Page images
PDF
EPUB

present assignment to secure or pay an antecedent debt is valid. No other consideration is needed, but a promise to make such an assignment is not even a contract to assign, unless some requested promise or performance is given in exchange. Assuming, however, that sufficient consideration for the promise is given to create a contract, whether such a contract to make an assignment in the future or to pay a debt in the future out of a particular fund should give rise to an equitable lien involves the same question that arises wherever there is a contract to transfer in the future personal property not ordinarily the subject of specific performance. How far such a contract may give rise to equitable rights in the property is a question upon which there is much conflict of authority.28 It has been said that "The doctrine may be stated in its most general form that every express executory agreement in writing, whereby the contracting party sufficiently indicates an intention to make some particular property, real or personal, or fund, therein described or identified, a security for a debt or other obligation, or whereby the party promises to convey or assign or transfer the property as security, creates an equitable lien upon the property so indicated, which is enforceable against the property in the hands not only of the original contractor, but of his heirs, administrators, executors, voluntary assignees and purchasers or encumbrancers with notice." 29 This statement certainly goes beyond the law of a number of American jurisdictions.30 As specifically applied to promises to assign a fund in the future the statement would involve the consequence that an equitable lien upon the fund would be created by such a promise to assign in the future a claim as security for a debt though not by a promise to assign the claim in payment of the debt. In fact there are a few decisions where an executory promise has been held to create an immediate equitable right, but no distinction is taken in these cases between a promise to assign as security

original creditor when he acquired the fund. The decision seems inconsistent with Christmas v. Russell, 14 Wall. 69, 20 L. Ed. 762; and Trist v. Child, 21 Wall. 441, 22 L. Ed. 623.

28 See Williston, Sales, § 138; 19 Harv. L. Rev. 557.

29 3 Pomeroy Eq. Jurisprudence, § 1235, quoted with approval as a basis for decision in Walker v. Brown, 165 U. S. 654, 655, 41 L. Ed. 865, 17 S. Ct. 453.

30 See 19 Harv. L. Rev. 557.

and a promise to assign in discharge of an obligation.31 On the other hand must be set the cases previously cited 32 which hold a promise to assign in the future does not amount to an assignment,33 since these cases generally involve the question whether the promisee had a right to the fund in question without regard to whether that right should properly be described as the right of an assignee or of a lien holder. In these cases, however, there was not always present consideration for the promise, and the procedure may often not have been such as to permit the assertion of an equitable right. Further, if it is true that an equitable lien arises whenever an intention is indicated to make a particular fund "a security for a debt or other obligation,” it would seem that any promise for consideration to pay out of a particular fund would create an equitable lien upon the fund, since a promise to a creditor not merely to pay when the promisor receives a specific fund but to pay out of that fund, manifests clearly an intention to dedicate the fund as security for the payment of the debt. Yet a great weight of authority sustains the view that a promise to pay out of a particular fund gives no equitable right in the fund to the promisee. 34

31 In Thompson v. Erie Railroad, 207 N. Y. 171, 100 N. E. 791, it became important to decide whether the date of an assignment was to be regarded as the date when a written assignment was delivered or a prior date when a contract to assign was made. The court said at page 180, "It may be reasonably assumed that an agreement to assign B's salary was made at the time H. & Co. purchased the note. Such firm thereby became the equitable owner of B's salary as of that day." In this case the promised assignment was for security, but the importance of that was not suggested by the court, and in Dexter v. Gordon, 11 App. Cas. D. C. 60, an agreement to assign a part of a claim in the future was held to give an equitable right to the promisee though the assignment was not to be as security but in payment of an obligation. See also Greey v. Dockendorff, 231 U. S. 513, 34 S. Ct. 166, 58

[blocks in formation]

33 It was held in Benford v. Sanner, 40 Pa. 9, 80 American Dec. 545, that a promise to assign post-office warrants in the future gave no ownership in the warrants to the promisee.

34 This is necessarily involved in those of the decisions cited supra, § 428, where there was present consideration for the promise in question, since those cases though generally stating merely that such a promise did not amount to a partial assignment involved the broad question whether the promisee had any right whatever in the fund. Moreover the New York Court of Appeals has held that "Whatever

$430. Formalities requisite for assignment.

