| Mo. | Mar 15, 1855
delivered the opinion of the court.
1. It is contended by the counsel for the respondent, Gardner, in this case, and is, indeed, the chief ground of bis de-
The assignment by George K. Budd to Sanford B. Kellogg, trustee, to secure the payment of a debt to Page & Bacon, duly acknowledged and recorded, being taken and considered as valid, has the effect to pass the property and effects embraced in it to the said Kellogg, as such trustee, against the subsequent assignee.
Assuming this to be so, then the proceeding to recover the' property claimed may be against the party having the property and effects in Ms hands, and need not (perhaps could not) be against the fund. Here, the plaintiff’s petition is proceeding upon the assumption that the effects now sought to be recovered constituted no part of the trust fund in the hands of Gardner, the second trustee.
Courts of equity support assignments not only of choses in., action but of contingent interests and expectations, and also of things which have no present actual potential existence, but rest-on mere possibility only. (See Mitchell, Assignee of Ropes, v. Winslow et al., 2 Story’s Rep. 631.)
A. and B. being engaged in 1839 in the manufacture of cutlery, borrowed of 0. a sum of money, payable in four years,, with interest semi-annually, and on the same day gave him a deed of all the machinery in their manufactory, with all the tools and implements of every kind thereunto belonging and appertaining, together with all the tools and machinery for the use of the said manufactory, which they might at any time purchase for four years from that date, and also all the stock which they might manufacture or purchase during the said four years. On the 26th of August, 1843, A. and B. filed their petition to be declared bankrupts, and subsequently were so declared, and' an assignee was appointed. On July
\ He says : “ Upon the best consideration which I am able to ■give the subject, I think it good and valid. Courts of equity •do not, like courts of law, confine themselves to the giving of .effect to assignments of rights and interests which are absolutely fixed and in esse. On the contrary, they support assignments-not only of choses in action., but of contingent interests and expectancies, and also of those which have no pres
In respect to the latter, it is true that the assignment can have no positive operation to transfer, in presentí, property in things not in esse ; but it operates by way of present contract, to take effect and attach to the things assigned, when and as soon as they come in esse ; and it may be enforced as such a contract in rem in equity. A different view has been taken by other courts, at law at least. (Moody v. Wright, 13 Metc. 27. Mogg v. Baker, 3 Mees. & Wels. 195. Gale v. Burrell, 7 Adol. & Ellis, N. S. 850.)
We now have no distinction between law and equity. Taking, therefore, the deed of trust made in this case by Budd to Kellogg as being valid, (for there is no pretence of fraud in it,) then the sale by the trustee, Kellogg, conveyed the property and effects sold to the purchasers, and they have the right to sue for it, not by pursuing the fund, but any one in whose hands their effects and property may be found.
The judgment below is reversed, and the cause remanded; the other judges concurring.