Hozey v. Buchanan,
41 U.S. 215 (1842)

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U.S. Supreme Court

Hozey v. Buchanan, 41 U.S. 16 Pet. 215 215 (1842)

Hozey v. Buchanan

41 U.S. (16 Pet.) 215


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.

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