Norton v. Piscataqua Fire & Marine Insurance, 111 Mass. 532

Norton v. Piscataqua Fire & Marine Insurance

111 Mass. 532 | Mass. | 1873

Ames, J.

We do not understand either party to claim that the judicial proceedings instituted in the State of Maine, for the purpose of winding up the corporation and distributing its effects among its creditors, can have the effect to prevent creditors, resident in this state, from availing themselves of such remedies as *535our laws give them against such property or funds as may ba found within our own limits. Taylor v. Columbian Ins. Co. 14 Allen, 353. Ingraham v. Geyer, 13 Mass. 146. Willitts v. Waite, 25 N. Y. 577. 2 Kent Com. (6th ed.) 406, 407. The only apparent controversy is as to the validity and effect of the alleged assignment by the corporation to the claimant Bowker.

It has long been settled that if a note of hand is transferred by delivery, bona fide and for a valuable consideration, this is a valid assignment in equity which the courts of law will regard and protect, although the assignee cannot maintain an action at law thereon in his own name. And the same principle applies to other choses in action. An equitable interest in a judgment may be assigned for a valuable consideration, by the delivery of the execution thereon to the assignee. Such was the language of this court in a judgment delivered by Mr. Justice Wilde in Crain v. Paine, 4 Cush. 483. See also Jones v. Witter, 13 Mass. 304; Dunn v. Snell, 15 Mass. 481; Grover v. Grover, 24 Pick. 261; Caines v. Howard, 14 Gray, 511. It is also well settled that, after a bona fide assignment for a valuable consideration, the debtor is not chargeable as the trustee of the assignor, although the debtor receive no notice of the assignment till after the trustee process is served. Warren v. Copelin, 4 Met. 594. Wakefield v. Martin, 3 Mass. 558. The discontinuance of the suit, and the existence of the relation of debtor and creditor, furnished a sufficient consideration for this assignment and delivery of the notes, and the authority of Fairbanks to make the transfer is equally clear. He was not only the president of the company and its sole representative in this jurisdiction, but he acted with the express sanction of the trustees, who were its sole representadves in Maine.

It is true that in Dunn v. Snell, ubi supra, some doubt is intimated as to the effect of such a paroi assignment, as against a creditor who should sue out a process against the assignor, in which the debtor of the assignor is summoned as his trustee. But It is difficult to see any ground for such a doubt, and we find no case in which such an assignment has been held to be ineffectual against a trustee process in favor of a creditor of the assignor. *536In Littlefield v. Smith, 17 Maine, 327, it was held that an assignment in that form cannot be defeated by a trustee process. An equitable assignment authorizes the assignee to use the name of the assignor, in all legal proceedings necessary to give it full effect. A release obtained by the debtor, after notice, would be a fraud upon the assignee, and would not defeat an action brought by him in the name of the assignor. Eastman v. Wright, 6 Pick. 316, 322. A payment by the debtor to the assignor after such notice would be of no effect as a defence to such a suit. Jones v. Witter, 13 Mass. 304. It is unnecessary to cite authorities to a point so familiar, or the list might be greatly extended. It is no longer open to question that a delivery of notes like that described in the present case, upon the consideration and with the ■ intent described, would operate as an equitable assignment, binding upon the corporation and upon the promisor. The attaching creditor, Norton, could not stand upon a better footing than the debtor whose funds he attached. If the corporation had no equitable interest in the chose in action intended to be attached, Norton could acquire none by his attachment. Dix v. Cobb, 4 Mass. 508. The doubt intimated in Dunn v. Snell, appears to have arisen upon the argument that the assignment ought to be by an instrument of as high a nature as the instrument assigned. But the court say that that principle is not applicable to equitable assignments. If the assignment is valid, and binding upon the parties ; if, as the court say in Jones v. Witter, it may be as well proved by witnesses as by writing; and if, as they also say in the same case, it is immaterial in what form it is made, it is not easy to understand why it would he any stronger or more effectual, as against a trustee process, if it were in writing. In the case of Brewer v. Dyer, 7 Cush. 337, cited by the counsel for Norton, ' the court were dealing with the question of the transfer of legal rights, and not with equitable assignments.. In Grover v. Grover, 24 Pick. 261, which is also relied upon, the court was dealing with a case of donatio mortis causa ; and in delivering the judgment, Mr. Justice Wilde says, that a good equitable assignment of a chose in action may be made, inter vivas, by delivery of the thing given, without writing; and that such a gift, provided no *537p.1 aim3 of creditors interfere to affect its validity, ought to stand upon the same footing as a sale. There is nothing in this dictum to throw any doubt upon the validity of a bona fide, unwritten transfer of a chose in action for an adequate consideration, even when opposed to the claim of a subsequently attaching creditor.

As the trustee process in favor of Horton was subsequent to the assignment to Bowkér, the result must be, in the first of these two actions, ' Trustee discharged; and in the second, Judgment for the plaintiffs.