Holladay large sums of money, the profits of said property, all of which is contrary to equity and good conscience and in contravention of the plaintiff's rights in the premises.

The objection of laches is not made by Elliott's demurrer and the ground on which it is made by the other defendants is not distinctly indicated. But has the plaintiff been guilty of laches or unreasonable delay in enforcing his right or claim? The suit was commenced on April 26, 1884. The money, for which the decree in Holladay v. Elliott is claimed to be a security, was advanced to Elliott by White at intervals of less than a year, and in almost every month of each year, except the year of 1878, from June 13, 1874, to March 25, 1879. It was advanced not on account, but on an agreement to do so, from time to time; as Elliott might demand or require it, and but for the provision in the agreement as to the time of payment, the right of action against Elliott to recover the same or any portion thereof, would not have accrued to White until the whole amount was delivered or advanced or offered and declined. But the agreement for the advance or loan provides that the first twelve thousand dollars shall be repaid within one year from the advance of the last installment thereof, which was made before September, 1874, and therefore the right of action to recover this sum accrued by September, 1875, and was barred in six years thereafter and before the commencement of this suit: Or. Code C. P., sec. 6, sub. 1. The delivery of the remaining ten thousand five hundred and eighty-nine dollars and sixty-five cents was completed on March 25, 1879, and without any contract as to when it should be repaid, and therefore it became payable at once, but even then the right of action to recover the same occurred within six years before the commencement of this suit. Upon this state of the case White could, at the commencement of this suit, have maintained an action against Elliott to recover this second sum, but not the first one.

But it is immaterial whether an action could now be maintained by White against Elliott to recover this money or not. This is not such an action, but a suit brought by a person claiming to be the assignee of a decree to subject the property of the debtor therein to its payment and satisfaction. And it can be maintained, although the right of action against Elliott to recover the money in question is barred by lapse of time. The statute bars the remedy against Elliott in six years, but does not destroy the debt, and it still exists for the purpose of enforcing any lien or pledge given to secure its payment: Quantock v. England, 5 Burr, 2628; Sparks et al v. Pico, 1 McAllister, 497; Myer v. Beal, 5 Or., 130; Goodwin v. Morris, 9 Or., 322; 2 Pars. Con., 379; Rap. & Law., Dic., Limitations.

Assuming, then, for the present, that the plaintiff is the assignee of the decree against Ben Holladay, and that the latter has no property in this jurisdiction subject to execution, except that which he has conveyed or disposed of to Joseph Holladay, with intent to hinder and delay the enforcement of said decree, the plaintiff has a clear right to maintain this suit to set aside said conveyance or dis

position so far as it is an obstacle in the way of such enforcement, unless he has delayed the commencement of the same unreasonably: 3 Pom. Eq. Jur., sec. 1,415; Wait on F. C., sec. 60.

The only questions that Elliott can litigate in this case, are his indebtedness to White and the assignment to the plaintiff, both of which are confessed by his demurrer, subject to the objection that they are void for champerty. The indebtedness of Ben Holladay to the owner of the decree against him is also admitted, and the only other question open to contest in the case, is the validity of the transfers and conveyances to Joseph Holladay, and the extent of Effinger's claim for compensation as an attorney; and the objection of laches can only be made by said Holladay.

As was said by this Court, in Manning v. Hayden, 5 Saw., 379: "In the consideration of purely equitable rights and titles, courts of equity act in analogy to the statute of limitations, but are not bound by it," and in Hall v. Russell, 4 Saw., 515, "When an action upon a legal title to land would be barred by the statute, courts of equity will apply a like limitation to suits founded upon equitable rights to the same property." As has been said, so far as Joseph Holladay is concerned, this is a suit to set aside certain transfers and conveyances to him by Ben Holladay, so far as may be necessary to satisfy the decree against him, on the ground that they were made with intent to hinder and delay the plaintiff in the enforcement of the same, contrary to the statute of frauds: Or. laws, 528, sec. 51: ch. 5, 13 Eliz.; and upon the question of time, is analogous to an action to recover the possession of the property, and ought ordinarily to be considered as barred within the same time as such action. An action to recover the possession of real property is not barred in this state until ten years from the time the right to maintain it accrues: Ses. L., 1878, p. 22; and an action to recover the possession of personal property, or damages for the taking or detention thereof, may be brought within six years from the time the cause of action accrues.

