Page:Federal Reporter, 1st Series, Volume 10.djvu/498

 486 FEDERAL REPORTER. �that produces such resulta should be avoided if possible. But there is a further inconsistency resulting from the construction claimed, and it is shown also in the John T. Moore Case. ihis decision, which declares that the law of congress that — �"No bill of sale, mortgage, hypothecation, or conveyance of any vessel, or part of any vessel, of the United States, shall be mlid against any person other than the grantor or mortgagor, his heirs and devisees, and persons hav- ing actual notice tliereof, unless such bill of sale, mortgage, hypothecation, or conveyance is recorded in the office of the collecter of customs where such vessel is registered or enrolled," etc. �— Is valid and must be enforced, concludes by actually enforcing an unrecorded mortgage of a vessel against third persons without notice, in the direct face of the statute, for it gives priority to an unrecorded mortgage over lienholders without notice. �And there is another consideration. If the said section 4192 gives a lien to recorded mortgages, recorded according to its provisions, does it not give a lien, if not an absolute title, to conveyances recorded according to its provisions ? And under it cannot a devisee, by a duly-recorded conveyance, deny all supplies and materials fur- nished the boat in the home port, and in that way defeat the state lien entirely ? �As to the admiralty rules of the supreme court which control pro- ceedings in admiralty, referred to, it is true they afiect remedies and not rights. Yet under the twelfth rule, as it existed prior to 1859 and as it now is, a lien under the local law for materials and supplies may be enforced in admiralty by proeeedings in rem. Is it possible that after such a lien is enforced a mortgage crediter, who has no stand- ing in court but for remuants, oan step in and receive all the pro- eeeds ? And if the act of congress gives a lien to a mortgage recorded according to its provisions, what is the rank of that lien ? Who can say that it is not a better lien than subsequent admitted maritime liens ? �It seems that the theory of a lien being given by section 4192 to a recorded mortgage is destructive of all principles in regard to liens, whether maritime or domestic. Liens are founded on neeessity; "to give credit to the ship;" "to furnish wings and legs;" and "be- eause ships are built to plow the seas and not to rot at wharves." �The foregoing considerations, and the arguments presented in the many cases bearing on this question that I have examined, drive me to the conclusion that the said section 4193, in relation to the recor- dation of conveyances and mortgages on ships, gives no lieu or other ��� �