The opinion of the Court was drawn up by
Weston C. J.In the Portland Bunk v. Stubbs, 6 Mass. R. 425, it was laid down, that a mortgage of a chattel is not valid, without possession by the mortgagee. And in Tucker v. Buffington et al., 15 Mass. R. 477, the Court say, “ it may well be doubted, whether a mortgagee, who might have taken possession, but never has, can be considered as owner to any purpose whatever.” Smith being, at the time when he made his bill of sale to Tarbox, sole owner of the brig, might have given him possession of the part secured to him. She remained at Portland, at no great distance from the residence of the defendant, for twenty-one days, before Smith conveyed the other half to Winslow. For any tiling which appears, while she was plying from port to port, in coasting-trips that season, the defendant might readily have obtained information of her position, and might thereupon have taken possession, but no movement to this effect was taken by him, until October or November, when the attempt failed. This was not ex*136cused by bis ineffectual order on Winslow, to have his name, instead of Smith’s, inserted in the enrolment. If actual delivery or possession is essential to give effect to such a mortgage, it does appear to have been wanting in this case ; and the omission is not excused by the facts agreed. But we do not place the decision of the cause upon this point, being of opinion, that the defendant is entitled to judgment upon other grounds.
If the lien, intended to be .created, by the bill of sale to the defendant and the bond to Smith, took effect, the position of the defendant was that of a mortgagee, who had not taken possession. In Chinnery v. Blackburne, 1 Hen. Bl. 117, note, it was said by Lord Mansfield, that “ till the mortgagee takes possession, the mortgagor is owner to all the world, and he is to reap the profits.” And it was accordingly held, that such mortgagee was not liable for repairs in Jackson v. Vernon, 1 Hen. Bl. 114. Opposed to this opinion, is the dictum of Lord Kenyon, in Westerdell v. Dale, 7 T. R. 306.
In Philips v. Ledley, 1 Washington’s C. C. Reports, 226, Washington J. fully sustains the cases, cited from Henry Blackstone, with which he insists, that of Westerdell v. Bale is not necessarily at variance. And although he admits, that the mortgagee of a vessel, before possession delivered, has the legal title, yet he decides, that he is not responsible for repairs, or entitled to her .earnings. In McIntyre v. Scott, 8 Johns. R. 159, the Court approve the decision in Jackson v. Vernon, and held, that a mortgagee out of possession, was not liable for supplies furnished to the ship. This last case, as well as the two cited from Blackstone, is distinctly recognized and approved in Thorn v. Hicks, 7 Cowen, 697. The weight of American authority then, is manifestly against the liability for repairs, of a mortgagee, out of possession.
But in this case, the mortgagor, Smith, was not only in possession, employing the vessel for his own purposes, and on his own account, but the repairs, for the payment of which the plaintiff claims contribution of the defendant, were made by Tapper, the consignee of Smith, at the request of Smith. It does not appear, that at the time they were made, he was advised, that the defendant had any interest whatever. Tapper’s contract was therefore with Smith, the mortgagor in possession. In the original text of *137Abbott, as cited by Story, Story’s Abbott, 19, note, Abbott states, that where repairs are ordered by the mortgagor, they may be reasonably deemed in law, to have been furnished on his credit.
It is insisted, however, that the defendant rendered himself liable by his letter to Tupper, dated February seventh, and received on the eighteenth of that month. Tho repairs had then been made by Tupper, as the consignee of Smith, and by his order. The defendant directed Tupper, first, to take possession for him; secondly, to cause the vessel to be enrolled in his name ; thirdly, to sell her if he could ; and lastly, if that could not be done, he authorized him to repair her; but specially directed him, in no event, to suffer the vessel to leave tho port of Charleston without taking possession, and causing her to be enrolled in the defendant’s name. Tupper failed to comply with these requisitions, taking no measures for the benefit of tho defendant, after the receipt of his letter. If the defendant was not liable before, he cannot be made so by that letter, upon the facts agreed.
Upon the whole, the opinion of the Court is, that the action is not sustained.
Plaintiff nonsuit.