HICKOX v. ELLIOTT and others.
.'\. suit in equity may be maintained to enforce a security for a debt, although an action against the debtor directly upon the indebtedneBB is barred by lapse of time; and for such purpose the debt exists, notwithstanding the lapse of time. 2. Bull' TO SET ASIDE A CO:<;VEYANOE. A suit in equity to set aside an assignment or conveyance of property made to hinder or delay creditor.., should ordinarily be brou/tht within the same time after the right accrues as an action at law to recover pOBBession of the sattle property. 3. PAnTIES TO A. SUIT. \Vhere a trustee sues to recover possession of the trust property for the benefit of the cestui que tru8t merely, or simply to enforce his right thereto against third persons, such cestui que trust is not a necessary party thereto; and in a suit to set aside an assignment or conveyance made. to hinder OJ' delay creditors, the grantor or assignor therein, if he has parted with all his right in the property, is not a necessary party either. 4. EQUITABI,E ASSIGNMEN'I'-MAINTENANCE. E. being a member of a railway construction firm In Oregon, and defendant in a suit brought thae by his partners to dissolve said firm and determine thll rights of the parties therein, applied in California to W., a citizen of that state, for a loan of money to aid him in asserting his rights in said suit, which W. agreed to and did advance on E.'s promise to repay the same, with interest-, and his assignment to H., in trust for W., of all his interest in said firm, as a security for the repayment of said money and interest, in which suit there waf: afterwards a decree given in favor of E. and against his partners for a sum of money; and at the time of making such assignment E. also gave W. the option to take a portion of any railway property or bonds that he might obtain in such suit, in lieu of said money and interest. Held,- (1) that the ment of E.'s interest in the firm embraced the decree in his favor for the sum of money which represt:ntcd and stood for such interest, and that the trustee therein became in equity the assignee of said decree as soon as it came into existence, and might maintain a suit to set aside specific ·covin(}us assignments and conveyances by the defendant therein, made with intent to hinder and delay the collection of the same; (2) the optien given W. is Bot involved in thll suit to enforce the decree, and therefore it is immaterial whether it is void for champerty or not; (3) the contract for the loan and repayment of the money was made and to be fulfilled in California, and therefore vallo, whether champertous or not, by the law of Oregon; and the fact that securio/.was taken on property in Oregun for the performance of the contract, does not change its character in this respect.
Suit to Set Aside Conveya,nces to Rinder and Delay Creditors. James K. Kelly and O. E. S. Wood, for plaintiff. Thomas N. Strong, for Joseph Holladay. w. H. Holmes, for S. G. Elliott. O. J. Macdougall, for Ben Holladay. DEADY, J. This suit is brought by George C.lIickox, a .citizen of California, against Simon G. Elliott, Ben Holladay, Joseph Holladay, and William H. Effinger, citizens of Oregon,to8ubjecteetta.in property, the legal title of which is now in Joseph Holladay, to the pay_ ment of a certain decree heretofore given by the BUpl'emecourt of Oregon against Ben Holladay, on the grouu;d.that said !as
assigned, transferred, and conveyed to the former by the latter to hinder and delay his creditors, and that the plaintiff is the assignee of said decree in trust for Martin White, a creditor of said Elliott. The defendants demur to the hill separately, and assign numerous and different causes of demurrer, that on the argument were resolved or condensed into these: (I} The non-joinder of necessary parties, plaintiff and defendant; ('2) the contract on which the plaintiff seeks to recover is void for champerty; and (3) the plaintiff has been guilty of laches. The facts stated in the bill are substantially these: On September 12, 1868, Elliott formed a partnership with Ben Holladay and one C. Temple Emmet, by the name of "Ben Holladay & for the purpose of constructing and operating railwayd in Oregon, and thereafter the said partnership was engaged in the construction of the Oregon Central Railway Company, until November 5, 1869, when Holladay and Emmet commenced a suit against Elliott in the circuit court for Multnomah county to dissolve said partnership and settle the accounts thereof, which suit was afterwards transferred to the circuit court for the county of Marion, in which court, on September 28, 1877, a decree was entered dissolving said partnership, and adjudging Elliott to be 'indebted to the other members of the partnership in the sum of $470, from which decree Elliott took an appeal to the supreme court of the state, wherein, on August 15, 1879, a decree was given dissolving said partnership, and providing that Elliott recover from Holladay the sum of $21,919.46, and from Emmet the sum of $8,596, with his costs and disbursements in that court, no part of. which sums have been paid to Elliott, and there is now due on said decree from Ben Holladay said sum of $21,919.46, with legal interest from August 15, 1879. On FebruallJ' 10, 1874, Elliott, being unable to meet the expense of this litigation with his partners, applied to Martin White, then and now a citizen of California, for a loan of $12,000, "to enable him to defend said suit; and for other purposes," and offered to secure the payment of the same by an assignment "of all his right, title, and interest" in said suit to the 'plaintiff, in trust for said White, whereupon the following contract was duly made and signed by the parties thereto:
"Memorandum of agreement between S. G. Elliott a.nd Martin White, madt:t the tenth day of February, 1874. "A controversy exists between S. G. Elliott and Ben Holladay, and othe1'6, relating to the of said Elliott in and to the Oregon Central Railroad Company, and its stock, bonds, franchises, and other property, which controversy involves substantially all the property and rights of the said company; and, among other things, at least three million two hundred thousand (3,200.000) dol1a.1lS of the bonds of said company. "Fof purpose of asserting and maintaining hIs rights in said controversy,said Elliott has borrowed from Martin White the sum of twelve thousand (12,000) dpllars in gold coin of the United States,. and has agreed to repay the same within one year from the date of the last IDstallment thereof., as.