Batesville Institute v. Kauffman

Mr. Justice HUNT delivered the opinion of the court. The demurrants object, first, that the complainants show no title which authorizes a suit by them. The point of this objection is that the transfer of the notes of Hirseh & Adler did not pass the title to the judgment on the mechanics’ lien obtained for the security of the notes. It is further in *154 sisted, under this head, that Hirseh & Adler were necessary parties to the suit. Neither of these objections is sound. Hirseh & Adler had parted with their interest in the notes and in the judgment, and by their assignment had vested the entire title thereto in their assignees. The sole right of recovery is in the latter parties; and, if equities exist between them and their assignors, they are to be settled between them at their convenience and in their own manner. These defendants have no interest in that part of the transaction. * Again, no principle is better settled than this, that the assignment of a debt carries with it an assignment of a judgment or mortgage by which it is secured. If a part only of the debt is assigned, a pro tanto portion of the security follows it. † The third'and fourth points of the demurrer rest upon the objection that Gibbs, the trustee, being dead, and .no successor having been appointed, the trust cannot be enforced. That the court have power to appoint a new trustee, and to compel the performance of the trust by him, is quite certain. It is, however, equally within the power of a court of equity to decree and enforce the execution of the trust through its own officers and agents, without the intervention of a new trustee. ‡ If by the deed to Cox the legal title to the property is now iu him or his representatives, a perfect execution of the trust may be effected through a decree that they shall convey the property to the parties entitled to it; or, the property ma}' be decreed to be sold, and payment made from the proceeds of sale. The remaining point of the demurrer alleges that the lien of the judgment has been lost by lapse of time; that the *155 judgment was recovered more than three years before the ■filing of the bill, and that no good reason appears for not enforcing the same within the three years. The bill alleges, “ that during the existence of the recent rebellion it-was impossible, by reason of the resistanceto the laws of the United States, to have said mechanics’ lien foreclosed, all judicial proceedings in the courts of the United States being interrupted and suspended during a period of several years within the State of Arkansas.” The judgment was recovered in ]\tarch, 1861. The present suit was commenced in March, 1868. If from this period of seven years we except the time when civil war was flagrant in Arkansas, to wit, from April, 1861, until April, 1866, there remain but two years in which the statute of limitations was in force against this judgment. These are the dates at which the war was officially recognized, and at which it was by proclamation officially declared to be at an end in Arkansas! * It has been repeatedly held in this court that the statute of limitations was suspended in the rebellious States during the existence of the war. We perceive no occasion to find fault with the pi'inciples on which the sum of $14,410 was fixed by the master as the amount due the complainants, or -with the rate of interest given b}'the court below. No. authority is cited to show that this is a greater rate of interest than may be ordered by the courts of Arkansas in such cases. The defendants resisted the complainants’claim, and,.as the court held, unjustly. It was competent to the court to decree that the defendants should personally pay the costs of such resistance. Judgment affirmed. Footnotes [*] Allen v. Brown, 44 New York, 228; Danklessen v. Braynard, 3 Daly, 183. [†] Pattison v. Hull, 9 Cowan, 747; Jackson v. Blodget, 5 Id. 202; Green v. Hart, 1 Johnson, 580; Martin ex dem. Weston v. Mowlin, 2 Burrow, 979; Prescott v. Hull, 17 Johnson, 284. [‡] Story, Equity Jurisprudence, §§ 976, 1060, 1061. [*] See Brown v. Hiatts, 15 Wallace, 182; The Protector, 12 Id. 700.