, and contended that as his defence was adverse to that of the other defendants, who admitted their liability, and were interested to cause a joint recovery against *all,*the course for the plaintiff to pursue, was, to bring Russell into Court with the books, by a *subpoena duces tecum.*

The counsel for the *other*defendants, however, admitted that the books were in Howland’s possession, and that he had not brought them into Court, pursuant to the notice. The plaintiff then offered to give parol evidence as to the contents of the books; but to this the counsel for Howland objected, on the ground that as the books were not proved to be in his possession, and he had denied that they were so, their contents could not be given in evidence against him.

The Judge 'decided that such evidence could not be given as against Howland, and the counsel for the plaintiff excepted to his opinion on this point.

The plaintiff then gave in evidence a certificate, produced from the Custom-house, bearing date the 31st of March, 1828, and signed by S. & F. Fickett,—setting forth that the De Witt Clinton was built under their direction, during that year, for Henry Packard, *John II. Howland,*Fanning C. Tucker, Robert Carter, Richard S. Williams, and Richard Morell. The certificate also set forth the dimensions and measurement of the ship, her bur-then, &c. Upon this point Fickett testified that the certificate was given for the purpose of having the vessel enrolled, in obedience to the act of Congress, and that such certificates often express the names of persons other than those for whom the vessel was built. He also testified that Howland saw and approved of .the certificate before it was filed.- ,

*124Upon this state of facts, the Judge charged the jury that the plaintiff was not entitled to recover as against the defendant How-land, for any of the articles furnished prior to the date of his bill of sale; and that as to the balance, it was for the jury to say, whether Howland was a mortgagee in, or out of possession, at the time the articles were furnished. If in possession, he would be liable, but not otherwise. The judge also instructed the jury, as this was a joint action, against all the defendants, that the plaintiff must recover against *all,*or he could not recover against *any.*

The counsel for the plaintiff excepted to this opinion and charge, and then submitted to a nonsuit, with leave to move to set the same aside on a case made.

A case having afterwards been made pursuant to this permission, the cause was now argued by *Mr. Sackett*for the plaintiff, and by *Mr. G. F. Taiman*for all the defendants except Howland. But as their object was to malte Howland contribute, their counsel maintained the same propositions in substance which were relied upon for the plaintiffs.

They contended—

I. That parol evidence should not have been admitted to prove that the bill of sale from S. & F. Fickett to Howland was a mere collateral security or mortgage. That the instrument being a *deed*could not be controlled, explained, or defeated, by a mere verbal understanding between the parties; that upon the happening of a certain contingency, it should become inoperative. It is a general rule, that a deed, absolute in its terms, cannot be shown to be a mortgage by mere parol evidence. [13 *Mass. R.*443. *Comp.*47. 3 *Camp. R.*57. 3 *B. and Md.*233. 1 *Stark.*361. 2 *B. andJlld.*367. 5 *Comen’s R.*485. 12 *J. R.*488.. *Stark, on*JEu. 1002 *to*1008. 2 *Conn. R.*215.]

There is an exception to this rule, it is true, in chancery, which allows a deed *apparently*absolute, to be proved a conditional one, merely .* but this *exception is*only applicable to those cases where a grantee fraudulently attempts to convert a deed which was intended to be conditional into an absolute one. And even this is *125confined to cases between the immediate parties to the deed; for a third person is not bound by the dealings between the.original parties. [4 *J. C. R.*167. 6 *lb.*417. 1 *lb.*594. *2 B. and Aid.*134.]

It will be found upon an examination of the leading cases, that a *written*defeasance of as high a nature as the deed itself, was executed in every instance at the same time with the original deed.

But suppose the testimony to be admissible,—what is its effect on Howland *1*In judgment of law he was in possession, being part owner; for the possession of one joint tenant is the possession of all. [Jones C. J. Not in this case, where you seek to *chrage*him, by means of the possession of a co-tenant.]

But the three-eighths conveyed to Howland must have been in his possession, for the Ficketts had conveyed their interest to him. The possession must have been in them or in Howland. [Jones C. J. As the case stands, that point cannot be discussed. The plaintiff has submitted to a nonsuit, and for the purposes of this argument, Howland is to be deemed a mortgagee out of possession.]

The plaintiff should have been permitted to give parol proof as to the contents of the books kept by Russell, the ship’s husband. They could not have been reached by a *subpana duces tecum,*because they were not in Russell’s possesion *;*and hence the general rule upon this subject is applicable to this case.

III. The defendant Howland was liable for the supplies furnished for the ship, even if he was a mere mortgagee. The plaintiff after having trusted the ship, goes to the Custom-house to ascertain who her owners are. He there discovers the names of all those persons who are made defendants; and he brings his action, against them. One of the defendants comes in and says that he is a mortgagee merely, and thus not liable. How was the plaintiff to know this'? If the defence is to prevail, he is taken by surprise; for there was the same proof of ownership in Howland that there was in the other defendants. The defendant has put it upon record that he was a part owner of this ship, *126and he cannot be permitted to deny the fact, at a moment when it . is his interest to do so. He must abide by his own act, and if he is an owner for one purpose, he is so for all. In the case of *McIntyre v. Scott*[8 John R. 160] there was a *written*defeasance given at the time the bill of sale was executed, and *Champlin v. Butler*(18 John, 169,) was decided upon the ground that there was a special agreement by the master, and that the facts of the case were known to all the parties concerned.

