It appears by the case, upon which the questions before us are presented, that Isaac V. Baker, *491who was the owner of the steamboat or vessel called the Portsmouth, executed a bill of sale of her to the defendant in this suit, dated December 26,1842. It also appears that the defendant executed to the said Baker an instrument in writing, under seal, dated March 2, 1843, in which he acknowledged the execution of the bill of sale, and stated that it had been executed to him for the purpose of securing and paying certain debts, which were particularly mentioned; and declared that after the payment thereof, he was to refund the residue of the avails to Baker. This instrument also declared that all the provisions contained in it were subject to the payment of such sums as were required to be paid upon a mortgage on the vessel for $8000. The bill of sale, and the instrument executed by the defendant bear different dates, but the last mentioned instrument contains a recital that they were executed on the same day, and the testimony of Dagger shows that such was the fact.
The first question to be considered is, what is the legal effect of the two instruments 1
It is evident that the defendant was not made the absolute owner of the vessel, with the right to take possession of her, and use her as his own, without further accountability. He was vested with the ownership, it is true, but only for a particular purpose; that is, to secure and pay certain debts due by Baker, and to return the residue of the avails to him. If in the mean time, however, Baker had paid the debt, inasmuch as the purposes of the transfer would have been satisfied, there is no doubt that he would have been equitably entitled to a retransfer to himself; or, in other words, he had the right of redemption. And, in whatever light the defendant is to be regarded, his rights are certainly not greater than those of a mortgagee.
It would appear from the instrument executed by the defendant, that some of the debts, for the security and payment of which the bill of sale was executed, were not due to him. But that fact would not essentially change the character of the interest acquired by him. It would impose additional responsibilities upon him. It would make him a trustee for the benefit of the other creditors mentioned, to the extent of the debts sta*492ted td be due to them; but it would not require him to take possession of the vessel, and vise her, and receive the profits. Indeed, such a result does not seem to have been contemplated; for the object of the transfer was security, and, if necessary, payment; which was evidently intended to be made by a sale, for a provision is made for the disposition of the residue of the avails after a sale.
The next question to be considered is, whether the defendant is liable for the work which was done upon the vessel, between the time of the execution of the two instruments, and the final Sale 'l
It appears from the testimony of Cagger, that the defendant did not in fact take possession, but that, on the contrary, Baker remained in possession, receiving the profits, while the services, to recover the price of which this suit was brought, were rendered, and until the final sale of the vessel by the defendant on the 20th of July, 1844; and that the defendant then took possession by his agent for a few minutes only, and merely for the purpose of making a sale.
It js well settled that a mortgagee of a vessel, out of possession, is not liable for repairs. (Thorne v. Hicks, 7 Cowen, 697. Ring v. Franklin, 2 Hall, 1. McIntyre v. Scott, 8 John. 159. Champlin v. Butler, 18 Id. 189. Miln v. Spinola, 4 Hill, 177.) And, in the case qf Leonard and McCartee v. Huntington, (15 John. 289,) where a contract had been entered into for the sale of a vessel, and possession had been taken immediately, but it was agreed that a bill qf sale should not be given until the whole of the purchase money was paid, and, in the mean time, the register stood in the name of the original owner, who, however, exercised no control over the vessel, it was held that he was not liable for repairs made by the direction of the master. (See also Wendover v. Hogeboom, 7 John. 308, S. P.) In the case of Thorn v. Hicks, (7 Cowen, 697,) the owners of a sloop entered into a contract with another person that he should take and run the sloop in the freighting business, and out of the avails should pay the owners a certain sum of money, but that, qntil that was paid, the legal title should remain in the *493vendors, and, when paid, should vest in the vendee. The vendee took possession of, and used the sloop; and it was held that the vendor was not liable for the acts or contracts of the master. And in the case of Dunham & Browning v. Mellen et al. which was decided in this court at the last September term, where the owner of a vessel had executed a bill of sale, and delivered possession of the vessel to the vendee, but the bill of sale was left in escrow, until the vendee should complete his payments, it was held that the vendor was not liable for repairs put upon the vessel, during the time when she was in possession of the vendee, and while the bill of sale remained in escrow.
The principle which is to he deduced from all these cases is, that the holding of a bill of sale, or having the mere legal title to a vessel, does not of itself render a party liable. The credit is supposed to be given to the party in possession acting as owner, and, as long as he remains in possession, with the consent of the party holding the legal title, and manages and controls the vessel, and receives the profits, he is, for all practical purposes, the owner; especially when he is so treated by the persons doing work upon the vessel.
In the case before us the whole credit must have been given to Baker. He acted as owner, and received the profits. The defendant derived no benefit under the bill of sale to him, except so far as the right to sell the vessel and pay the debt due to himself, was concerned. If he chose to select his own time for exercising that right, it was a matter solely between himself and the persons for whose benefit the sale was to be made. At least, a person doing work for the vessel, on the credit of the party in possession, could have no right to complain.
We are of opinion, upon the case presented to us, that judgment should be entered fqr the defendant.
Judgment for the defendant.