An action was brought in the Circuit Court of Louisiana against
the Sheriff of New Orleans to recover the value of a steamboat sold
by the sheriff under an execution as the property of Wilkinson, one
of the defendants in the execution, Buchanan, the plaintiff,
alleging that the steamboat was his property. The defendant, in his
answer, alleged that the sale of the steamboat by Wilkinson to
Buchanan was fraudulent and that it was made to defraud the
creditors of Wilkinson. Before the jury was sworn, the court, on
the motion of the counsel for the plaintiff, struck out all that
part of the defendant's answer which alleged fraud in the sale from
Wilkinson to Buchanan.
Held that there was error in this
order of the court.
By the act of Congress relating to the enrollment of ships and
vessels, it is not required to make a bill of sale of a vessel
valid that it shall be enrolled in the custom house. The enrollment
seems not to be necessary by the law to make the title valid, but
to entitle the vessel to the character and privileges of an
American vessel.
A bill of sale of a vessel, accompanied by possession, does not
constitute a good title in law. Such an instrument, so accompanied,
is
prima facie evidence of right, but in order to
constitute a full right under the bill of sale, the transfer should
be
bona fide and for a valuable consideration.
This was a writ of error brought by C. F. Hozey, to reverse a
judgment obtained against him by William Buchanan in the Circuit
Court of the United States for the Eastern District of
Louisiana.
The original suit was brought by Buchanan by petition filed in
court in which he alleged in substance that he was the sole owner
of the steamboat called the
Nashville, of the value of
$12,000, when she was illegally and wrongfully seized and sold as
the property of William Wilkinson by the defendant, Hozey, the
Sheriff of the Parish and City of New Orleans. He alleged that he
had previously purchased all Wilkinson's interest in the boat,
which was small, namely, one-fifth part; that he had thereby become
the sole owner, and that Wilkinson had no interest in the boat at
the time of her seizure, and that he so notified said sheriff, who
nevertheless proceeded to advertise and
Page 41 U. S. 216
sell her at a great sacrifice, and to the damage of the
petitioner $12,000, for which he prayed judgment.
In his answer and defense to this petition, Hozey denied that
Buchanan ever had any interest in said boat. He alleged, that she
belonged to William Wilkinson, and that he, in his official
capacity as sheriff, having in his hands an execution of
fieri
facias from one of the courts of Louisiana in favor of S. W.
Oakey & Company v. C. McCantle & Company, or Cullen
McCantle and William Wilkinson, did seize and sell said boat, in
virtue of said execution, as he was bound to do, she being then at
New Orleans, and belonging to said Wikinson, one of the defendants
in said execution. He alleged that Buchanan was in New Orleans when
the boat was advertised and sold, and took none of those steps
allowed by law to establish his alleged right to her or to prevent
the sale, and insisted that he had therefore lost all claim on the
respondent. He further alleged that if any sale had been made by
Wilkinson to Buchanan, it was not made with the formalities of law,
but was fraudulent, and made with intent to hinder and defraud the
creditors of Wilkinson.
Both the petitioner and respondent united in the prayer that the
case may be tried by a jury. It was so tried, and a verdict was
rendered in favor of the plaintiff for $8,500, and the court
thereupon gave judgment for the amount of the verdict and costs of
suit.
Before the cause came on for trial, the counsel for the
plaintiff moved the court to strike out all that part of the
defendant's answer which alleged fraud in the sale of the steamboat
by Wilkinson to the plaintiff. This was opposed by the counsel for
the defendant. It was ordered by the court that the same should be
stricken out, to which order the defendant excepted.
On the trial of the cause, the counsel for the defendant moved
the court to instruct the jury that by the act of Congress, bills
of sale of ships and vessels, to be valid, must be enrolled in the
custom house, and as the bill of sale on which the plaintiff relied
was admitted not to have been enrolled, the same could not be
considered as legal title, but the court refused so to charge the
jury, saying to the jury that a bill of sale accompanied by
possession constituted a good title in law. The counsel for the
defendant excepted to this opinion.
Page 41 U. S. 217
Judgment having been rendered on the verdict, the defendant
prosecuted this writ of error.
McLEAN, JUSTICE, delivered the opinion of the Court.
In the circuit court, Buchanan commenced an action against Hozey
for the recovery of the damages he had sustained by the seizure and
sale of his steamboat
Nashville by Hozey, as Sheriff of
the Parish of Orleans. The boat was alleged to be of the value of
$12,000. Hozey, in his answer, denied that Buchanan ever had any
interest in the steamboat. That having received, as sheriff, a writ
of
fieri facias, issued on a judgment in favor of Oakey
& Company v. Cullen McCantle and Wilkinson, the last of whom
owned the said steamboat, and it being within the Parish of
Orleans, he levied upon and sold it at public auction, in
conformity to law, as he was bound to do. That Buchanan knew of the
levy and sale, being then in New Orleans, but took no steps to
arrest the proceedings, whereby he has lost his right, if he ever
had any. And he alleges that if any sale of the boat was made by
Wilkinson to Buchanan, it was not done with the formalities
required by law, and that the sale, if made, was fraudulent and
void, as it was made to defraud the creditors of Wilkinson. The
cause was submitted to a jury, and they found for the
Page 41 U. S. 218
plaintiff of the sum of $8,500. On this verdict a judgment was
rendered.
