owner, which had been released to a former mortgagee. If, now, the purchaser of the equity of redemption subject to dower buys in the outstanding mortgage, it would be manifestly to his advantage that the mortgage should be kept alive, as otherwise the right of dower would be let in. In such a case as this equity will treat the mortgage title as still subsisting, and will prevent the application of the doctrine of merger. Such an interposition of equity for the purpose of keeping the two titles. distinct, will take place, unless there is a declared intention in favor of the merger, or unless such an intention can be presumed to exist from the circumstance that such a merger would be to the owner's advantage."

161. In addition to the regular and ordinary mortgages above spoken of, there are other securities which are held in equity to be valid encumbrances, and which, partaking somewhat of the nature of mortgages, are frequently termed equitable mortgages.

Such are the vendor's lien for purchase-money; mortgages created by the deposit of title deeds; mortgages of equitable interests; and charges of certain kinds. These, however, are in the nature of liens, and do not result in the creation of an independent, equitable title. They will, therefore, be considered in the second general division of this treatise under a separate head.3

1 2 Wash. on Real Prop. 181. See, also, Evans v. Kimball, 1 Allen, 240; Cook v. Brightly, 10 Wright (Pa.), 439.

2 Knowles v. Lawton, 18 Georgia, 476; Waugh v. Riley, 8 Met. 290; Van Nest v. Latson, 19 Barb. 604; Hutchins v. Carleton, 19 N. Hamp. 487; Den v. Brown, 2 Dutch. 196; Loomer v. Wheelwright, 3 Sand. Ch. 157; Washburn on Real Prop.

ut sup.

3 See post, Part II., chapter on Liens. Mortgages of personal property will also be considered in the same connection. The general principles applicable to mort

gages of personalty, so far as they relate to the creation of an equitable title, viz., the equity of redemption, and the existence of an equitable remedy, viz., a foreclosure bill, are the same as those which govern mortgages of real estate. But it has been thought that the brief notice which it is necessary to give to the subject of mortgages of personalty, may be more appropriately introduced in immediate connection with pledges of personalty, which will be considered in the chapter on Liens.

CHAPTER VIII.

ASSIGNMENTS.

162. Common law rule forbidding assign- | 169. Authorities in the United States con

168. When notice of assignment neces- 173. Liability to be sued cannot be transsary; to whom given. ferred; exceptions.

162. THE subjects of property may be divided into two classes -things in possession, and things not in possession; and things not in possession may again be divided into those things of which there is a present right to the immediate possession, and those things of which there is a mere right to the future possession. Thus a man may either own a cargo of oil (for example) which he has in his possession, or which he has an immediate right to recover from the possession of another who unlawfully detains it, or which he has the present right to demand and receive at some future time, or which does not yet exist.

The consequences or incidents of these rights may vary, but in all of these cases there is a general, present, right or title of ownership, which any perfect system of justice ought to recognize, protect, and enforce.

Now, the common law could only deal completely with the first of these rights or titles-that is to say, the only ownership which the common law completely recognized, was the ownership accompanied by possession. In such cases the owner could enjoy the property, or transfer it to another. But where the ownership and the possession were severed, the only right which the common law recognized was the right to recover the

possession; in other words, the right of the real owner was simply a law suit-a chose in action. And this right or chose in action he could not assign. Where there was a present right to the future acquisition of property, the common law was still more at fault, for there was not even a right to recover the goods, but only a right to recover damages for their non-delivery.1

Now, at common law, these rights to things not in possession by whatever name they were called, whether choses in action, possibilities, expectancies, things not in esse, and mere contingencies, were, as a general rule, incapable of being assigned; the reason being twofold: first, that to allow such transfers would be to violate the rules against maintenance and champerty; and, secondly, because there could be no valid sale unless the thing to be sold was in rerum naturâ, and under the immediate control of the vendor. Hence it was considered against sound policy to allow any man to transfer to another a mere right to recover in a suit at law, because, in this way (under the old conditions of society), litigation would necessarily be encouraged, and the rich would be induced to buy up law suits for the purpose of enforcing them against the poor;3 and hence, also, it was considered absurd to make a sale when the thing to be sold was not in the actual ownership of the seller. The common law, therefore, sought to prevent this result so far as maintenance was concerned, by a twofold method: in the first place, by punishing such transfers of rights of action as crimes, known in criminal jurisprudence as maintenance and champerty; and, in the second place, by refusing to recognize the title of the transferree of the debt or other chose in action, when he sought to recover upon it in a common law suit. And it pre

1 These rights to property deliverable in futuro must be. distinguished from remainders and reversions, in which the possession of the particular tenant enured to the benefit of the remainderman or reversioner.

