132 F. 588 | N.D. Tex. | 1904
The right of Thornton, the receiver, to have his claims based upon the two drafts paid in full from the fund in the hands of the trustee depends upon whether or not there was an equitable assignment pro tanto of the rent money to come into the hands of Peeples. The authorities are quite uniform to the effect that a bill of exchange or draft drawn against a specified fund and accepted by the drawee constitutes an equitable assignment pro tanto of the fund. Mandeville v. Welch, 18 U. S. 227, 5 L. Ed. 87; Buckner v. Sayre, 18 B. Mon. 745; Wells v. Williams, 39 Barb. 567; Yeates v. Groves, 1 Ves. Jr. 280; Tatlock v. Harris, 3 T. R. 174; Nesmith v. Drum, 8 Watts & S. 9, 42 Am. Dec. 260. The fact that the fund out of which the drafts were to be paid had not come into existence at the time they were given does not affect the validity of the assignment. Bourne v. Cabot, 3 Metc. (Mass.) 305; East Lewisburg L. & M. Co. v. Marsh et al., 91 Pa. 96. In the latter case it is said:
“Equity will support assignments of contingent interests and expectancies— things which have no present actual existence, but rest in mere possibility; not, indeed, as a present positive transfer operative in prsesenti, for that can only be of a thing in esse, but as a present contract to take effect and attach as soon as the thing comes in esse.”
Peeples was Oliver’s agent employed under an annual contract at a stipulated wage to collect rents from tenants of Oliver’s farm lands. It is contended that the fund to be realized against which the drafts were drawn never passed from the control of Oliver; that he could discharge Peeples, and thereby prevent him from collecting or handling this fund. When these drafts were drawn against a specified fund, and were accepted by the drawee, and sold to the bank, it was contemplated by the parties that the rents for 1903 would come into the hands of the drawee. By the authority of the owner he bound himself absolutely and irrevocably to pay out of the moneys collected. The arrangement between the parties imposed the legal duty on him to pay the fund pro tanto directly to the owner and holder of the drafts, without the further intervention of Oliver, who was originally entitled to it. This legal duty
It follows that Thornton, in his capacity as receiver, is entitled to the fund to the extent of the two claims now under discussion, and the order entered by the referee effecting a different result will be set aside, and he will proceed according to the views herein expressed. The costs of this certificate will be taxed against the trustee.