Before the jury was sworn, the counsel for Buchanan moved the
court to strike out all that part of the defendant's answer which
alleged fraud in the sale from Wilkinson to the plaintiff, which
the court directed to be done. And the counsel for the defendant
moved the court to instruct the jury that by the act of Congress,
bills of sale of ships and vessels, to be valid, must be enrolled
in the custom house, but the court refused so to instruct the jury,
and charged them that a bill of sale, accompanied by possession,
constituted a good title in law. Exceptions where taken to these
rulings of the court.
Evidence was given before the jury, written and parol, conducing
to show the prior ownership of the boat, for what she had been
sold, her employment, the sale to Buchanan by Wilkinson, and the
circumstances connected with it.
The plaintiff in error insists on a reversal of the judgment on
two grounds. 1. The striking out of the answer the allegation of
fraud. 2. The invalidity of the bill of sale, it not having been
enrolled as required by the act of Congress.
The allegation of fraud in the answer, in the sale from
Wilkinson to the plaintiff below, was a most material allegation.
If established, it constituted a good defense to the action. On
what ground this was stricken from the answer, by the court is not
perceived, and cannot well be imagined. No authority has been shown
in the Louisiana law for such a proceeding, and it is believed that
none exists. It would be as novel as it would seem to be unjust to
strike out of the answer, on the motion of the plaintiff, that
which constitutes a good defense, and on which the defendant may
chiefly rely. And this was done, too, before the cause was
submitted to the jury, and consequently before the evidence was
heard. If the answer were defective in setting up incompatible
grounds of defense, and on this account was liable to objection as
a plea that is multifarious, still it would not seem to be the
right of the plaintiff to suggest how the answer shall be amended.
The answer in this case, however, does not seem to have been liable
to this exception. By art. 419 of the Code of Practice, it
Page 41 U. S. 219
is said,
"After issue joined, the plaintiff may, with leave of the court,
amend his petition, provided he does not alter the substance of his
demand by making it different from the one originally brought."
And in art. 420,
"The defendant may also amend his answer, subject to the same
rules, and add to it new exceptions, provided that they be not of
the dilatory kind. After answering on the merits, dilatory
exceptions shall not be raised by way of amendment unless with the
consent of the plaintiff."
By art. 421,
"When one of the parties has amended either his petition or his
answer, the other party has the right of answering the amendment,
but it must be done immediately unless the amendment be of such
nature as to induce the court to grant further time for answering
the same."
The defendant may set up facts different from those alleged by
the plaintiff, and these are considered as denied by the plaintiff,
without replication or rejoinder. Art. 328-329.
By art. 2597 of the Louisiana Code, it is declared that
"Whatever may be the vices of the thing sold on execution, they
do not give rise to the redhibitory action; but the rule may be set
aside in the case of fraud, and declared null in cases of
nullity."
And in the following article, that
"The sale on execution transfers the property of the thing to
the purchaser as completely as if the owner had sold it himself;
but it transfers only the rights of the debtor, such as they
are."
To this effect is the case of
Thompson v. Rogers, 4 La.
9; 3 Mart. 39; 10
id. 222. Independently of the above
authorities, which are full and explicit, no doubt could exist as
to the right of the defendant to set out in his answer his grounds
of defense and impeach the sale of the steamboat from Wilkinson to
the plaintiff below for fraud or on any other ground. But the
allegation of fraud having been stricken from the answer by the
order of the court, the defendant, of course, could not introduce
evidence to prove it. This was an error of the court which we feel
ourselves called upon to correct.
The circuit court did not err in refusing the first part of the
second instruction,
"That by the act of Congress, bills of sale of ships and
vessels, to be valid, must be enrolled in the custom house, and as
the bill of sale, on which the plaintiff relief, is admitted not to
have been enrolled, the same cannot be considered
Page 41 U. S. 220
as a legal title."
The enrollment seems not to be necessary by the acts of
Congress, to make the title valid, but to entitle the vessel to the
character and privileges of an American vessel. 7 Johns. 308. But
the charge that "a bill of sale, accompanied by possession,
constituted a good title in law," is liable to objection. That such
an instrument, connected with the possession, is
prima
facie evidence of right, may be admitted. But in view of the
evidence in the case, there should have been the qualification that
the transfer was
bona fide and for a valuable
consideration. Upon the whole, the judgment of the circuit court is
reversed, and the cause is remanded to that court for further
proceedings.
Judgment reversed.
