Hutchinson v. Simon , 57 Miss. 628 ( 1880 )

Chalmers, J.,

delivered the opinion of the court.

By the allegations of the bill which is demurred to, it appears that Mrs. Lowenhauft, now a lunatic represented by G. W. Hutchinson, her guardian, held a note for four thousand dollars made by Louis Hoffman, secured by mortgage. For value received she assigned in writing an interest in this note and mortgage, to the extent of fifteen hundred dollars, to H. H. Miller as agent and attorney for the appellees, Levi Simon & Co. This instrument of assignment was at once exhibited to and read by the debtor, Hoffman, who nevertheless thereafter, in fraud of the appellees’ rights, paid to Mrs. Lowen-hauft, or to her guardian, the full amount of the four thousand dollar note, and procured an entry of satisfaction of the mortgage by which it was protected. The prayer is for a personal decree against Mrs. Lowenhauft and Hoffman for fifteen hundred dollars with interest, and for a- re-in-statement' and foreclosure of the mortgage to that extent. The demurrer is based upon the theory that the assignment of a portion only of a particular debt or fund is invalid and not enforceable against the debtor without an express assent and assumption on his part.

Such is undoubtedly the rule in courts of law, for the sufficient reason that it would subject the debtor to a multiplicity of suits at the instance of each assignee of separate portions of the debt; and, as the original creditor would be no party.to those suits and might thereafter, upon a suit brought by himself for the whole debt, deny the assignments, it would be impossible in a court of law to protect the rights of all the parties. This reason does not apply to courts of equity, and the law ceases with the reason upon which it is founded. It is quite generally, though not universally, held that such assignments are good in equity, and may be there enforced. Such, certainly, has been intimated or assumed to be tbe law in this State in several cases, and such also seems to be tbe view entertained by the Supreme Court of the United States. We are satisfied of its correctness. Moody v. Kyle, 34 Miss. 506 ; Fitch v. Stamps, 6 How. 487; Richardson v. Lightcap, 52 Miss. 508; Christmas v. Russell, 14 Wall. 69; 2 Story Eq. Jur. § 1044.

Decree overruling demurrer affirmed.