(dissenting).
With deference I dissent from that part of the opinion that holds that the appellant’s mortgage is subject to the restrictive covenant to which it was not a party. The Court places its decision squarely upon the ground that it would be “inequitable, if not unconscionable” for the mortgagee of the vessel to be permitted to sell it at foreclosure sale freed of all restrictive covenants.
Believing, as I do, that there is a rational basis of continuing validity for the traditional difference between the principle of law which permits the burdening of real estate with restrictive covenants and that which favors the sale *627of tangible personal property unencumbered by even known restrictive covenants, I think it no more accords with equity and good conscience to permit the owner, Owens, to sit at the closing table and accept the purchase price from Tri-Continental on a mortgage executed by the purchaser without requiring inclusion of the restriction in the mortgage and thereafter to insist that it is binding on Tri-Continental than for TriContinental to be permitted to advance the money which is paid to Owens on a mortgage which is silent as to the restriction, but which is known to it, and later foreclose and sell the mortgaged property free of restriction.
In short, I think no such equity is here established to warrant the fashioning of a rule of law not heretofore shown to be applicable in the sale of chattels.
I would reverse and remand for a dismissal of the intervention.