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estate is treated as trustee of the title for the purchaser; and the mortgagee, having the legal title, after payment of the mortgage debt, is a trustee for the mortgagor. The analogy is complete between these and every case, of which the present is one, where the holder of the legal title is under a duty to convey to another.
But, admitting that Chapman was entitled to call for a reconveyance, it is alleged that the Statute of Limitations of Nebraska, which bars the right to recover the title to real estate in ten years from the time it first accrued, defeats the recovery
The Statute of Limitations in force on March 5, 1859, which was the date of the deed, prescribed twenty-one years after the cause of action shall have accrued as the period within which an action for the recovery of the title to lands must be brought. Rev. Stat. Neb. 1866, p. 395, sect. 6.
On Feb. 12, 1869, the legislature of Nebraska passed an act, which took effect July 1, 1869, which amended this section so as to reduce the limitation to ten years. It is not denied that if Chapman's cause of action first accrued to him on March 5, 1859, this amendment could not operate upon it, because to give it that effect would be to take away an existing right of action by mere legislation, as the ten years would then have fully expired. It is, therefore, claimed that his right of action for a reconveyance of the title could only have first accrued when the first instalment of the purchase-money became due, that is, on March 5, 1860, which left eight months after the statute took effect before the ten years' limitation would expire, which, it is claimed, would be a reasonable time within which to require that suits upon existing causes of action should be brought. But this view cannot be supported; for the original contract for payment, at a fixed time, is rendered invalid, for the same reason that avoided the notes and mort gage, the objection being, according to the decision of the Supreme Court of Nebraska, that the county had no power to bind itself to pay, in any other manner than that prescribed by the statute. Hence, it must be held, in this aspect of the c.:se, that the right of action was not postponed, after the date of the deed, by the credit given, and if it accrued at that time,
the limitation was twenty-one years, according to the statute then in force, within which the present suit was in fact brought.
But the more satisfactory answer to this defence is, that none of the statutes of limitation referred to apply to the case at all. We have already seen that by the decision in Brewer v. Otoe County, 1 Neb. 373, it is the declared- law of Nebraska that the claim against the county for the purchase-money, on the supposition that the understanding had been to accept payment according to the terms of the statute, was not liable to the bar of the limitation acts. So that the obligation of the county to pay would not be extinguished by the statutory lapse of time. Now, although the right of Chapman to rescind the contract and demand a reconveyance accrued at the very date of the deed, he was not bound to exercise the right, and his cause of action did not accrue, until he had made manifest his election. He had the right to treat as null that part of the contract which was illegal, and having executed it on his part, to waive performance according to its terms, on the part of the county, and wait a reasonable length of time for the county to make the payment in the mode made lawful by the statute, before exerting his power to rescind the contract. Until that time had elapsed, and until, after that, Chapman had elected to rescind, there was no existing cause of action, and consequently nothing upon which the Statute of Limitations could begin to take effect. When that reasonable time expired we have no means of determining. It would depend upon circumstances not disclosed in the record, such as the state of the county treasury, the extent of its other obligations, the value of the taxable property, and its general financial condition. There is nothing whatever to show that the delay that has taken place in filing the present bill has turn unreasonable. It is impossible, therefore, to say that any statute of limitations has even begun to run against the cause of action, much less that its bar has become complete.
There is nothing, therefore, to prevent the relief prayed for being granted, if it can be done without injustice to the defendant. On this point, it is said, it would be inequitable to decree a rescission of the contract and a restoration of the title
to and possession of the property, because the parties cannot be placed in statu quo; that the circumstances have greatly changed by the incrcase in the value of the property and the expensive improvements that have been put upon it by the county. If the relief asked and expected was an unconditional reconveyance of the title and surrender of possession, this would undoubtedly be true. But such is not the case. Any such injurious and inequitable results as are deprecated may easily be averted by the simple payment of the amount due on account of the purchase-money, which the appellants consent to receive, which is within the statutory powers of the county, and for which proper provision may be made in the decree.
The principles on which we proceed to establish the right of the appellants to the relief prayed for were announced and acted upon by this court in Parkersburg v. Brown, in which it was also held that the equity of the original grantor of the property sought to be reclaimed passed by an assignment of the void securities. 106 U. S. 487. This settles the relative rights of Chapman and his co-complainants, the representatives of Ely, and entitles the latter, in the name of the former, to the relief prayed for in the bill.
