112 Ala. 278 | Ala. | 1895
At common law dioses in action were not assignable so as to be enforced by the assignee in his own name. An assignment, however, whether by delivery merely or in writing, created a beneficial interest in the asssignee in the debt assigned, which equity would recognize and protect, and which, in time, courts of law
The statutory lien of a landlord is a substantive security of the rent reserved, in the sense that it is not dependent alone, upon the statutory methods of enforcing it. — Westmoreland v. Foster, 60 Ala. 448. It is incident to, and inheres in, the rental contract, and, upon principles above noticed, under the general law, a beneficial transfer of the contract (by delivery, for instance) would,as we will endeavor to show further on,carry with it, in equity, the statutory lien, enforceable by the transferee in a court of equity; and under the influence of section 3004 of the Code of 1886, which authorizes equitable claimants to try the right of property in goods levied
In Lowery v. Peterson, 75 Ala. 109, involving a parol assignment of a purchase money obligation, and whether the quasi mortgage in favor of the vendor for the security of the obligation passed by the assignment, this court, speaking by Chief Justice Bkickbll, said: “No particular form of assignment is essential in a court of, equity; it may be in writing or by parol. It is sufficient if there is an intentional transfer or making over of the subject matter, conferring a complete and present right in the assignee. — 1 Wait’s Actions and Defenses 363-68 ;” and the court proceeded to hold that the vendor’s security passed to the assignee as an incident to the debt which had been assigned by delivery merely.
Prior to the statute changing the rule, it was held that the lien which a. court of equity raises in favor of a vendor of land who has conveyed to the vendee, without payment of the purchase money, was personal to the vendor, and was waived by an assignment of the purchase money obligation, unless assigned by indorsement of the vendor,binding himself as indorser to the indorsee, to payment of the obligation. Hence, it was held that an indorsement without recourse did not pass the lien. Such a lien is not one of fixed, absolute legal right. It is a creature of a court of equity, raised upon the equitable principle that it is not just for one to retain the lands of another without paying for them. It will be denied whenever it appears that the vendor did not rely upon it, or has acted inconsistently with it, or for any cause it appears to be inequitable to allow it. Hence, the abandonment of the demand foi the purchase money to another, without preserving his 5wn liability to loss by contract with assignee, was an abandonment of the lien. In other words, the-lien was of such a contingent, personal nature that it was not assignable, except for the protection and benefit of the assignor. But, as the case of Lowery v. Peterson, supra, shows, this rule did not apply to fixed securities created by the contract of the parties. A security created by contract cannot be more absolute — more fixed in legal right — than the lien the statute creates in favor of the landlord. We are unable to distinguish between them, in the application of the principle under discussion.
But however that may be, having determined that assignment in writing is not required, the statute itself declares its effect to be, that the assignee is invested with all the landlord's rights, and'entitled to all his remedies for tlieir enforcement, one of which is to maintain a claim suit, under the statute, for the trial of the right of property.
Reversed and remanded.