20 Or. 410 | Or. | 1891
— Upon the argument of this cause several objections were made to the plaintiff’s right to maintain this suit, which will be separately noticed so far as may be necessary to a proper disposition of this cause. (1) It is first claimed by the appellant that this suit cannot be maintained for the reason its object is purely legal — that is, to recover the possession of the warrants in controversy; but this objection overlooks one element in the plaintiff’s case. At the time of the assignment of the warrants they were not in existence, and such assignments therefore could not create a strictly legal title. At most it could only create an equity; that is, a right or interest over which courts of equity have been accustomed to exercise jurisdiction, and in proper cases to protect and make effectual according to the intention and rights of the parties. The principle is stated in 1 Pom. Eq. Jur. §168, as follows: * * * “The assignee of an expectancy, possibility or contingency acquired at once a present equitable right over the future proceeds of the expectancy, possibility or contingency, which was of such a certain and fixed nature that it was sure to ripen into an ordinary equitable property right over those proceeds as soon as they came into existence by a transformation of the possibility or contingency into an interest in possession. There was an equitable ownership or property in abeyance, so to speak, which finally changed into an absolute property upon the happening of the future event. Equity permitted the creation and transfer of such an ownership.” After stating the effect of modern legislation upon this rule, the learned author continues: “Whatever may be the effect of these statutes in abridging or rather in removing occasion for the jurisdiction of equity, it is plain that the jurisdiction must still exist in the cases where a thing in action or demand, purely equitable in its nature, is assigned, and where the assignment itself is equitable, that is, does not operate as an assignment at law, and where any species of possibility or
We think the decree of the court below is right, and the same is affirmed.