The common law recognized two kinds of property, tangible property of which delivery of possession or livery of seisin 35 might be made, and intangible property which in so far as transferable at all was appropriately transferred by deed. As has been seen, a chose in action was not assignable in a strict sense, and even by deed the best that could be done was to create at law an irrevocable power to collect and a right in equity to enforce the assignment so far as that could be done without injury to legal titles or prior equities. Authority to collect, however, can be given without the formality of a deed or even writ

the law may be elsewhere, it must be regarded as the settled law of this State that an agreement, either by parol or in writing, to pay a debt out of a designated fund does not give an equitable lien upon the fund, or operate as an equitable assignment thereof." Williams v. Ingersoll, 89 N. Y. 508, 518, adding: "It was so decided in Rogers v. Hosack's Executors, 18 Wend. 319. That case was followed, and the same rule laid down in Christmas v. Russell, 14 Wall. 69, 20 L. Ed. 762, and Trist v. Child, 21 id. 441," 22 L. Ed. 623. To the same effect are Randel v. Vanderbilt, 75 N. Y. App. Div. 313, 319, 78 N. Y. S. 124, where the above language was quoted and applied, and Wright v. Aero Corporation, 128 N. Y. S. 726. Dexter v. Gordon, 11 App. Cas. D. C. 60, like the New York decisions, distinguishes between a promise to assign in the future and a promise to pay out of a particular fund, holding that the former gives a lien but the latter does not. See also DeWinter v. Thomas, 34 App. Cas. D. C. 80, 27 L. R. A. (N. S.) 634. The case of Ingersoll v. Coram, 211 U. S. 335, 29 S. Ct. 92, 53 L. Ed. 208, seems a solitary American decision allowing an equitable lien based on a promise to pay out of a particular fund. It may be, however, that this represents the English law. See Dur

ham v. Robertson, [1898] 1 Q. B. 765, 769. In Elmore v. Symonds, 183 Mass. 321, 67 N. E. 314, the court said: "We are of the opinion that where nothing more appears than an agreement, whether oral or in writing, by the owner of real estate, to collect, either personally or by his agents, the rents that may accrue therefrom, and turn them over to his creditor in payment of a debt, even though the money represented by the debt has been used to increase the value of the property, equity will not, in the absence of a stipulation to that effect, or of language from which such an intention clearly appears, create a lien or charge upon the estate, or the rents arising therefrom, to secure the creditor." Citing-Pinch v. Anthony, 8 Allen, 536; Falmouth Bank v. Cape Cod Ship Canal Co., 166 Mass. 550, 567, 44 N. E. 617; Rogers v. Hosack's Ex'rs, 18 Wend. 319, 334; Morton v. Naylor, 1 Hill, 583; Richards v. Shingle, etc., Co., 74 Mich. 57, 41 N. W. 860; Wright v. Ellison, 1 Wall. 16, 17 L. E. 555; Walker v. Brown, 165 U. S. 654, 17 S. Ct. 453, 41 L. Ed. 865. Cf. Kingsbury v. Burrill, 151 Mass. 199, 24 N. E. 36.

35 Livery of seisin was as applicable to chattels in the early law as to real estate. Ames's Lectures on Legal Hist. 172.

ing, and if an assignment is intended, however the intent may be shown, courts will carry out so far as possible the intention. It was stated in an early Massachusetts case that "it is uniformly holden, that an assignment of an instrument under seal must be by deed: in other words, that the instrument of transfer must be of as high a nature, as the instrument transferred." 36 No authority is cited for this statement, but it has been several times repeated in Massachusetts.37 There seems no warrant for it either on principle or authority, and parol assignments of choses in action under seal have been universally upheld in other jurisdictions. 38 It is possible that the confusion as to the necessity of a sealed assignment arose from a failure to distinguish assignments of ordinary covenants from assignments of covenants running with the land. In order that the benefit of a covenant shall run with the land it is essential that title to the land be transferred and a larger estate than a leasehold can only be transferred by deed. Consequently, without a deed, it may be said that the covenant cannot be assigned, so as to make the assignee entitled at common law to sue in his own name upon it. Here, however, we are dealing with an exception to the rule that choses in action are not assignable, and seeking the requisites for bringing a case within the exception. Moreover, even here it is not the assignment of the covenant which must be under seal, but the deed conveying the estate. 39

36 Wood v. Partridge, 11 Mass. 488, 491.

37 Brewer v. Dyer, 7 Cush. 337; Bridgham v. Tileston, 5 Allen, 371; Sanders v. Partridge, 108 Mass. 556, 558. These were all cases of leases and the question involved was whether the assignee of a lease could sue in his own name on the covenants contained in the lease. The case last cited points out that ownership of the leased estate can be transferred without a deed and that ownership of the estate involves a right to sue on the covenants. But the court in distinguishing the earlier decisions repeats the formula that an assignment of a contract under seal must itself be under seal. Cf. Dunn v. Snell, 15 Mass. 481, and Currier v.

Howard, 14 Gray, 511, which state the contrary.

