Irvine v. McDougall

GILBERT,. Circuit Judge (after stating the facts as above). We hold that the decree of the court below is erroneous for the reasons': First, the rule-that the right to acquire a lien is personal and not transferable, and is destroyed by assignment, does not apply to an assignment made, as in the-present cáse, for the purpose.of enabling the assignee to maintain a suit. Skyrme v. Occidental Mill Co., 8 Nev. 219; House v. Schulze, 21 Tex.Civ.App. 243, 52 S.W. 654. Second, there was no delivery of the instru [432] ment of assignment to the appellant until after the liens had been filed, and delivery is essential to the completion of an assignment. 5 Corpus Juris, 907; Ritter v. Stevenson, 7 Cal. 388; Leonard v. Adm’r of Kebler, 50 Ohio St. 444, 34 N.E. 659; Govin v. De Miranda, 76 Hun, 414, 27 N.Y.S. 1049; Buehler v. Galt, 35 Ill.App. 225; Tatum v. Ballard, 94 Va. 370, 26 S.E. 871. The decree is reversed, and the cause is remanded for further proceedings, and with instructions to permit the plaintiff to file a supplemental complaint alleging the transfer to him of the lien of King.