In equity a distinct appropriation and delivery over by a debtor of his choses in action for the benefit of one of his creditors is an assignment of them, and will prevail against a subsequent assignment by deed of all his choses in action to another creditor; for, as in neither case is the assignment a transfer of the legal interest in the choses in action, that which is in equity an assignment first in point of time will prevail.
An assignment by deed of all a debtor's choses in action for the benefit of one of his creditors will not entitle that creditor to claim money not the proceeds of such choses in action paid subsequently by the debtor to another creditor.
The plaintiffs, by their bill, insisted that the assignment to them was prior to the assignment of Horne, and required that he account to them for the choses in action thus transferred to him, and the money paid therewith.
GASTON, J., having stated the case as above, proceeded as follows:
The plaintiffs and Horne are both trustees, and both represent creditors of the defendant Atkinson. Neither of the assignments, as it regards the choses in action, transfers the legal interest — and in equity a distinct appropriation and delivery over by the debtor of the choses in action, for the benefit of his creditor, is an assignment thereof. The Court therefore declares that the defendant Horne is entitled to retain so much of these choses in action, or of the proceeds thereof, as were actually delivered to John A. Vines before the execution of the assignment to the plaintiffs, but must account to them for the residue thereof.
As to the money, the plaintiffs have no claim thereto, unless it was the proceeds of the choses in action or other property embraced in their assignment.
There must therefore be an inquiry, to ascertain which of the choses in action assigned to Horne were delivered to (22) Vines before the date of the assignment of the plaintiffs, and whether the money paid over to Horne was in whole or in part of the proceeds of property assigned to the plaintiffs.
PER CURIAM. Decree accordingly.
Cited: Miller v. Tharel, 75 N.C. 152; Bresee v. Crumpton, 121 N.C. 124.