Page:Federal Reporter, 1st Series, Volume 7.djvu/125

 THE B. F. WOOLSBT. 113 �of the bill to his taking her away, he went away to try to raise the money to meet the bill, but was unable to do so. An unsiiccessful attempt, also, was made to arrange security. These circumstances, and the greater probability on all the testimony of the libellant's version of the affair, are sufficient to determine this point in libellant's favor. �4. It is also claimed in the answer that the libellant bas lost his lien by causing the vessel to be sold at public auction under the judgment in said proceeding in the state court in satisfaction of his pretended lien. That proceeding in the state court bas recently been the subject of litigation in this court and in the circuit court, and it bas been held that it was void so far as it assumed to affect the title of the vessel for want of jurisdiction in the state court. The B, F. Wool- sey, 3 Fed. Eep. 457 ; 4 Fed. Eep. 552. While, however, the proceeding as a legal proceeding was void for want of jurisdic- tion, yet it was promoted by an act of the libellant, and the question is whether the sale made under that proceeding bas operated to extinguish the lien. The libellant instituted that suit, caused a receiver to be appointed therein, had the inter- est in the vessel of Terrell, the owner, and Whitehead, a mort- gagee, the defendants in the suit, sold at auction under the judgment, and bought it in at that sale, and took a bill of sale from the receiver. The receiver never, in fact, took pos- session. The actual possession remained with the libellant as before. There was no delivery to him by the receiver ex- cept the delivery of the bill of sale. It is to be assumed, of course, now, that no title vested in the receiver, and no title passed by the sale or by the bill of sale. The whole proceed- ing was a nullity, and inoperative as eflfecting the title. It bas been so declared to have been null and void by the state court in which the suit was brought on motion of this libel- lant, though against the opposition of this claimant. There was no sale, in fact, of anything, but a mere attempt to sell, which was futile and inoperative. There was the appearance of a sale merely. What was done created no new title, nor vested any new possession in the libellant or in any other per- �son. �v.T.no.l— 8 ��� �