38 Row v. Dawson, 1 Ves. Sr. 331, 332; Moore v. Waddle, 34 Cal. 145; Barrett v. Hinckley, 124 Ill. 32, 14 N. E. 863, 7 Am. St. Rep. 331; Montague v. Aygarn, 164 Ill. App. 596; Robbins v. Bacon, 3 Greenl. 346; Winship v. Portland Base Ball, etc., Assoc., 78 Me. 571, 574, 7 Atl. 706; Prescott v. Hull, 17 Johns. 284, 292; Ford v. Stuart, 19 Johns. 342; Cannaday v. Shepard, 2 Jones Eq. 224, 228; Durst v. Swift, 11 Tex. 273.

39 See Sanders v. Partridge, 108 Mass. 556. So an assignment of a mortgage of real estate, where a seal is necessary for a conveyance of land, should be under seal, Den v. Dimon,

Except as statutes have made a change, an assignment need not even be in writing. An oral assignment for value is sufficient not only to give the assignee a legal power of attorney to collect the claim, but also to create an equitable right as against the assignor, and any one standing in no better position.40 There are occasional statements that to make an oral assignment of a debt valid, as against creditors, or even between parties, there must be at least a symbolical or constructive delivery, although the delivery may be evidenced by a less significant act than is required for the assignment of a chose in action which is capable of manual delivery; 41 but this doctrine cannot be accepted. Intangible choses in action do not "lie in livery," 42 and except as statutes have changed the common law, intent to assign and consideration are the only requisites 5 Halst. 156, though the mortgage debt might be assigned without a seal and the ownership of the debt would equitably entitle the assignee to the security.

40 Heath v. Hall, 4 Taunt. 326; Tibbits v. George, 5 A. & E. 107; Re Macauley, 158 Fed. 322; Lowery v. Peterson, 75 Ala. 109; Wiggins v. McDonald, 18 Cal. 126; Chamberlin v. Gilman, 10 Colo. 94, 14 Pac. 107; Mason v. Chicago Trust Co., 77 Ill. App. 19; Hyatt v. Foster, 195 Ill. App. 428; McAleer v. McNamara, 140 Iowa, 112, 117 N. W. 1122; Jewett Lumber Co. v. Anderson Coal Co., 181 Iowa, 950, 165 N. W. 211; Clark v. Wiss, 34 Kans. 553, 9 Pac. 281; Newby v. Hill, 2 Metc. 530; Lexington Brewing Co. v. Hamon, 155 Ky. 711, 160 S. W. 264; Edwards v. Succession of Daley, 14 La. Ann. 384; Howe v. Howe, 97 Me. 422, 54 Atl. 908; Onion v. Paul, 1 H. & J. 114; Smith v. Penn-American Plate Glass Co., 111 Md. 696, 77 Atl. 264; Kellas v. Slack & Slack Co., 129 Md. 535, 541, 99 Atl. 677; Macomber v. Doane, 2 Allen, 541; Donovan v. Halsey Fire Engine Co., 58 Mich. 38, 24 N. W. 819; Harris v. Chamberlain, 126 Mich. 280, 85 N. W. 728; Hurley v. Bendel, 67 Minn. 41, 69 N. W. 477;

41

Pass v. McRea, 36 Miss. 143; Boyle v. Clark, 63 Mo. App. 473; Oppenheimer v. First Natl. Bank, 20 Mont. 192, 50 Pac. 419; Curtis v. Zutavern, 67 Neb. 183, 93 N. W. 400; Gage v. Dow, 59 N. H. 383; New Jersey Product Co. v. Gluck, 79 N. J. L. 115, 74 Atl. 443; Jemison v. Tindall, 87 N. J. L. 429, 99 Atl. 408; Risley v. Phenix Bank, 83 N. Y. 318, 38 Am. Rep. 421, aff'd 111 U. S. 125, 28 L. Ed. 374, 4 S. Ct. Rep. 322; Selleck v. Manhattan Fire Alarm Co., 117 N. Y. S. 964; Hofferberth v. Duckett, 175 N. Y. App. D. 480, 162 N. Y. S. 167; Ponton v. Griffin, 72 N. C. 362; Roberts v. First Nat. Bank, 8 N. D. 474, 79 N. W. 993; Miller v. Newell, 20 S. Car. 123, 47 Am. Rep. 833; Cleveland v. Martin, 2 Head (Tenn.), 128; Clark v. Gillespie, 70 Tex. 513, 8 S. W. 121; A. A. Fielder Lumber Co. v. Smith (Tex. Civ. App), 151 S. W. 605; Hutchins v. Watts, 35 Vt. 360; Wilt v. Huffman, 46 W. Va. 473, 33 S. E. 279; Arpin v. Burch, 68 Wis. 619, 32 N. W. 681.

41 White v. Kilgore, 77 Me. 571, 1 Atl. 739; Whittle v. Skinner, 23 Vt. 532.

42 See Lehman Dry Goods Co. v. Lemoine, 129 La. 382, 56 So. 324.

« ՆախորդըՇարունակել »