$274. Continued-When Record Not Constructive Notice.

The court of Nebraska has recently held the record of a mortgage on growing grain not constructive notice to third parties after the 'grain had been gathered and lawfully placed in a crib or bin. "A mortgage of growing crops,' said Maxwell, J., "does not necessarily imply a mortgage of the same grain gathered and placed in a granary or crib, at least so far as constructive notice to be derived from the filing of the mortgage is concerned. The lien as between the parties continues, no doubt, but our statutes do not favor secret liens, and this court has so declared in a number of cases. Edminster v. Higgins, 6 Neb. 265; Rhea v. Reynolds, 12 Neb. 133; 10 N. W. Repr. 549. A mortgage, therefore, of growing grain is not notice of a mortgage on grain in a crib or bin, when it has been lawfully placed there by the mortgagee, or by the mortgagor with his consent. If wrongfully or unlawfully removed, the rule would probably be different. It is not the policy of the

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law to extend the doctrine of constructive notice to cases where the change in an article mortgaged, made with the consent of the mortgagee, will fail to put a purchaser upon inquiry as to a claim held by a lien on the property. Thus, a mortgage of clay in the bank would not be notice to a purchaser of brick manufactured from such clay; nor of wool growing upon sheep of a lien upon the cloth manufactured therefrom. If the cases supposed differ from the one at bar, it is only in degree. ** The more

E. Repr. 633; and see also, Rawlings v. Hunt, 90 N. C. 270; Spivey v. Grant, 96 N. C. 214; s. c. 2 S. E. Repr. 45; Goff v. Pope, 83 N. C. 127; Norris v. Hix, 74 Iowa, 524; s. c. 38 N. W. Repr. 395; McArthur v. Garman, 71 Iowa, 34; s. c. 32 N. W. Repr. 14; Cole v. Kerr, 19 Neb. 553; s. c. 26 N. W. Repr. 598.

In some states a mortgage of crops thereafter to be raised conveys only an equitable title, and is not notice to third persons, nor good as against such third persons unless possession be taken before their rights attach. Lamson v. Moffatt, 61 Wis. 153; s. c. 21 N. W. Repr. 62; Marks v. Robinson, 82 Ala. 69; s. c. 2 South. Repr. 292. See also, Leslie v. Hinson, 83 Ala. 266; s. c. 3 South. Repr. 443; Jackson v. Bain, 74 Ala. 328; Rees v. Coats, 65 Ala. 256.

salutary rule, no doubt, is to require the mortgagee to look after his security, and if change is made in its character, to see that his mortgage shall impart notice to third parties."'1 While this reasoning is sound, its application to a case where the only change in the property is such as is made in gathering and storing it, is hardly supported by the weight of authority. Thus, as against attaching creditors a mortgage upon a growing crop of oats was held to continue a lien upon them after they had been harvested, threshed and removed from the land; and so, where assorted pickles were at the time of the mortgage in bulk and salt, and were afterwards "greened" and put into bottles and vinegar.3 So, as against a purchaser who bought in the usual course of trade, without actual notice, a mortgage of growing wheat which was afterwards, without the knowledge or consent of the mortgagee, harvested, threshed, removed and sold by the mortgagor, was held to charge constructive notice of a lien on the harvested grain. A purchaser, however, has been accorded protection where the sale of that portion of the crop purchased by him was necessary to enable the mortgagor to harvest the remainder."

1 Gilliland v. Kendall (Neb., 1889), 28 Cent. Law J. 543. See also, Lamson v. Moffatt, 61 Wis. 153; Marks v. Robinson, 82 Ala. 69.

2 Rider v. Edgar, 54 Cal. 127; and see also, Kimball v. Sattley, 55 Vt. 285; s. c. 45 Am. Rep. 614.

3 Crosby v. Baker, 6 Allen (88 Mass.), 295. A mortgage of leather cut and prepared for the manufacture of shoes, has been held to cover shoes subsequently made therefrom by the mortgagor, as against attaching creditors. Putman v. Cushing, 10 Gray (76 Mass.), 334.

