Opinion of the Court.

the person or property of B, then the state courts have jurisdiction to protect the person, or property so illegally invaded." If the proposition thus laid down by Mr. Justice Curtis is sound, the complainant's bill ought not to have been dismissed, but it has not met the approval of the Supreme Court of the United States. Thus in Freeman v. Howe, 24 How. 450, it was held that, when property was taken and held, however tortiously, under process mesne or final by a court of the United States, it was in the custody of the law and within the exclusive jurisdiction of the court from which the process issued, and that the possession of the officer from said court could not be disturbed by process from any state court. In this opinion the Supreme Court dissents from the language of Chancellor Kent quoted and relied upon by Mr. Justice Curtis in Cropper v. Coburn, supra, and reversed the decision of the Supreme Court of Massachusetts in Howe v. Freeman, reported in 14 Gray, 566, which was based on the decision in Cropper v. Coburn. The decision in Freeman v. Howe is commented upon at length and reaffirmed in Covell v. Heyman, 111 U. S. 176, in which Mr. Justice Matthews delivered the opinion of the court. The same learned Justice, when sitting on the circuit in Perry v. Sharpe, 8 Fed. Rep. 15, refers to Cropper v. Coburn as contrary to subsequent authority. The principle of Freeman v. Howe was reaffirmed also in the case of Buck v. Colbath, 3 Wall. 334, and was followed in Daly v. The Sheriff, 1 Woods, 175, and in Ruggles v. Simonton, 3 Bissell, 325.

The argument is made, however, that none of the Supreme Court cases cited involved a construction or application of section 720 of the Revised Statutes, and that they were all cases where the mesne or final process of the Federal Court first taking jurisdiction had been executed against personal property of which the officer of the court takes actual possession, and that they have no application in the present case, where the process was directed, not against personal property, but against real property, of which the selling court takes no possession under the law of Kentucky, by which the levy of an execution on land merely establishes a lien. McBurnie v. Overstreet, 8 B. Mon. 300, 303. Counsel contend that the only point

Opinion of the Court.

decided in Freeman v. Howe and the other cases cited is that it is necessary to maintain the proposition that the seizure of personal property by the officer of the court under color of process of the court is a possession of the court, however tortious, because for another court to inquire into and dispute the validity of such actual possession would interfere with the dignity and power of the court whose officer has made the seizure, but that no such reason applies with reference to a levy upon real property where no seizure is made. The principle of the decisions in Freeman v. Howe, Buck v. Colbath and Covell v. Heyman has a much broader application than counsel for the appellant concede. The principle is that, in order to preserve the dignity and protect the effectiveness of the process of courts of concurrent jurisdiction, and to avoid unseemly conflicts between them and between their respective executive officers, no remedy of an injunctive or dispossessory character will be afforded by one court against the acts of the executive officers of the other court, when done under color of an order or process issuing from such other court, because it would have the inconvenient and anomalous effect of staying the proceedings in one court to allow another court to investigate the validity of acts done under such proceedings. A replevin of personal property from the hands of its officer, or an injunction against a levy upon personal property by such officer, certainly will not offend the dignity of the court or interfere with the due discharge of business before it, more than would an injunction against a levy on real estate by its officer under color of its process. Moreover, the acts which it was here sought to enjoin were not mere levies upon real estate, but were the sale of it and the execution of a deed to the purchaser with a possible writ of possession, or, at least, with title upon which to found ejectment; so that even if the principle laid down in Freeman v. Howe, supra, and other like cases, only applies when there is to be a conflict of possession between one court and another, we think the remedy here sought would come within their inhibition. Of course in the case of tortious levies upon either personal property or real estate the person injured may always hold the executive officer liable as a tort-feasor for any wrong

Opinion of the Court.

done in any court having jurisdiction, but comity and public policy require him to apply to the court issuing the process under color of which the wrong is or is about to be done for specific relief by order of injunction or restoration of property. In Buck v. Colbath, supra, Mr. Justice Miller points out the two kinds of process under which a sheriff or a marshal acts. In one the order is directed against particular and described property; in the other it is against all or any property of an individual to satisfy a judgment or decree or order of attachment. In the former case the process is a complete protection to the officer executing it. In the latter case the marshal or sheriff is necessarily vested with a discretion to determine what property belongs to the debtor in order that he may levy upon it. For any injury he may do in the exercise of this discretion he may be held liable in damages. The process of the court does not protect him from such an action, but it does shield him from injunction or replevin issuing out of another court, which would seriously interfere with and cripple the execution of the process of the court whose officer he is by preventing an exercise by him of the discretion necessary to its efficiency. In the light of this distinction it is clear that the act, however tortious, of an executive officer of a court, done under color of its process, is to be regarded as a proceeding of that court, with which comity and public policy require that courts of concurrent jurisdiction shall not interfere by injunctive or dispossessory process. If this be the rule of comity and public policy in the absence of a statute, it is conclusive in determining the true construction of section 720 of the Revised Statutes and the meaning of the words used therein, "proceedings in any court of the State." That section was passed, not to preserve comity and harmonious actions between courts of the same sovereignty exercising concurrent jurisdiction, but to attain such an end and prevent unseemly conflict between courts of different sovereignties exercising concurrent jurisdiction over the same territory. The purpose of the statute is so important that a liberal construction should be given to accomplish it.

