Shoecraft v. Bloxham

after stating the case, delivered the opinion of the court.

The conveyance to the company of the lands held by the trus- ^ tees pursuant to the contract' between those parties is essential to the value of the security offered for the bonds executed to the Security Construction and Trust Company, and to enable the complainant to discharge the trust accepted by him. But the contract being between .citizens of the State of Florida, a suit upon it could not be maintained by the railroad company in the Circuit Court of the United States^ and therefore could not be maintained by its assignee, the complainant. Section 629 *735of the Revised Statutes, which was in force when the suit was commenced, declares that “ no Circuit Court shall have cognizance of any suit to recover the contents of any promissory note or other chose in action in favor of an assignee, unless a suit might have, been prosecuted in such court to recover the said contents if no assignment had been made, except in cases of foreign" bills of exchange.” The terms ufeed, “ the contents of any promissory note or other chose m action,” were designed to embrace the rights the instrument conferred which were capable of enforcement by suit. They were not happily chosen to convey this'meaning, but they have received a construction substantially to .that purport in repeated decisions of this court. They were so construed in the recent case of Corbin v. County of Black Hawk, 105 U. S. 659, where the subject is fully considered, and the decisions cited. There a suit brought to enforce the specific performance of a contract was held to be a suit to recover the contents of a chose in action, and therefore not maintainable, under the statute in question, in the Circuit Court of the United States, by an assignee* if it could not have been prosecuted there by the assignors had no assignment been made.

It is contended, however, that the complainant is not the assignee of the contract of May 31, 1871, but a mortgagee in trust of the lands mentioned therein, and can therefore maintain the suit by reason of his citizenship in New York. ¥e cannot assent to this position. It is true the complainant is a mortagee in trust of such interest as the mortgagor had in the lands, but he brings the suit, not to foreclose the mortgage, but as one having a beneficial interest in the contract, and consequently a right to enforce it. The object of the suit is to perfect the title to .the lands mortgaged by enforcing the performance of the contract. The deed of trust sets out in full the contract, and conveys all the right, title and interest which the railroad company had or might thereafter acquire in and to the lands granted by the trustees by their contract of May 31, 1871. This conveyance of all right, title and interest “in and to ” the lands granted, or agreed to be granted, by the contract of sale, carried with it to the complainant an interest in the contract- so far as such lands were concerned, that is, the right *736to perfect the title to the lands by enforcement of the contract. It was in legal effect the assignment of the contract itself. If he cannot enforce that contract and thus secure the title to the company, the deed of trust, so far as the lands covered.by the contract are concerned, is worthless ás a security. If he has no interest in the contract he has no standing in court to ask its enforcement, and, if he is to be regarded as an assignee of the contract under the deed of trust, he is disabled from maintaining the suit in the Circuit Court by §_ 629 of the Revised Statutes. He is subject to the same disability in that respect as his assignor.

Decree affirmed.