4 Duke v. Strickland. 43 Ind. 494; and see also, Hackleman v. Goodman, 75 Ind. 202; Smith v. Jenks, 1 Denio, 580; Wilson v. Prouty, 70 Cal. 196; s. c. 11 Pac. Repr. 608. Failure to specify the year in which the crops are to be grown vitiates the description. Penning v. Jones, 57 Iowa, 37; s. c. 10 N. W. Repr. 274.

As against third persons, the validity of mortgages of crops to be thereafter raised, and of property to be thereafter acquired, is denied in several states. Lamson v. Moffatt, 61 Wis. 153; Marks v. Robinson, 82 Ala. 69; First Natl. Bk. v. Comfort, 4 Dak -; s. c. 28 N. W. Repr. 855; Griffith v. Douglass, 73 Me. 532; s. c. 40 Am. Rep. 359; Loth v. Carty, 85 Ky. 591; s. c. 4 S. W. Repr. 314.

Etheridge v. Hilliard, 100 N. C. 250.

$275. Conveyances and Mortgages of Vessels. The statutes of the United States provide that no bill of sale, mortgage, hypothecation or conveyance of any vessel, or part of any vessel, of the United States, shall be valid against any person other than the grantor or mortgagor, his heirs and devisees, and persons having actual notice thereof, unless recorded in the office of the collector of customs where such vessel is registered or enrolled.1 Where a transfer or mortgage of a vessel has not been recorded as required by this act, a subsequent purchaser or creditor of the person having the apparent legal title of record, if without actual notice, will be protected as against the real or equitable owner. Recording is not necessary as against one having actual notice.3 The statute applies only to vessels of the United States, and not to one that has never been registered or enrolled at all under the laws of the United States. In such latter case a mortgage or other conveyance of the vessel must be recorded in conformity with the laws of the state where the vessel is at the time.* Ships, or vessels of the United States, are the creations of

1 Rev. Stats., §4192; Act of July 29, 1850. The statute provides for acknowledgment before a notary or other officer authorized as in case of deeds; Acts of March 3, 1865; also for certificates of discharge and cancellation of liens, and for the giving of certified copies, by the collector, of all material matters appearing on the record books. It exempts from record the lien by bottomry on any vessel created during her voyage by a loan of money or materials necessary to repair or enable her to prosecute the voyage. This exemption refers only to maritime liens, and not to those created by statute. The Kate Hiuchman, 7 Biss. 238; Bolton v. The J. L. Pendergast, 30 Fed. Repr. 717; see post, §276; Brig Atlantic, Newb. 514; Thorsen v. Schooner J. B. Martin, 26 Wis. 488; The Tonawanda, 29 Fed. Repr. 877.

2 Hance v. Antone, 1 Tex. Civ. App., $800; Sloop Mary, 1 Paine, 671; The Romp, Olcott's Adm. 196; The Archer, 15 Fed. Repr. 276. Where the apparent owner holds the title in trust, third persons without notice of the trust will be protected. Atherton v. Phoenix Ins. Co., 109 Mass. 32.

3 Hance v. Antone, supra; The John T. Moore, 3 Woods, 61; Moore v. Simonds, 100 U. S. 145; Merrick v. Avery, 14 Ark. 370; Best v. Staple, 61 N. Y. 71.

4 Veazie v. Somerby, 5 Allen (87 Mass.), 280; Foster v. Perkins, 42 Me. 168; Goodenow v. Dunn, 21 Me. 86.

the legislation of congress, and are such as have been built in the United States, and belonging wholly to citizens thereof, and have been duly registered under her laws, or if coasting vessels, such as have been enrolled and licensed as such. The record of a conveyance or lien elsewhere. than in the collector's office at the home port of the vessel is of no effect. The temporary registry, when the owner acquires title to a vessel in a district other than that in which he resides, continues only until the vessel arrives at the home port to which she belongs, and which is thenceforth the place for recording under the statute, and not the place of her last registry or enrollment. Prima facie the home port is the place of enrollment where, or nearest to which the owner, or if more than one owner, the managing owner, resides.3

1 Act of Feb. 18, 1793, §1; White's Bank v. Smith, 7 Wall. 646; 23 Myer's Fed. Dec., §1413; Stinson v. Minor, 34 Ind. 89; Best v. Staple, supra; Davidson v. Gorham, 6 Cal. 343; Perkins v. Emerson, 59 Me. 319.

