Argument for Appellant. lished; and when so established he will have the right to complete relief in the same action by decree of specific performance of the contract. Mechanics Bank of Alexandria v. Seton, 1 Pet. 299; Fortiscue v. Barnett, 3 Myl. & K. 36; Ex parte Pye, 18 Ves. 140. In enforcing specific performance the Supreme Court of the United States regards the technical distinction, as to whether the contract relates to realty or personalty, much less than it does the other question; whether the plaintiff is entitled to other or better relief than the law can give him. Mechanics Bank of Alexandria v. Seton, supra. Our remedy at law to be subrogated to the rights of the railroad company on these contracts with the towns, is very far from being clear and perfect. The practice in Illinois, which in this case, being the ancient practice, is authority for our procedure, requires us to go into equity for subrogation. Courts of law there know nothing of this relief and cannot administer it. Meyer v. Mintonye, 106 Ill. 414. This is the general rule wherever the jurisdictions are separate. Springer's Admr. v. Springer, 43 Penn. St. 518; Mosier's Appeal, 56 Penn. St. 76; Eaton v. Hasty, 6 Nebraska, 419. Even in those States where the law, following equity, has come to administer this relief more or less completely it appears that equity still retains its jurisdiction. Sheldon on Subrogation, ch. 1, 88 1, 4. Indeed it is the rule that a United States court of equity will not be ousted of its ancient jurisdiction because the state courts of law come to apply equity principles more or less thoroughly. Payne v. Ilook, 7 Wall. 425; Borer v. Chapman, 119 U. S. 587. The cases at bar then belong to that class where the plaintiff has an independent equity, the right to subrogation. If the action had been by the railroad company against the towns on their contracts, it must have been at law, of course. But we have no legal title to those contracts. They never have been assigned to us. Had they been perhaps we might have brought an action at law on them against the towns in the name of the railroad company, or its receiver; though this is doubtful. But clearly now our remedy to get the benefit of those contracts is wholly and purely equitable. Argument for Appellant. Had these choses in action been actually assigned to us by the railroad company, our right to them would have rested in such contract of assignment. Now it rests on the fact that we bought certain bonds, supposed at the time to represent these contracts, but which afterwards turned out void. The equity of subrogation arises where plaintiff's right rests not upon contract, but upon a state of facts which give it. In such cases the proper remedy is not at law but in equity. Mosier's Appeal, 56 Penn. St. 76; Eaton v. Hasty, 6 Nebraska, 419. We stand like a purchaser of land at execution sale which has turned out invalid. Such facts subrogate the purchase to the lien of the original judgment. MeHany v. Schenk, 88 Illinois, 357. III. But we are told that we have no right to this subrogation because in buying the bonds we made a mistake not of fact but of law, and are therefore chargeable with notice of the invalidity of the bonds. But how does this affect our right to subrogation? "Circumstances may exist which will give the holder of bonds an equitable right to recover from the municipality the money which they represent, though he cannot enforce their payment or put them on the market as commercial paper." Anthony v. County of Jasper, 101 U. S. 693, 697. This was said in a case where the bonds were held void because issued by a fraud which amounted to forgery, and the purchaser was held chargeable with notice of the fraud. If we were suing the railroad company on an implied warranty of the validity of the bonds, this question of implied notice of their invalidity might cut some figure. But in equity, notwithstanding the notice of caveat emptor under which he purchased, a purchaser is subrogated to the lien of the original judgment. So implied notice of defects in the thing purchased has nothing to do with the purchaser's right to be subrogated to all that fairly and equitably should go with his purchase to recompense him, if it turns out a nullity. And whether the mistake of the purchaser is one of law or fact, he has the right to be subrogated to everything that equitably belongs with Argument for Appellant. his purchase. Gause v. Clarksville, 5 Dillon, 165, 180; Wood v. Louisiana, 5 Dillon, 122, 124; Shirk v. Pulaski County, 4 Dillon, 209, 214; School District v. Lombard, 2 Dillon, 493. In Louisiana v. Wood, supra, it is settled that the purchaser of void bonds, though chargeable with notice of their invalidity, is subrogated to the seller's rights on the consideration for which they were issued against the municipality issuing them. But further: Whether the bonds were valid or not was, at the time of the purchase, a mixed question of law and fact.. The question as to whether these officers had in fact, if necessary under the law, been expressly authorized by the voters to issue the bonds, was a question of fact. The people having voted the aid, the supervisors being the proper officers to decide whether the requirements authorizing the issue of bonds had been complied with (see People v. Cline, 63 Illinois, 394), and they issuing bonds reciting as these do that they were issued in accordance