APPEAL from the Circuit Court for the Eastern District of Arkansas; the case being thus: Womach and Welsh, builders, having a mechanics' lien against an edifice and the grounds on which it stood at Batesville, Arkansas, owned by a corporation of that State, known as the Batesville Institute, got judgment on the lien on the 15th of January, 1861. By the laws of Arkansas the liens of judgments continue three years from the day that they are rendered. Having thus got their judgment, and being indebted by promissory notes to a firm known as Hirsch & Adler, they assigned their lien by deed to one Gibbs, in trust, authorizing him to make the lien effectual in any and all ways, to pay Hirsch & Adler the notes out of its proceeds, and to return any surplus. Hirsch & Adler, in turn, assigned the notes to Kauffman & Co., of Louisiana, and by indorsement on it, in their firm name, all their 'rights and interests' in the deed of trust. In the spring of 1861 the rebellion broke out in Arkansas, and continued till the spring of 1866. In this state of things, and the Batesville Institute having conveyed the legal title of the ground on which the building was, to one Cox, Kauffman & Co., setting forth in the same, 'That during the existence of the recent rebellion it was impossible, by reason of the resistance to 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; and also that before the close of the said rebellion the trustee named in the said deed of trust departed this life, and that there was no one left to execute the same,'–– now, on the 5th of March, 1868, filed their bill in the court below against the Batesville Institute and Cox, to enforce payment of the lien against the edifice and lot, and in default of payment have them sold. The defendants demurred, assigning as reasons: 1st and 2d. That the complainants showed no title which authorized a suit by them; the point of the objection being that the transfer of the notes of Hirsch & Adler did not pass the title to the judgment obtained on the mechanics' lien; and it being insisted that Hirsch & Adler were necessary parties to the suit. 3d and 4th. That Gibbs, the trustee, was dead, and no successor appointed in his place. 5th. That the lien of the judgment had been lost by lapse of time; the judgment having been recovered in March, 1861, and the present suit brought in March, 1868; an interval of seven years. Womach, one of the defendants, made a further defence that the debt of the complainants had been paid by the rents and profits of the bulding received by them for several years past, or which they should have received. The court below overruled the demurrer, and referred the matter of defence, set up, as just mentioned by Womach, to a master to take testimony and to report upon the subject. He took much testimony, and made a report, fixing the amount due to the plaintiffs at $14,410, for which sum the lien was ordered to stand, with interest at ten per cent., and the property decreed to be sold; costs to be paid by the defendants. From this action of the court below the present appeal was taken.
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 Hirsch & Adler did not pass the title to the judgment on the mechanics' lien obtained for the security of the notes. It is further insisted, under this head, that Hirsch & Adler were necessary parties to the suit.