Wells v. Cody

HEAD, J. At common law dioses in action were not assignable so as to be enforced by the assignee in his own name. An assignment, however, whether by delivery merely or in writing, created a beneficial interest in the asssignee in the debt assigned, which equity would recognize and protect, and which, in time, courts of law [281] came to protect, in some respects, when suit was brought for the use of the assignee. Later the legislature intervened and enacted that, -in such actions, the beneficiary named should be considered the sole party to the record. — Code, §§ 2595, 2596. Section 1762 of the Code provides that, “All bonds, contracts, and writings, for the payment of money, or other thing, or the performance of any act or duty, are assignable by indorsement, so as to authorize an action thereon by each successive indorsee.” This, we observe, requires indorsement. This provision is enlarged by section 2594 of the Code, -which requires actions on promissory notes, bonds or other contracts for the payment of money (except bills of exchange and promisory notes payable at a bank or banking house, or at a designated place, and other commercial instruments) to be prosecuted in the name of the party really interested, whether he has the legal title or not, subject to any defense the payer, obligor. or debtor may have had against the payee, obligee or creditor, previous to notice of assignment or transfer. This, we observe, is confined to actions on the particular contracts specified. Under it, a transferee by delivery merely, as we have uniformly held, may and must sue on such contracts in his own name ; thus recognizing the common law rule that a transfer by delivery passed the beneficial interest — such an interest as a court of equity -would protect and enforce, at the suit of the transferee, when the holder of the legal title and other necessary parties were brought before the court; and as incident to such beneficial ownership of the debt, equity -would enforce securities which pertained to it for the benefit of the transferee. The statutory lien of a landlord is a substantive security of the rent reserved, in the sense that it is not dependent alone, upon the statutory methods of enforcing it. — Westmoreland v. Foster, 60 Ala. 448. It is incident to, and inheres in, the rental contract, and, upon principles above noticed, under the general law, a beneficial transfer of the contract (by delivery, for instance) would,as we will endeavor to show further on,carry with it, in equity, the statutory lien, enforceable by the transferee in a court of equity; and under the influence of section 3004 of the Code of 1886, which authorizes equitable claimants to try the right of property in goods levied [282] upon, such transferee might institute and maintain a claim of that character, to property upon which the lien operates. But, it is said the statute (Code of 1886, § 3059) provides the mode of transfer of such liens, and requires it to be affected by writing. The provision is as follows : “The claim of the landlord for rent and advances, or for either, may be by him assigned; and the assignee shall be invested with all the landlord’s rights and entitled to all his remedies for their enforcement.” The term “assign” or “assignment,” in respect of the transfer of choses in action, is not peculiar to written transfers. It is the usual and appropriate word to denote any transfer of a chose in action, legal or equitable, in writing, by parol or otherwise, and is so used in the books. In 1 Am. & Eng. Eneyc. of Law, under a discussion of the general subject of Assignments, this language is used at p. 834 : “3. What constitutes an assignment. In order to constitute a valid assignment of a debt or other chose in action, in equity, no particular form of words is necessary. Any words are sufficient which show an intention of transferring or appropriating the chose in action to the assignee for valuable consideration. Nor is any written instrument required. Any order, writing, or act which makes an appropriation of a fund amounts to an equitable assignment of the fund. An oral or written declaration may consequently be as effectual as the most formal instrument, and pass the right to an obligation under seal or of record.” Citing a number of authorities. “Parol assignment” of a chose in action is a common expression of the courts. — lb. 835, notes. In Lowery v. Peterson, 75 Ala. 109, involving a parol assignment of a purchase money obligation, and whether the quasi mortgage in favor of the vendor for the security of the obligation passed by the assignment, this court, speaking by Chief Justice Bkickbll, said: “No particular form of assignment is essential in a court of, equity; it may be in writing or by parol. It is sufficient if there is an intentional transfer or making over of the subject matter, conferring a complete and present right in the assignee. — 1 Wait’s Actions and Defenses 363-68 ;” and the court proceeded to hold that the vendor’s security passed to the assignee as an incident to the debt which had been assigned by delivery merely. [283] See also Planters & Merchants Ins. Co. v. Tunstall, 72 Ala. 142; Lee v. Wimberly, 102 Ala. 539., The passing of "a chose in action by one holder to another is, in a sense, an appropriation or setting apart of a fund by one to the use of another, and whether done in a legal or equitable way, “assignment” is the most appropriate word to describe the transmutation. We hold, therefore, that section 3059 of the Code applies to assignments by delivery merely as well as by writing. Prior to the statute changing the rule, it was held that the lien which a. court of equity raises in favor of a vendor of land who has conveyed to the vendee, without payment of the purchase money, was personal to the vendor, and was waived by an assignment of the purchase money obligation, unless assigned by indorsement of the vendor,binding himself as indorser to the indorsee, to payment of the obligation. Hence, it was held that an indorsement without recourse did not pass the lien. Such a lien is not one of fixed, absolute legal right. It is a creature of a court of equity, raised upon the equitable principle that it is not just for one to retain the lands of another without paying for them. It will be denied whenever it appears that the vendor did not rely upon it, or has acted inconsistently with it, or for any cause it appears to be inequitable to allow it. Hence, the abandonment of the demand foi the purchase money to another, without preserving his 5wn liability to loss by contract with assignee, was an abandonment of the lien. In other words, the-lien was of such a contingent, personal nature that it was not assignable, except for the protection and benefit of the assignor. But, as the case of Lowery v. Peterson, supra, shows, this rule did not apply to fixed securities created by the contract of the parties. A security created by contract cannot be more absolute — more fixed in legal right — than the lien the statute creates in favor of the landlord. We are unable to distinguish between them, in the application of the principle under discussion. But however that may be, having determined that assignment in writing is not required, the statute itself declares its effect to be, that the assignee is invested with all the landlord's rights, and'entitled to all his remedies for tlieir enforcement, one of which is to maintain a claim suit, under the statute, for the trial of the right of property. [284] It should have been left to the jury to determine whether the assignment of the note in question antedated the levy. Reversed and remanded.