such strong evidence of notice, that I am forced to conclude that the parties had notice of the deed. The circumstances operating to the contrary, such as the want of success in finding the deed, and the fact that the Bradys representing the company in the management of the land might as well. have been taken to represent the original purchaser, John T. Brady, are not sufficient in my view to overcome the strong presumption of notice arising from the facts of the case and the verbal notice actually given to the attorney.

It is clear that the company by its trustees, officers and tenants were in actual possession of the tract, and made considerable improvements on it, and possession is implied notice of title; that is, it imposes upon third parties, interested to know it, the duty of inquiry to ascertain the particular title by which the possession is claimed.

I hold, therefore, that the mortgagees had sufficient notice of the trust-deed to put them upon due inquiry of the proper persons as to its contents, notwithstanding it was not recorded, and they are to be presumed as having full knowledge of it.

3. But lastly, the defendants insist that, even if this be so, the complainants in this case are not proper parties to bring suit to redeem the property in question; that if the mortgagees failed to make sufficient parties to their suit for foreclosure, the party lacking in that suit was not these complainants, but was the trustee under the trust-deed, who at the time of bringing suit on the notes, was N. P. Turner, the successor of Hamblin in the trust, and that he was aware of the suit, and could have redeemed the property at that time by paying the debt; at all events, that the complainants are mere stockholders of the New Houston City Company, and not even officers thereof, and have no such interest in the equity of redemption as to entitle them to file a bill for redemption.

It is true that Turner was trustee at the time referred to, and that he could, if supplied with funds, have redeemed the property; but that is not material. He was not made a party to the suit. Had he been made such a party, the com pany and its stockholders (it was a joint stock company, and not a corporation) would or might have been put on their guard, and would or might have provided him with means to

pay the debt. The failure to make him a party, knowing, as I have supposed the mortgagees bound to know, the interest he had in the bonds left that interest unforeclosed. He, or those whom he represented, are still entitled to redeem the land by paying the debt. This would clearly be the case anywhere else except in Texas, and I think that I have shown that the law of Texas is not in substance different in this respect from that of other States.

But the question still remains, Are the complainants proper parties to file a bill for redemption?

The proper person to file such a bill would be the trustee. The original trustee to whom the trust was made was Hamblin. He resigned in 1867 in consequence of some difficulty with the officers of the company, and a new trustee, Turner, was appointed in his place by the directors, in pursuance of the provisions contained in the deed.

Turner accepted the trust, and proceeded in the execution thereof, and as before stated, was trustee when the suit was instituted on the purchase-notes; but as he was president of the Young Men's Mutual Real Estate and Building Associa tion when that association purchased the land at sheriff's sale, the New Honston City Company deemed him an improper person to represent it any longer as its trustee and the directors of the company revoked his powers as such in March, 1870, but appointed no other person in his place.

It is obvious that he would occupy a very anomalous and contradictory position if he was required to represent the New Houston City Company.

Even if his powers had not been revoked, the latter company would hardly have been guilty of an irregularity in fil ing a bill in its own behalf and making him a defendant. They could undoubtedly have done this upon alleging his complicity with the defendants or his refusal to proceed. But as his powers have been revoked, and as there is now no trustee to represent the New Houston City Company, it seems to be almost a necessity that the stockholders of the com. pany, who are really tenants in common in the trust estate, should be permitted to sue in their own behalf. Without this there would be a failure of justice.

It is true, the directors of the company have the power to appoint another trustee; but if they fail to do this, the stockholders should not be precluded from pursuing the right to which they are equitably entitled.

I am, therefore, of opinion that the present suit will lie. The decree must be that the complainants be permitted to redeem the property by paying the entire debt, interest and costs within thirty days after passing the final decree in the case; that in the meantime it be referred to a special master, to take and state as well an account of the rents and profits received by the defendants as of the whole amount, one for principal, interest and costs on the original purchase-notes, or the judgment recovered thereon in the District Court of Harris county; and that he have leave to use the evidence already taken, and to take additional evidence, and to examine the parties, their books of account, etc.; and that the amount to be ultimately paid by the complainants shall be the balance that may remain unpaid after deducting the said rents and profits from the amount of said debt, interest and costs; but if the balance should be on the other side, that the defendants shall pay the same to the complainants; and that the defendants, upon such payment being fully made, do convey the premises in question to the complainants by a good and sufficient deed in that behalf, free and clear from any incum. brances made or suffered by them.

United States District Court, Southern District of New York.

THE PHILADELPHIA AND READING R. R. Co. v. THE STEAMTUG J. H. GAUTIER AND THE SCHOONER HERBERT MANTON.

JAMES R. BENNETT ET AL. v. THE SAME.

