#### Barnett et al. vs. Mason et al.

Held, that a bill of sale for a steamboat, reciting that A. had sold the boat to E. for $2500 paid, and $4000, for which he had executed notes with security, and that A. was to retain a lien upon the boat until the notes should be discharged, is not admissible in evidence, in an action of detinue brought by A. against C. for the boat, to *254establish either a lien, or a mortgage. The allegation, that A. is to retain a lien, is a mere suggestion, no stipulation, and is entirely nugatory.

Had A. a lien upon the boat, unless by mortgage, he lost it, when ho parted with the possession.

The allegation in the bill of sale, that A. was to retain a lien, cannot be considered a mortgage or evidence that he held one.

Writ of Error to the Circuit Court of Pulaski County.

Detinue, for steam boat, Lady Morgan, brought by Barnett, Read and Lewis against Mason, Smith and Taylor, and determined in the Pulaski circuit court, in June 1844, before Clendenin, judge.

Defendants pleaded non detinet, issue to the plea, cause submitted to the court, sitting as a jury, and finding and judgment for defendants. Pending the tiial plaintiffs took a bill of exceptions, from which it appears:

Plaintiffs offered in evidence the following instrument: “To all people to whom this present bill of sale shall come: Know ye that w e the said Allen Barnett of Louisville K’y, James Read and Felix R. Lewis of Jefferson Indiana, for and in consideration of the sum of six thousand five hundred dollars, have this day granted, bargained, and sold unto Willett Wayman, of Vincennes Indiana, the steam boat Lady Morgan, with all her furniture and tackle as she now floats in the Wabash river on the following terms, to-wit: The said Willett Wayman has this day paid unto the said Barnett, Read and Lewis two thousand five hundred dollars in cash, and given two several notes signed by Willett Wayman, George Lafen, A. H. Ramsey and W. I. Hotchkiss, one due in three, and one in six months after date, for the remaining four thousand dollars; and the said Barnett, Read and Lewis are to retain a lien on said steam boat, Lady Morgan, until the above named notes are discharged: said boat is free from all incumbrances up to this date. Given under our hands and seals this 4th day of May 1839”' — signed by the plaintiffs. To which is appended a certificate of the Inspector •of the Port of Louisville, dated 6th May 1840, that the foregoing is a true copy of the original bill of sale on file in his office. The defendants (waiving any objection to its being a copy, the form of *255authentication and want of proof of execution) moved to exclude the instrument as evidence, which the court did, and defendants excepted.

Ashley & Watkins, for the plaintiffs.

Tkapnall & Cocice, contra.

Upon the trial of the issue in this cause, the plaintiffs were bound to prove property in themselves and a detainer by defendants. 1 Saunders 436.

The bill of sale, so far from proving property in the plaintiffs shows that they had conveyed it away to others and parted with the possession.

No lien could be retained by the vendors on the boat for the residue of the purchase money, in such an instrument as this : and if they had a lien, it certainly gave them no right to the possession^ but only a right to subject it to the satisfaction of the debt which could only be done in chancery. 1 Story’s Eq. 485, b.

Conway B, J.

This was an action of detinue instituted in the Pulaski circuit court for the recovery of the steamer, Lady Morgan. At the trial below the plaintiffs offered as evidence a bill of sale of the boat given by themselves to Willett Wayman, the defendants objected to its introduction and the court excluded it. The plaintiffs excepted and have brought the case into this court upon the exception.

We think the court properly rejected the bill of sale; for instead of its conducing to prove title to the boat in the plaintiffs, it shows-that they had sold it to Wayman in May 1839 for $6500; that he then paid them $2500 cash, and gave them two notes with security for the balance payable in three and six months. It is true that in the bill of sale, plaintiffs say they “are to retain a lien on the boat until the notes are discharged.” But this is a mere suggestion, no stipulation, and is entirely nugatory. It is but another proof of the maxim that there is a difference between one’s saying he would do a thing and doing it.

However, even supposing the plaintiffs had a lien on the boat *256(unless by mortgage) they lost it forever when they parted with its possession, for a lien is only co-existent with the possession of the article and being once surrendered cannot be revived by any subsequently acquired possession. “ A lien is not in strictness either a jus in re, or a jus in rem, but simply a right to possess and retain property until some charge attaching to it is paid and discharged.” 1 Story’s Eq. 483. Long on P. P. 150-1. Sweet vs. Pym, 1 East 4. Kenlock vs. Craig, 3 T. R. 119. If plaintiffs held a mortgage upon the boat they should have produced it. The mere allegation in the bill of sale that they retained a lien cannot be considered a mortgage nor as evidence that plaintiffs had one.

Judgment affirmed.