Hartman v. Dowdel

The opinion of the court was delivered by Gibson, C. J. A letter of attorney maybe irrevocable, and contain an assignment of the thing, to be recovered, as undoubtedly was the casé here. It is certain also, that any disposition of a wife’s chose in action which, is substantially an assignment for valuable consideration, will bar her right. The assignee, however, must be a purchaser, else he will stand in the place of the husband, and failing to reduce the chose to possession in the lifetime of the husband, the wife’s right will survive. In other words, the husband may sell his wife’s chose in action, but ..cannot give it away freed from the incidents of the marriage. This distinction rests on the indisputable authority of Burnett v. Kinnaston, (2 Vern. 401,) Garforth v. Bradley, (2 Ves. 675,) Bates v. Dandy, (2 Atk. 207,) and many other cases. In Jewson v. Moulson, (2 Atk. 417,) Lord Hakdwicke says it is difficult to reconcile the cases on the subject of the wife’s property in action, but that one thing is clear throughout, if the husband make a voluntary assignment of it,, the assignee will stand in the .place of the husband. And in Packer v. Wyndham, (Prec. in Ch. 412,) the reason is said to be because a chose in action is not assignable at law; and, without a valuable consideration paid, equity will not interpose against the conjugal rights of the wife. An equitable assignment is a declaration of trust, (Co. Litt. 232, note 1,) or rather an agreement that the assignee shall receive the money to his own use, which equity will execute, or not according to circumstances, (Pow. on Cont. 191, 192,) but never in favour of a bare volunteer, except against the assignor or those claiming under him, (1 Fonb. 203,) and not consequently against a wife, who claims paramount. Hence, I apprehend, the difference between [282] an equitable assignment which requires payment of ¿ consideration, and a release which is effectual at law without receipt of the money. That an assignment in discharge of a debt is on valuáble consideration, and that an assignment as a pledge or'collateral security is not, was decided by this court in Petrie v. Clarke, (11 Serg. & Rawle, 377.) Now what 'consideration was there here? The assignment was clearly as a collateral security, the assignor remaining liable till the debt should be discharged by actual payment. No other.terms were imposed than that the assignee should account for the surplus after satisfaction had. The assignment neither was a benefit to the assignor, nor a prejudice to the assignee. ■ It rested on a moral obligation which binds to payment of debts, and which, ■ though a good foundation- for an express contract, would be .insufficient to raise a promise by implication of law. The assignment, • therefore, was on good consideration merely, which is insufficient to sustain it against any one but the representatives of the assignor. • Judgment affirmed.