It appears that one William Folsom, owning seven-eighths of the schooner Scioto, on Feb. 6th, 1857, mortgaged the same to Demond & Robinson, of Boston.
Subsequently, Sullivan Green, having acquired a title to the seven-eighths of the schooner Scioto, thus incumbered, and being indebted to the defendant and to the firm of Davis & Co. of which the defendant was a partner, conveyed the same and the schooner Gloucester to the defendant as security for his indebtedness to him and to the firm of Davis & Co.
On Nov. 23d, 18G6, at the request of Sullivan Green, the defendant conveyed the schooners thus held by him as security, to the plaintiffs, to whom said Green was indebted. At the same time the plaintiffs agreed with the defendant to dispose of the property, and after satisfying the demands held against the vessel by Davis & Co. and by the defendant, that “ the balance, if any remained, shall be placed to the credit of Sullivan Green.”
*54The bill of sale from the defendant to the plaintiffs, and the agreements from the plaintiffs with the defendant are of the same date, and are to be regarded as part of one and the same transaction, and must be so construed.
The plaintiffs agree that when they have disposed of the property, they will satisfy the demands which the defendant and the firm of Davis & Co. hold against the vessels, and that what remains shall be passed to the credit of Green. The Scioto was subject, in the hands of the defendant, to his claims and those of Davis & Co.', as well as to any antecedent outstanding mortgage.
The plaintiffs sold the Scioto for more than the mortgage, having first paid the mortgage. The balance in then’ hands was to be passed to the credit of Green, who was the plaintiffs’ debtor. What was tiffs balance? The plaintiffs took the vessel to sell, and sold the same for more than the mortgage. The balance is what is to be passed to the credit of Green, after paying the defendant’s claims and those of Davis & Co. The defendant would have nothing rmless the Folsom mortgage was paid. If the defendant paid the Folsom mortgage, the plaintiffs were to. account for it to, and pay him the same. He would hold the proceeds of the vessel as security for the amount of such payment equally with the other claims for which the vessel was held. If the plaintiffs paid this debt, they only paid what they would have been obliged to pay the defendant, if he had taken up the mortgage. They advanced the funds instead of the defendant, whom they must have paid had he paid the mortgage. The amount of the mortgage is not to be passed to the credit of Green, or to enure for his benefit as a credit. Yet such would be the effect if the plaintiffs were to recover. Green-was bound to pay this debt to relieve the vessel. It is to be a charge on the vessel, not a credit to Green.
The plaintiffs are not damnified the price of the vessel in his hands. They are entitled to deduct the mortgage debt therefrom. The remaining balance they hold, to be accounted for in conformity with then contract with the defendant, of. Nov. 23, 1866.
The plaintiffs have neither a legal nor equitable claim to recover the sum paid, nor has Green any right to have it passed to his *55credit. It would be grossly unjust to compel the defendant to pay it. It would be against the manifest object and intent of the parties. Plaintiffs nonsuited.
Cutting, Kent, Barrows, Danforth, and Tapley, JJ., concurred. *