113 Mass. 129 | Mass. | 1873
It is contended on behalf of the plaintiff, who is a creditor of J. M. Daniels, that inasmuch as no notice was given to Mahlon M. Daniels, before the filing of this bill, of the assignment of the claim against him and the suit brought thereon either by the assignor J. M. Daniels or Cook the assignee, the title of Cook had not been perfected, and, even if he was an assignee for a valuable consideration, that Cook is not entitled to hold the judgment and the avails thereof against the plaintiff.
The rule in England would seem to be that as between successive purchasers of a chose in action he will have the preference, who first gives notice to the debtor, even if he be a subsequent purchaser. Adams Eq. 53. Dearle v. Hall, 3 Russ. 1. Loveridge v. Cooper, 3 Russ. 30. Foster v. Blackstone, 1 Myl. & K. 297. Meux v. Bell, 1 Hare, 73.
Such however has not been the rule adopted in this state, where it is well settled that the assignment of a chose in action is complete upon the mutual assent of the assignor and assignee, and does not gain additional validity as against third persons by notice to the debtor. The principles which would govern in the trustee process must determine the case upon this point. In Dix v. Cobb, 4 Mass. 508, 512, Parsons, C. J., says, “ an attaching creditor cannot stand on a better footing than his debtor (if the assignment be not fraudulent as to creditors), and if he attaches any property of his debtor, it must be attached subject to all lawfully existing liens created by his debtor. And consequently if his debtor have no equitable interest in a chose in action, the creditor cannot acquire any by his attachment. There
It is further argued for the plaintiff that as the payment of the sum of $126 advanced by Cook at the time of receiving the assignment operated to relieve him from his liability as receiptor, to indemnify him for which he had received a mortgage still undischarged of the personal property of J. M. Daniels, he has a double security for the same debt, and should not be allowed to receive the avails of the chose in action assigned to him, but be compelled to resort to the mortgage. But there is nothing inequitable in permitting a creditor to take two securities for the same debt, and in allowing him to resort to either at his election until his debt is paid, certainly where no just rights of others are prejudiced thereby. In the case before us, it appears that a debt of about $80 was assigned to Cook at the time he advanced the sum of $126, and there is nothing to show that the mortgaged property is of more value than the amount over and above the debt that would still be due to Cook on account of the liability he had incurred as receiptor for J. M. Daniels.
The plaintiff also contends that his rights are not to be affected by any claim for costs in the suit of J. M. Daniels against M. M. Daniels, and that so much of the judgment in that action as exceeds the sum of $126, although it is made up from the costs in the case, should be paid to him. Were there no attorney’s lien for them, it would seem reasonably clear that Cook, the assignee, would have a right to retain not only the avails of the chose in action to the amount of the debt it was assigned to secure, bu also the costs included in the judgment, which he had" necessarily been obliged to incur in order to obtain it. At the time of filing this bill, however, the suit had already been prosecuted to final judgment, the execution issued upon it was in the lawful