The decree in question was obtained on August 15, 1879, and if the right to maintain this suit accrued then, as I think it did, the plaintiff has not been guilty of laches. Following the analogies of the statute, as applied to actions at law, the suit was commenced in time, both as to the real and personal property affected by the alleged invalid disposition to Joseph Holladay.

The assignment by Elliott, among other things, of all his right, title, interest and claim, both in law and in equity, in the firm of Ben Holladay & Co., was valid and operative, and transferred to the plaintiff all his interest in said firm: 1 Pom. Eq. Jur., sec. 168; Burr on Assignments, sec. 100. It also gave him the option to make himself a party to the litigation then pending between Elliott and his partners in said firm, to ascertain and determine their respective interests therein and liabilities thereto, or to allow it to proceed in the name of the assignor for his benefit: Ex parte railroad company, 95 U. S., 226.

But counsel for Joseph Holladay insists that this "secret assignment was a fraud upon the courts," and ought not, therefore, to be upheld. But this assertion is certainly unfounded in both law and fact. The contention with Holladay and Emmett, whether conducted in the name of Elliott or Hickox, turned, so far as the former was concerned, upon his rights and liabilities, and it could make no difference in the opinion or action of the court whether Elliott or his assignee had the ultimate benefit of its decree. Nor was the proceeding in violation of that provision of section 27 of the code of civil procedure, which declares that "every action shall be prosecuted in the name of the real party in interest." In my judgment the term "prosecuted" is used in this section in the sense of "commenced, and does not prevent a party from assigning his interest in the subject matter of an action after it has been duly commenced, or require that the assignee shall make himself a party thereto or dismiss the same and commence another action in his own name. And so the provision appears to have been construed in Garrique v. Loescher, 3 Bosw., 578, cited in Wait's annotated code, 115. But if a suit is even brought in the name of a party after he has assigned his interest in the subject matter, the objection is waived unless made by answer. Whether an action is brought in the name of the assignor or assignee is a mere matter of form and convenience and does not touch the merits of the controversy. The statute is enabling rather than restrictive, and is intended to authorize an assignee as a chose in action to sue in his own name rather than to compel him to. Besides, Elliott was not a plaintiff in the suit with his partners, and did not commence to prosecute it, although it may be inferred from the fact that a decree was given in his favor, that by a cross bill, or otherwise, he sought and obtained relief therein.

Elliott's interest in the firm of Ben Holladay & Co. having been duly assigned to the plaintiff, pending the suit in the state court, to dissolve the same and ascertain the interests of the several partners therein, thereafter the same was maintained and conducted, so far as Elliott was or is concerned, in his name for the benefit of his assignee according to the terms and purpose of the assignment. And the decree obtained therein in the name of Elliott is considered in equity as a decree in favor of Hickox, his assignee. The thing assigned was Elliott's interest in the partnership, a matter yet unknown and to be ascertained in the pending suit thereabout-and the subsequent decree therein represented and stood for that interest and passed by the assignment to Hickox as soon as it was made or came into existence: Field v. The Mayor, etc., 6 N. Y., 179; Williams v. Ingersoll, 89 N. Y., 508; Wright v. Parks, 10 Iowa, 342; 1 Pom. Eq. Jur., section 168; Story's Eq. Jur., section 1,040. Another ground of the demurrer is that there is a defect of parties. And first it is claimed that Martin White, the cestui que trust, ought to have been joined in the bill with the trustee as plaintiff. It is admitted that the general rule is, that in a suit respecting trust property, brought either by or against the trustee, the cestui que

trust or beneficiary is a necessary party: Story's Eq. Plead., section 207. But to this rule there are exceptions, and this case falls within one of them. When the suit by the trustee is merely to recover or to reduce to possession the trust property, and is no wise intended to control the administration or disposition of it, or to affect the right or relation of the cestui que trust, the latter is not a necessary party; Story's Eq. Plea., section 212; Carey v. Brown, 92 U. S., 172.

In this case the trustee merely seeks to obtain the trust fundthe money due on the decree against Ben Holladay-for the use of White, the cestui que trust, according to the purport and effect of the trust.

