Page:Federal Reporter, 1st Series, Volume 8.djvu/351

THE FBANK G. FOWLER. 337 �like degree share pro rata in the proceeds of the res, -without regard to the date o£ their libels or suits, if all are pending together. By '^lien- holders of like degree, " however, I tinderstand him to mean lienhold- ers who by the rules of the maritime law ai-e not, either from the nature of their claims or from the difference in time when they at- tached, entitled to any preference over each other. I think the sub- sequent part of his opinion shows that he does not regard similar claims arising at different times as liens of the same degree, since he distinctly approves the rule that material men are to be paid in the inverse order of the creation of their liens ; and he approves the opin- ion of Judge Hall in The America, where it was held that a lien for damage by collision was of as high a character as the lien of a mii- terial m an, and as between such claims they were to be paid in the order of their creation. �The argument for the, parties first suffering damage is that they acquired a lien on the tug for their damages; that this was a subsist- ing right or interest on the twenty-fifth of November, when the dam- mage of the other party occurred ; that it had not been forfeited or lost by laches; that whatever right or lien the party suffering the second damage acquired in the tug was acquired subject to this existing right and lien; that as their lien was good and available even against a honafide purchaser without notice, so it must be good against a party aequiring any less interest than a purchaser; that the right of the party suffering the second damage cannot be greater than the right of a purchaser would be; that the reasons growing out of the neces- sities of commerce, which have led to the preferring of the last ma- terial man over the earlier ones, do not apply to successive torts, where the crediter is made such in invitum, and no credit is given to the vessel ; that nothing bas happened to displace the earlier lien, and being earlier in time it has the stronger equity, It is true that the delay in libelling the vessel from November 5th to November 25th cannot, on the authorities, be regarded as laches which will operate to extinguish the lien as against the vessel in favor of a purchaser. And the reason why the purchaser takes subject to the lien is that the purchaser takes by contract with the owner, and can take only the title which the owner has to convey, therefore he takes that title subject to all existing encumbrances, including the lien created by the former marine tort, which, as shown by the above cases, is in the nature of a tacit hypothecation of the vessel, an encumbrauce upon v.8,no.5— 22 ��� �