The opinion
Ashe, J.
The plaintiff, Brown, by the deed of trust became the owner of the notes in suit, and by its registration on the 7th of June, 1875, all creditors and subsequent purchasers became affected with notice; after that, Hastings as a creditor, was only entitled to. a
pm vata
share in the distribution of the fund in the hands of Brown as trustee, provided he complied with the terms of the deed of trust, by proving his debt before the trustee; and by his assignment of the account against .McMurray <& Davis he could only transfer such interest as he had, nothing more. One who takes by assignment an unnegotiable instrument or a negotiable instrument past due, takes only the interest of the assignor, and is affected by all equities against him at
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the time of the assignment.
Moody
v.
Sitton,
2 Ired. Eq., 382 . The assignee is never put in better condition than the assignor; he takes exactly the position of the assignor. Parsons on Contracts, 227.
The interest then which the defendant acquired by the assignment from Hastings was the right to receive from the plaintiff as trustee, whatever amount it should be found, on the final settlement of the trust, was due, as the
pro rata
share on the debt claimed by defendant by virtue of the assignment, provided he proved his claim before the trustee, as required by the terms of the deed. We therefore concur with His Honor that the defence of setoff or counter-claim set up by the defendant cannot avail him.
There is no error in the judgment rendered by His Honor on the appeal bond. It is correct, and expressly authorized by the act of 1879, ch. 68, § 1, which declares that in all appeals from judgments of justices of the peace, the appellate courts, when judgment shall be rendered against the appellant, may also give judgment against the sureties to the appeal for the amount of the judgment and the costs awarded against the appellant.
But it may be objected that this bond was given before the act of 1879 was passed and therefore it does not apply. We think differently. Prior to that act it is admitted, a summary judgment on such a bond could not be rendered against the sureties thereto. But it is a good common law bond in the usual form of appeal bonds under the old practice, upon which an action in nature of debt would now be commenced by summons and complaint. The act of 1879 gives the additional remedy of a summary judgment upon motion, which it is competent for the legislature to do, for it is now settled that the legislature may pass laws changing th'e remedies for the enforcement of contracts provided they do not impair the obligation of the contracts. Cooley, Const. Lim., 286;
Tabor
v. Ward, 83 N. C., 291 .
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As no erior appears in the record the judgment of the superior court of Henderson is affirmed.
Ho error. Affirmed.