It is also insisted that the several persons, to wit: Thomas Brown, W. H. Hampton, George W. Weidler, W. L. Halsey, Ben Holladay, Jr., L. R. Patton and the Oregon Real Estate Company, who held the legal title to much of this property, when it was transferred or conveyed to Joseph Holladay, are necessary parties defendant, to the suit.

These parties were the mere agents and employees of Ben Holladay, and held this property in trust for him as a matter of convenience, and absolutely subject to his direction. They were naked trustees without interest or discretion.

And first, this is not a purely creditor's bill, in which the plaintiff seeks to discover and subject to the payment of his debt equitable assets in the hands of the debtor or property which he has transferred to others under such circumstances as to leave an equitable interest in himself. But it is a suit to set aside specific, covinous transfers and conveyances made by the debtor which obstruct and prevent the plaintiff from enforcing his decree against the former, by execution levied on the property included in such transfers or conveyances. So far as Ben Holladay is concerned, his indebtedness to the assignor of the plaintiff, is established by the decree and is no longer open to controversy. And the transfers and conveyances in question are good against him, and can only be avoided at the suit of a creditor. He has then no interest in this controversy. His indebtedness is fixed and the property sought to be affected has passed beyond his control, and he cannot be prejudiced in any legal sense by a decree which may subject it to the payment of his debts: In re Estes, 6 Saw., 459; Collinson v. Jackson, 8 Saw., 365; Bump on F. C., 548; Wait on F. C., sections 129-171; Fox v. Moyer, 54 N. Y., 128.

It follows that while Ben Holladay is a proper party to this suit, he is not a necessary one, and might have been omitted from the bill. And his agents and trustees who conveyed this property to Joseph Holladay, under his direction, have less interest in the suit, or the subject matter of it, if possible, than he has. As against them also the conveyances are good. They passed the legal title to Joseph Holladay. These parties have no longer any interest in the property or power over it. No relief is sought against them, and

they cannot be prejudiced by any decree that may be given in the suit. The case of Gaylords v. Kelshaw, 1 Wall., 81, cited by counsel for Joseph Holladay, decides nothing to the contrary of this. Kelshaw, being the debtor and grantor in the alleged fraudulent conveyance, was a proper, although not a necessary, party, in that case. But being made a party defendant, without any averment as to his citizenship, it did not appear that the court had jurisdiction. Accordingly, the case was remanded with leave to the plaintiffs to amend their bill generally, which they might do by alleging the citizenship of Kelshaw, if it was sufficient to give the court jurisdiction, or by omitting his name from the bill.

The general rule is, that no person need be made a party to a suit who has no interest in it, and against whom nothing is demanded: Story's Eq. Plead., sections 153, 228-31; Kerr v. Watts, 6 Whea., 550; Trecothick v. Austin, 4 Mass., 44; Bump on F. C., 548.

This proposition is tacitly admitted by the counsel for Joseph Holladay, but he contends that the transfers and conveyances in question were in fact only mortgages, and, therefore, the legal title to the property is still in these trustees and they are necessary parties to any suit in which that title is sought to be affected or the legal estate disposed of.

But whatever the real fact may be as to the relations between Ben and Joseph Holladay concerning this property, there is nothing in the facts stated in the bill to warrant any such conclusion. On the contrary, the case made by the bill is one where a debtor transfers. and conveys to one creditor his property with intent to thereby "hinder and delay" his other creditors, including the plaintiff. True, it is not alleged that these transfers and conveyances were made with intent to defraud. Neither is it necessary to the plaintiff's right to the relief demanded that they should be. Under the statute, it is sufficient if the conveyance is made with intent, either "to hinder, delay or defraud" creditors. These words are not synonymous and a conveyance made with either intent may be avoided by any "person so hindered, delayed or defrauded:" Wait on F. C., sec. 11; Bump on F. C., 19.

That these transfers and conveyances were made with intent to hinder and delay the debtor's creditors is directly alleged in the bill, and is sufficiently shown by the facts, that the property included in them is all that the debtor had at least in this statethat its value was largely in excess of the debt due Joseph Holladay, who is his brother, and that the debtor has since regularly received to his own use a large portion of the rents and profits thereof.

And, lastly, is the contract upon which the money was advanced by White to Elliott, void for champerty?

And, first, in the mouth of Elliott, at least, this may be considered anything but a meritorious defense. In 1874, when he was needy and sore pressed by rich and powerful parties, who sought to exclude him from his share in an enterprise in which he appears to

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