A pleasure yacht is not a vessel of the United States within the meaning of this recording act. Veazie v. Somerby, supra; nor is a canal boat or scow, though found upon a navigable river at the time it is attached. Hicks v. Williams, 17 Barb. 523. A steam dredge is a ves

sel within the meaning of the law as to maritime liens for supplies. The Pioneer, 30 Fed. Repr. 206.

A vessel though used wholly within the navigable waters of a single state, if enrolled, is within the provisions of the Federal statute requiring a mortgage of her to be recorded in the custom house. Lawrence Hodges, 92 N. C. 672; s. c. 53 Am. Rep. 436.

V.

2 White's Bank v. Smith, 7 Wall. 646: Johnson v. Merrill, 122 Mass. 153; Hays v. Pacific, etc., Co., 17 How. 596; Blanchard v. The Martha Washington. 1 Cliff. 463; The John T. Moore, 3 Woods. 61.

Some earlier cases held that the place of record was in the district of the last registry, though not the home part of the vessel. Potter v. Irish, 10 Gray (76 Mass.). 416; Chadwick v. Baker, 54 Me. 9.

8 The Ellen Holgate, 30 Fed. Repr. 125. It is well settled that a vessel cannot have more than one home port, or be a domestic vessel in more than one state. A fortiori she may, if owned by residents of different states, be a foreign vessel in the port of a state wherein certain of her owners reside. Id. The home port need not be a port of entry. The Lotus No. 2, 26 Fed. Repr. 637. Registry of a vessel is only prima facie evidence of ownership. Bradbury v. Johnson, 41 Me. 582; S. C. 66 Am. Dec. 264.

$276. Continued-Federal and State Statutes. The statutes of the United States as to recording exclude all state legislation upon the subject, whether prior or subsequent to the Federal statute; and a mortgage of a regisistered vessel need not be recorded in pursuance of any state statute in order to give it preference over a subsequent purchaser or mortgagee, if it be duly recorded under the Federal law. So, although before a vessel is registered or enrolled, a mortgage of it will be valid if recorded in conformity with the state law, yet after registry or enrollment of the vessel, such registry ceases to be effectual, and the mortgage must be recorded as required by the laws of the United States.2 Some of the state cases, however, are not in harmony with this construction;3 and among both the state and Federal decisions, there is some conflict as to the character of special liens that are entitled to preference over a lien recorded under the Federal statute. Strictly mari

1 Aldrich v. Etna Co., 8 Wall. 491; White's Bank v. Smith, 7 Wall. 646: s. c. 23 Myer's Fed. Dec. §1412. For prior cases not in accordance with this view, see Shaw v. Chandler, 36 Miss. 296; Cunningham v. Tucker, 14 Fla. 251; Folger v. Weber, 16 Hun. 512; Robinson v. Rice, 3 Mich. 235; Thompson v. Van Vetchen, 5 Abb. Pr. 458; Fontaine v. Beers, 19 Ala. 722; The Grace Greenwood, 2 Biss. 131; Thorsen v. The Schooner Martin, 26 Wis. 488.

2 To hold otherwise would go far to defeat the very object which the registry laws of the United States were intended to secure." kins v. Emerson, 59 Me. 319.

Per

3 See Foster v. Perkins, 42 Me. 168. In Indiana it was held that the record of a mortgage, made under 'state law prior to the registry or enrollment of the vessel, remained effective as notice after enrollment under the Federal statute. Stinson v. Minor, 34 Ind. 89.

Liens given by state laws for supplies furnished a domestic vessel take precedence of a mortgage subsequently recorded pursuant to the act of congress. The Harrison, 2 Abb. (U. S. Dist. of Cal.), 74; The Wm. T. Graves, 14 Blatchf. 189.

The recording act of the U. S. held to affect only rights acquired under written instruments, and not to operate to defeat liens for supplies acquired under state laws. Thorsen v. The Schooner J. B. Martin, 26 Wis. 488.

$4192 of the Rev. Statutes, as to recording of mortgages, does not declare what effect shall be given to the mortgage with respect to other liens. The Favorite, 3 Saw. 405. By permitting the mortgagors to retain possession, the mortgagee assents to such liens as may accrue under the latter's management, incidental to the ordinary business of