Again, if Howland is liable at all, then he is liable for the whole amount of the bill of particulars. One part of the charges cannot be separated from the other parts, for the defendants are liable as owners, if liable at all. [1 *Cowen's R.*417. 3 *lb.*369. 20 *John R.*122-3. 1 *Sound.*207 *n*2.]

The plaintiff was entitled at all events to a verdict against the defendants, who admitted their liability at the trial, and against the one who was defaulted.—[Upon this last point Mr. Taiman contended, that the plaintiff must fail, unless *all*the defendants were liable. He cited 1 *Chit. Plead.*30. 5 *John R.*176. • 11 *lb.*101.]

Mr. *Slosson*for the defendant,

Howland contended :

I. That Howland had no interest in the vessel when that portion of the demand which precedes the 24th of March, 1828, was contracted, and therefore could not *be*liable for *that.*The other defendants admit their liability, and are in fact the party adverse to Howland; as a recovery against *him*would divide the debt for which *they*are at all events liable in a proper action. The equity of the case is clearly with Howland; for he loaned his money to the Ficketts for the purpose of enabling them to complete their contract with the other defendants. Most of the items for which the action is brought, were furnished before the date of the bill of sale, and *that*was given merely as a collateral security for the loan. Ought these real defendants, then, to succeed in charging Howland with a part of their debts *1*

*127ll. The rule is well settled that a mortgagee out of possession is not liable for supplies furnished to the vessel; *M'Intyre v. Scott.*8 *J. R.*160.] and it was supposed to be too well established to be disturbed. [The Chief Justice here intimated, that the Court did not desire to hear the counsel upon that point, but wished to know whether the defeasance could be by parol.]

*Slosson.*That point also I had supposed was settled by the case of *Champlin v. Butler.*[18 *John,*169.] There is no reason why the parol evidence should not be admitted; for it does not in any way conflict with the deed.

The defendant merely offers to show, that there was a *loan;*and if there was a loan collaterally secured, then the security may be given in the form of an absolute deed, *[Strong v. Stewart,*4 *John C. R.*167.] That third persons are concerned incidentally in the transaction, .can make no difference ; for they have been in no way prejudiced by Howland’s title. They have not trusted *him,*neither has credit been given upon the faith of his being a part owner. This is not pretended either by the plaintiff or the other defendants. But it is said, that by the register, Howland’s ownership appears, and that he is concluded from asserting his real interest, by this documentary evidence. This point, too, has been fully settled by our own Courts, and the register is not evidence of ownership. [14 *John R.*201.] It may be that the tribunals of Connecticut have established a different doctrine : if so, their decisions cannot control the law of evidence as it is settled here.

III. The books of Russell were not in the possession either of Howland or the other defendants, and of course parol evidence of their contents could not be given. The plaintiff should have compelled their production by a *subpoena duces tecum,*directed either to Russell or the person having charge of the books.

IV. It seems to be admitted by the counsel for the other defendants, that as this is an action on a joint contract, the recovery must be joint also. The rule upon this subject is also well settled, and if Howland be not considered liable, then the *non-**128*suit*must stand. As the case is presented, all the facts are to be presumed to be in favour of the defendants ; for the plaintiff after offering his evidence, submitted to a *nonsuit.*We are therefore to have the benefit of all presumptions, and that the defendant, Howland is a mere mortgagee oui *of possession,*is to be considered as proved before the Court.

*Per Curiam.*

The principles upon which this case rests have already been considered and settled in the previous case of *Ring and M’Namara v. Franklin.*The defendant here, was a mortgagee out of possession, and his ownership had' never been the cause or inducement of the credit which was given by the plaintiff. This being his situation in point of fact, he cannot be made liable for supplies furnished to the ship when he was thus out of possession, provided his real interest in the vessel was established by competent proof.

Upon this point the law .seems to be well settled, that whenever there is a loan and a security furnished for that loan, the fact may be shown by parol proof, even though the instrument forming the security, be absolute in its terms and upon its face. It becomes a question of intention entirely, and if the parties intended that the apparently absolute deed should in truth be but conditional, then that fact may be shown in any form of proof which can establish it. It is not necessary that the defeasance should be in *writing;*but the real object of the parties in forming the instrument may be proved by parol. The effect of the instrument is not confined to the immediate parties, at all events, if third persons are not prej udiced thereby. In this case there is no pretence that credit was given to this ship, in consequence of the interest, which was vested in Howland. His part ownership in no wise prejudiced the plaintiff, and Howland cannot be made liable from this cause.

As to the evidence which was offered to show the contents of the books kept by the ship’s husband, we think it was rightly rejected at the trial. There was no proof that they were in How-land’s hands, and the admissions of the other defendants, as to that fact, could not prejudice his rights. If the books were jn Russell’s *129hands he should have been compelled to produce them in the ordinary way, by a *supmna duces tecum.*At all- events, parol evidence of their contents could not be given as against Hoxvland, until the fact was proved that the books were under his charge. To this point no evidence was produced and the testimony offered was rightfully rejected.

As the plaintiff has brought his action against the defendants *jointly,*he must show a right of recovery against *all,*or be non-suited. He has failed to show any liability on the part of How-land, and of course the motion to set aside the nonsuit must be denied.

*Motion to set aside the nonsuit denied.*

[Sackett, *Att'y for the plff.*W. Slosson, *Att'y for the deft.*Howland.] [Hoffman and Tallman, *Atty's for the other defts.]*