The rule that "if two ships, one of which is a sailing ship and the other a steamship, are proceeding in such directions as to involve risk of collision, the steamship shall keep out of the way of the sailing ship," applies to the case of a tug with her tow lashed alongside, the tug and her tow are considered as one vessel, and that a steam vessel.

THESE were libels filed respective 'v by the owners of a canal-boat and her cargo, against the eam-tug J. H. Gautier and the schooner Herbert Manton, to recover damages for a

collision which resulted in the total loss of the boat and her

cargo.

I. Scudder and R. D. Benedict, for libellants.

W. R. Beebe and C. Donohue for the tug.
E. H. Owen and E. L. Owen for the schooner.

BLATCHFORD, J.-The libellants in the first suit, as owners of the canal-boat Gettysburg, and the libellants in the second suit as owners of the cargo of coal laden on board of said canal-boat, bring these suits each of them against the steamug J. H. Gautier and the schooner Herbert Manton, to reover damages for the total loss of the canal boat and her cargo through a collision which occurred between the canalboat and the schooner, on the 28th of November, 1871, between 9 and 10 o'clock, A. M., off the steamboat wharf at Astoria, Long Island, a short distance above the upper end of Blackwell's Island. The canal-boat was at the time in tow of the steam-tug, being lashed to the port side of the steam-tug. The tug and canal-boat had come from Twenty-third street, New York, and were bound for the steamboat dock at Astoria, where the cargo of coal was to be discharged. They had gone up the channel between Blackwell's Island and Manhattan Island. This required the tug, after reaching a point sufficiently far above the upper end of Blackwell's Island, for safety, to swing around to starboard, by porting so as to head across the channel she had come up, and across the upper end of Blackwell's Island, and across the channel between Blackwell's Island and Long Island, to reach the dock at Astoria, and so as to present the port side of the canal-boat to vessels proceeding through Hell Gate around Hallet's Point to New York. The tide was the last of the flood. The schooner went through Hell Gate from the eastward, rounded Hallet's Point, and was proceeding on with a view to enter the channel between Blackwell's Island and Long Island, when she came into collision, stem on, with the port side of the canal-boat, and the canal-boat and her cargo were totally lost.

The libels allege that the collision was caused by the care lessness and negligence of those in charge of the tug and schooner; that the tug was negligent in turning into the dock ahead of the schooner, instead of allowing the schooner to pass clear between the tug and the dock, "as she would other wise have done;" and that the schooner was negligent in not keeping a proper lookout, in not sheering out to avoid the canal-boat, as she coul have done, "and in changing her course back again after she had undertaken to pass outside." The answers of the tug allege that the wind was free for

the schooner; that upon nearing Astoria, the tug and her tow headed in toward the dock to which she was bound, heading nearly or quite across the river, and, as she neared the dock, gradually turning her head toward New York, so as to bring the canal-boat next to the dock and the head of all to the tide; that while the tug and her tow were thus approaching the dock, and when they were a very short dis tance from it, and heading on it, the schooner was coming down through Hell Gate bound to New York, having the wind free and a full sail breeze, with the whole river to the New York shore side free for her navigation; that, as the schooner came on toward the tow, she ported, so as to throw her head off shore and her course outside of the tug and canal-boat, and then suddenly kept away as if to endeavor to force herself between the tow and the dock, from which the tow was then but a few feet distant, the tow being then turning its course toward New York, and at a time when it was impossible for the tug to avoid the schooner; that a warning signal was given, but the schooner kept on and struck the canal boat on the port side a glancing blow, both vessels at the time heading the same way substantially; and that, at the time of the collision, both the tow and the schooner were so near the dock that the schooner came up along the end of the dock, the canal-boat, at the time of the blow, being about the width of the schooner from the dock.

The answers of the schooner allege that the collision was caused solely by the fault of the tug and the canal-boat in turning into the dock, and in crossing the bows of the schooner in order to reach the same, in not stopping and allowing the schooner to pass along, and in not sheering off and passing under the stern of the schooner, either of which movements could have been made without difficulty; that the schooner had a competent lookout properly stationed; that she was lawfully prosecuting her voyage when the tug and the tow approached; that she kept steadily on her course as she was by law entitled to do, and did not change the same; and that the tug and the tow attempted improperly to cross her bows, and so threw themselves under her and thereby received the injuries complained of.

There is no good reason why the court should not apply to this case the rule prescribed by Article 15 of the steering and sailing rules in the Act of April 29th, 1864 (13 U. S Stat. at Large 60), which is, that, "if two ships, one of which is a sailing ship, and the other a steamship, are proceeding in such directions as to involve risk of collision, the steamship shall keep out of the way of the sailing ship," and the further