with the acts of the legislature and the vote of the electors of the towns, we had the right to assume that all facts necessary to give the supervisors authority to issue the bonds had been complied with. Pompton v. Cooper Union, 101 U. S. 196. The towns cannot complain that we are subrogated to the rights of the railroad company under these contracts; for we must bear in mind that in this case the liability of the town was fixed by the election, as held in Chinquy v. People, and Fairfield v. Gallatin Co., supra. It is liable to somebody, either the railroad company or to us as the equitable assignee or successor of that company. It makes no difference to the town to which it is liable. We bring it and the company into a court of equity asking to have the liability declared and established in us by subrogation. If the railroad company makes no objection to this, certainly the town cannot demur. IV. There is no multifariousness in the relief asked. It can all be granted in one decree. A decree subrogating us to the railroad company's rights under its contracts with the towns and ordering the towns to perform that contract for our benefit, is certainly a very simple matter. V. But defendant's counsel tell us that we are now barred Argument for Appellant. from our equity because we did not set it up in the former case, the one finally disposed of by the decision of the Illinois Supreme Court in Middleport v. Etna Life Ins. Co., 82 Illinois, 562. In answer to this it is sufficient to say: 1st: We did not know at that time that we had any such equity; we could not know about that until the final decision of that case, supposing as we did all through the case that the bonds were valid. 2d. We could not have set up this equity in that suit even had we mistrusted that we possessed it, for that was a bill by the town to invalidate the bonds because irregularly issued. VI. But defendant's counsel tell us that though our equity were valid and not barred by failure to set it up in the former case, Middleport v. Etna Ins. Co., yet it is now stale and barred by the statute of limitations. It is not stale unless it is barred by the statute. Mere delay alone short of the period fixed as a bar by the statute of limitations will not preclude the assertion of an equitable right. It is only when by delay and neglect to assert a right that the adverse party is lulled into doing that which he would not have done, or into omitting to do that which he would have done in reference to the matter, had the right been promptly asserted, that the defence of laches can be considered. Gibbons v. Hoag, 95 Illinois, 45, 69; Thompson v. Scott, 1 Bradwell, App. Ill. 641; Hubbard v. United States Mortgage Co., 14 Bradwell, App. Ill. 40; United States v. Alexandria, 19 Fed. Rep. 609; S. C. 4 Hughes, 545. Here there can be no pretence that our delay to sue has wrought an injury to defendants. As to the question of limitation raised, it must be decided upon the law in force at the time when the contract was made; even though a new limitation law were enacted before suit could be brought. Means v. Harrison, 114 Illinois, 248; McMillan v. McCormick, 117 Illinois, 79. [Counsel then examined the statutes at length, contending that they did not bar the action, and that there had been no laches.] Mr. Francis Fellowes also filed an argument for appellant. Opinion of the Court. Mr. Robert Doyle for appellee. MR. JUSTICE MILLER, after stating the case as above reported, delivered the opinion of the court. In the argument of the demurrer before the Circuit Court several objections to the bill were taken. The defendant in error, however, relies here upon three principal grounds of defence: First, it denies the right of subrogation, upon which rests the whole case of the complainant; second, it relies upon the statute of limitations of five years; and third, it asserts that the former decree in the state court is a bar to the action here. The Circuit Court held that the statute of limitations was a bar to the present suit, and dismissed the bill on that ground. But we regard the primary question, whether the complainant is entitled to be substituted to the rights of the railroad company after buying the bonds of the township, a much more important question, and are unanimously of opinion that the transaction does not authorize such subrogation. The bonds in question in this suit were delivered by the agents of the town of Middleport to the railroad company, and by that company sold in open market as negotiable instruments to the complainant in this action. There was no indorsement, nor is there any allegation in the bill that there was any express agreement that the sale of these bonds carried with them any obligation which the company might have had to enforce the appropriation voted by the town. Notwithstanding the averment in the bill that the intent of complainant in purchasing said bonds, and paying its money therefor, was to acquire such rights of subrogation, it cannot be received as any sufficient allegation that there was a valid contract to that effect. On the contrary, the bill fairly presents the idea that by reason of the facts of the sale the complainant was in equity subrogated to said rights, and entitled to enforce the same against the town of Middleport. The argument of the learned counsel in the case is based entirely upon the right of the complainant to be subrogated |