And, conversely, the riglıt of the county, represented by its taxpayers, to require a rescission of such a contract, on condition of a surrender of the void securities on the part of the vendor, and a reconveyance of the title in consideration of which they were issued, was recognized by this court in Crampton v. Zabriskie, 101 U. S. 601.
In not granting this relief the Circuit Court erred, and its decree must be reversed, with directions to ascertain the amount due from the county of Douglas on account of the purchase-money of the poor-farm, making any proper allowance as a compensation for the failure of the title to the ten-acre tract, and thereupon to render a decree, unless the amount so found due be paid within a reasonable time, to be fixed by the court, having reference to the necessity of raising the same by taxation, as regulated by the statute, that the county of Douglas be required by its cominissioners to execute and deliver a deed, releasing to Chapman all the title acquired by it by
virtue of the deed from him of March 5, 1859, to be conveyed by Chapman to William A. Ely, his co-complainant, and sole representative of Charles A. Ely, upon such terms as the equities of the case may require. It is
JAFFRAY V. MOGEHEE.
1. The statute of Arkansas prescribing the manner in which property assigned
for the benefit of creditors shall be sold is mandatory. 2. An assignment made in the State is void if it vests in the assignee a dis
cretion in conflict with the provisions of that statute, and authorizes him in effect to sell such property in a manner wbich they do not permit.
APPEAL from the Circuit Court of the United States for the Eastern District of Arkansas.
The statutes of Arkansas contain the following provisions:
“ Sect. 385. In all cases in which any persor. shall make an assignment of any property, whether real, personal, or choses in action, for the payment of debts, before the assignee thereof sball be entitled to take possession, sell, or in any way manage or control any property so assigned, he shall be required to file in the office of the clerk of the court exercising probate jurisdiction, a full and complete inventory and description of such property; and also make and execute a bond to the State of Arkansas in double the estimated value of the property in said assignment, with good and sufficient security, to be approved by the judge of said court, conditioned that such assignee shall execute the trust confided to him, sell the property to the best advantage, and pay the proceeds thereof to the creditors mentioned in said assignment, according to the terms thereof, and faithfully perform the duties according to law."
“Sect. 387. Said assignee shall be required to sell all the property assigned to him for the payment of debts, at public auction, within one hundred and twenty days after the execution of the bond required by this act, and shall give at least thirty days' notice of the time and place of such sale. And any person damaged by the neglect, waste, or improper conduct of such assignee, shall be
entitled to bring his action on the bond in the name of the State for the use and benefit of such person.” Gantt's Digest, pp. 207 and 208.
While these sections were in force, to wit, on Dec. 19, 1878, James C. Moss and John S. Bell, partners under the name of Moss & Bell, doing business as merchants at Pine Bluff, Arkansas, conveyed, by an assignment in writing, all their goods, wares and merchandise, and choses in action to the defendant James M. Hudson, as trustee in trust for the payment of their debts. The deed of assignment preferred certain creditors who afterwards became the complainants in this suit, and required the trustee to pay them in full if the proceeds of the property assigned should be sufficient for that purpose, and if there should be any surplus, to pay it share and sliare alike to other creditors. The powers conferred on the trustee were as follows: "To sell and dispose of all of said property for cash as he should deem advisable and right, and to this end to use his own discretion, subject to the supervision of the creditors, ... and to conduct and transact all of the business as he may deem proper in the exercise of a sound discretion, and as he shall deem most advisable for the benefit of creditors and their trust; and he shall have power to appoint such assistants, agents, and attorneys as in his judgment may be necessary to enable him to fulfil this trust,” &c.
Hudson accepted the trust. On the 21st of December, 1878, he gave bond according to law, and filed in the office of the clerk of the Probate Court an inventory of the property conveyed to him by the assignment. On the same day, McGehee, Snowden, & Violett recovered in the court below a judgment against Moss & Bell for $10,992. An execution which was issued thereon Jan. 12, 1879, came that day into the hands of the marshal of the district, who levied it on, and took into his possession, the assigned goods and chattels, and was about to advertise and sell them to satisfy the writ, when the bill in this case was filed by the preferred creditors. The bill recited the foregoing facts, and prayed an injunction against the marshal and McGehee, Snowden, & Violett, forbidding them to interfere with the property assigned to Hudson, and that they might be decreed to return the same to him, &c.