Wife v. Moore

44 Vt. 552 | Vt. | 1872

The opinion of the court was delivered by

Wheeler, J.

That Cookings and wife did assign the note of the defendant Moore, and the mortgage to secure it, to the oratrix, subject to the right of Shepard, is not in any manner questioned. Moore was a brother of Mrs. Cookings, and from this relation and his connection with the subject of the transaction, it would be quite natural that he should know of the assignment. The testimony of McCarthy, a brother of the oratrix, and of Sheldon, the attorney, who did some of the business, is direct to the effect that he did know of it, and must be wilfully false if he did not. This testimony is sufficient to overcome his denial of all knowledge of it, and from the whole testimony and circumstances, it satisfactorily appears that he did know of it and assented to it. Although this did not transfer the note to the oratrix so that she could maintain an action at law in her own behalf upon it, still it conveyed to her an equitable right to and interest in the note, and to and in the mortgage to secure the payment of the note to the full extent of both, after satisfying Shepard’s claim. After an equitable assignment of a chose in action not assignable at law, and notice of the assignment given to the person liable to the action, courts of law may and generally should protect the as-signee against payments to the assignor in violation of the equitable rights of the assignee. It is at least equally and perhaps more the duty of a court of equity than of a court of law to protect an assignee of such choses against such payments. In this suit in equity to enforce payment of the note by foreclosure of the mortgage, it was clearly the duty of the court of chancery to protect the oratrix against all payments made by the defendant Moore upon the note since the assignment and notice of it to him, except the payment to Shepard. Except as to that payment the oratrix was entitled to have the whole of the balance due upon the note at the time of the assignment and notice paid to her until she should be fully paid the amount due her from Mrs. Cookings. She is therefore entitled to a decree of foreclosure for the amount due on the note, deducting payments made before assignment and notice, the payment of Shepard’s claim, and the amount paid to the oratrix.

Decree affirmed, and cause remanded.