Page:Federal Reporter, 1st Series, Volume 7.djvu/126

 114 FEDERAL REPORTER. �The libellant, though upon the basis of his supposed new title he averred himself to be the owner, and as such sought to be admitted to claim and bond the vessel in this court, is not estopped by such averment in his pleading in this court, or in the state court, now to deny that he ever had any such title, because the fact has been conclusively found against him on this point upon a litigation relating thereto between himself and this claimant. Does this void sale, or attempt at a sale, of claimant's interest by the libellant, however, constitute such a tortious dealing rnih the property on which he had a lien that he has thereby forfeited or waived his lien ? This is the only question in respect to his acts, as operating to extinguish his lien, raised by the answer. A lienor who coiaverts the property on which he has a lien — as, for in- stance, by selling and delivering it to another person — undoubtedly forfeits his lien. His possession is gone, and he has asserted a right over the property inoonsistent with his lien. The lienor is not allowed to claim a lien and to deal with the property as his own. This would be incon- sistent with good faith. But, admitting this principle, no case is cited which goes so far as to compel me to hold that this void sale in and of itself worked a forfeiture or waiver of the lien, which is a lien very much fayored by the law. The libellant thought he had a right to foreclose the lien under the state law. He believed he had acquired a title under that law. In this he was mistaken. And this supposed right he asserted in this court. That act is not, however, made the basis of the claim that the lien is extinguished. But there is no evidence of any dealing with the vessel herself in connection with this auction sale, nor is any such thing alleged in the answer. What was done in making this sale was done not to or with the vessel herself : it was a sale in f orm, but unaccompanied by any actual dealing with. the ves- sel. It is not even shown that the libellant resisted the claim- ant's demand for the vessel, on the ground that she had beeome his own property under this sale, which might have worked a forfeiture or waiver of his lien. If his actual pos- session had been iiiterrupted, and the receiver had taken ��� �