Enochs-Havis Lumber Co. v. Newcomb

79 Miss. 462 | Miss. | 1901

Whitfield, C. J.,

delivered the opinion of the court.

Under the rule that the pleadings must be construed most strongly against the par,ty tendering the pleading, this bill must be held to aver, in connection with the exhibit, that the appellant had an equitable assignment of the fund, and the ap-pellee a legal assignment; that the appellee was a purchaser for value, having accepted the assignment in full payment of a valid pre-existing debt. Where there is a debtor of the assignor, and the assignor has made two assignments of the debt, that assignee takes who first notifies the debtor, provided he had no notice of a prior assignment. In Perkins v. Butler Co. (1895), in 2 Am. & Eng. Dec. Eq. (a precisely similar case), at page 212, 2 Am. & Eng. Dec. Eq., and page 310, 62 N. W. Rep., the rule is thus stated: “In determining priorities between different assignments of this character, the general rule is that that assignment which is first brought to the notice of the debtor has priority.” See, also, 2 Am. & Eng. Dec. Eq., 219; 44 Neb., 110; 62 N. W. Rep., 308. And in 2 Am. & Eng. Ene. L. (2d ed.), 1077, it is said: “ It is a well established rule in England that, as between successive assignees of a chose in action, he will have the preference who first gives notice to the debtor, even if he be a subsequent assignee, provided that at the time of taking it he had no notice of the prior assignment. In this country the authorities are greatly at variance on this question. In the federal courts and in many of the state courts the English rule has been adopted.” We follow the English rule, which is that also of the United States supreme court. See Mathews v. Hamblin, 28 Miss., at page 615. It is true, the bill does not aver that appellee knew of the appellant’s assignment, nor that the appellee had not notified the city first. But appellant, stating what he does, fails to state a case without these averments, since, accepting what the bill does state as true, the appellant could not prevail over appellee without averring these two facts. The bill, must state a case clearly entitling the complainant to relief. And to state merely that each party had an assignment of a fund in the hands of a debtor — the appellant’s equitable and the appellee’s legal — and that the appellee was a purchaser for value, leaves out the very basis in such case of complainant’s right, to wit, whether he gave notice of his assignment first to the debtor, and that the appellee knew of his claim. See Mathews v. Hamblin, supra.

Affirmed.