2 Co. Litt. 214, a; Lampet's Case, 10 Coke, 47; Cassedy v. Jackson, 45 Miss. 402; Pelletreau v. Jackson, 11 Wend. 111; Jackson v. Waldron, 13 Id. 178;

Needles v. Needles, 6 Ohio (N. S.), 442; note to Ryall v. Rowles, 2 Lead. Cas. Eq. 770 (4th Eng. ed.).

3 It will be remembered that, in early English history, the protection of the poor against the oppression of the rich was one of the great occasions which called for judicial interference, especially on the part of the chancellor. See ante, page 10.

vented the sale of things of which the vendor had not the immediate right to possession, by falling back upon the rude common sense notion that if you had not a thing to sell you could not sell it; in other words, that to every bargain there must be an actual, subsisting subject.

163. To this general rule there were, at common law, two exceptions, one resulting from the dignity of the person concerned, and the other rendered necessary by the character of the subject matter of the transfer.

The king could be the assignee of a chose in action;1 and an annuity (although in reality nothing more than a chose in action) could be assigned. The reason of the first of these two exceptions was, perhaps, the exalted rank of the individual, which forbade the application of the ordinary rules; for a transfer to the fountain and head of all justice, could not (it was presumed) be supposed to work injustice. To except annuities from the operation of the rule was in fact illogical, as by strict reasoning they should undoubtedly have fallen within it; but it was, perhaps, felt that it would be oppressive if this very common species of property, were not to enjoy the same qualities of alienability which were possessed by other kinds of personalty, and hence the exception sprang up out of a kind of necessity, and is now thoroughly established.2

164. Such was the rule, and such the exceptions, at common law. In equity, while the rule which prohibits the transfer of mere litigious rights has been recognized and upheld, yet the exceptions to the common law doctrine have been so numerous that the principle may now be stated to be firmly established, that, in equity, assignments of choses in action, possibilities, expectancies, things not in esse, and mere contingencies will be protected and enforced. In other words, equity completely recognizes and enforces the present ownership of things not in pos

session.3

Thus a debt, a mere chance of acquiring an estate, an expecta

1 Co. Litt. 232, b. n. Note to Ryall v. Row v. Dawson, 1 Ves. 331; 2 Lead. Cas. Rowles (sup.). Eq. 731.

2 Gerrard v. Boden, Hetl. 80.

See Wright v. Wright, 1 Ves. 412; Garland v. Harrington, 51 N. Hamp. 414;

4 Hobson v. Trevor, 2 P. Wms. 191; Wethered v. Wethered, 2 Sim. 183.

tion of an inheritance, or personal property not yet acquired by the assignor, or not yet in rerum naturâ, may all be assigned in equity, and the assignee can have relief in a court of chancery, if that relief is necessary to protect or enforce his title.

165. The principles upon which assignments in equity are based, especially those which have for their subject property to be acquired in futuro, have been discussed with great care and learning, during the last few years, in the highest English courts.

It had been decided by the courts of law, that an assignment of future acquisitions, as, for example, the future freight, earnings, and profits of a ship, was void at law;2 while in equity the same assignment had been upheld. But the opinion existed and continued to prevail for some time, that the equitable right would be imperfect and incomplete unless there was a subsequent possession or some act equivalent to it, for the purpose of perfecting the title; or, in other words, that the maxim of Bacon in regard to legal assignments, "Licet dispositio de interesse futuro sit inutilis, tamen potest fieri declaratio præcedens quæ fortiatur effectum interveniente novo actu," was applicable also to equitable assignments, and that the latter, equally with the former, would be incapable of enforcement, unless there was novus actus interveniens." Upon this ground Lord Chancellor Campbell decided the case of Holroyd v. Marshall, and held that where there had been an agreement, by which the machinery and implements thereafter to be brought into a mill should be subject to the trusts of a mortgage, and such machinery was afterwards brought in and had been taken in execution by creditors of the assignor before the equitable assignees had done anything to perfect their title, the assignment was invalid as

66

1 Id.

2 Robinson v. McDonnell, 5 Maule & Sel. 227; trover for the ship Warre and 500 tons of oil. This was the general rule at law; see Lunn v. Thornton, 1 C. B. 379; Hamilton v. Rogers, 8 Maryl. 301. The modern tendency of courts of law is towards adopting the doctrines of courts of equity upon these subjects. Brown v. Bateman, L. R. 2 C P. 272. See, however, Blakely v. Patrick, 67 N. Carolina, 40.

3 In re ship Warre (in the matter of Robinson et al., Bankrupts), 8 Price, 269, n. See, also, Field v. The Mayor of New York, 2 Seld. 179; Emery v. Lawrence, 8 Cush. 151; Boylen v. Leonard, 2 Allen, 407.

4 See American note to Row v. Dawson, 3 Lead. Cas. Eq. 347, where the authorities based upon this doctrine, which, in equity at least, is no longer sound, are collected.