The decree of the court below dismissing the bill is

Affirmed.

Syllabus.

THE W. B. COLE.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DIVISION OF THE SOUTHERN DISTRICT OF OHIO.

No. 66. Argued February 9, 1893. - Decided November 6, 1893.

If a mortgage has been recorded, the failure to index it does not destroy the priority acquired under the law by recording it; the indexing is for the benefit of subsequent purchasers, and a failure to index properly is a violation of the duty of the recording officer, owing, not to the person tendering the instrument for record, but to subsequent purchasers, who are interested in discovering what the instrument contains.

A person taking title is chargeable with notice of his chain of title, whether the grantees therein are bona fide purchasers or not, and also of all conveyances or mortgages made by any one in the chain of title while he holds title, whether the recording of such instruments occurs then or not, and if upon the record a prior conveyance seems to be defeated by a subsequent one through delay in recording, then the person taking title must inquire as to the facts which might defeat the statutory effect of such prior record. While under the commercial law as administered in the Federal courts a mortgage given to secure a negotiable instrument passes to a bona fide purchaser as free from original equities as the instrument the payment of which it secures, the negotiability of such instrument does not do away with the effect of the recording act, the original equities which are barred by the transfer of the securing mortgage being those equities only of which the assignee has neither actual nor constructive notice. On May 8, 1889, P. sold a boat to E., who mortgaged to P. on the same day. Some time thereafter E. sold to B., who, with knowledge of P.'s mortgage and with intent to defeat it, sold to a towboat company on January 17, 1890, by a bill of sale which was recorded on the same day. P.'s mortgage from E. was recorded on March 6, 1890, but was not indexed until March 30, 1890. The towboat company sold to W. on March 7, 1890, the bill of sale being recorded on March 8, 1890. On the same day W. gave his note at thirty days and mortgaged to B., and the mortgage was duly recorded. B. sold the note and mortgage to O'C. on March 28, 1890, before the note had fallen due. The towboat company had no notice of that mortgage when it bought from B., and at that time the mortgage was not recorded. Held, (1) That, as the towboat company had neither actual nor constructive notice of the existence of the P. mortgage, it was a bona fide purchaser of the boat from B., and that, as its title was recorded before the P. mortgage was recorded, it did not take subject thereto; (2) that, whether W. had notice of the lien or not, he took all

Statement of the Case.

the right in the boat which the towboat company could convey, and that, therefore, he also held his title to the boat free from the P. mortgage; (3) that when W. mortgaged to B. the title to the boat as a mortgagee revested in him, and that B. held the W. mortgage subject and junior to the P. mortgage, which was renewed; and (4) that O'C., who was chargeable with constructive notice of the P. mortgage, bought the W. mortgage subject to the P. mortgage, and that he was not protected by the negotiable character of the note which he received from B. SEVERENS, District Judge, dissented.

Before TAFT, Circuit Judge, and BARR and SEVERENS, District Judges.

This case was begun by a libel filed by Leo Baumgartner against the steamer W. B. Cole in admiralty in the District Court of the United States for the Southern District of Ohio. Baumgartner was the owner of a supply claim against the steamer and libeled her for its satisfaction. The steamer was ordered sold by the decree of the District Court, and the fund was brought into court for distribution between Baumgartner and certain intervening claimants. The question presented on this appeal1 was one of priority between two mortgage claimants, Pate, the appellee, and O'Connell, the appellant. The fund remaining in the court after the payment of prior claims was not sufficient to satisfy both mortgages.

The facts were as follows: C. M. Pate and B. B. Bradley were in the year 1889 joint and equal owners of the steamer W. B. Cole, engaged in navigation on the Ohio River. In May of that year Pate sold his half interest in the boat to John Eshman, Jr., for $1500, of which $500 was paid in cash and the remainder in two notes of Eshman for $500 each, secured by a mortgage on the one-half interest in the boat sold. Bradley, the other owner of the

1 BY THE REPORTER. This appeal was taken from a decree of the Circuit Court of the United States for the Southern District of Ohio, affirming a decree of the District Court of the United States for the same district. The appeal from the District Court to the Circuit Court was pending on July 1, 1891. The opinion of the Circuit Court is reported in 49 Fed. Rep.