Schlieman v. Bowlin

Mitchell, J.

It is a familiar rule of equity, of universal application, that the assignment of a demand entitles the assignee to every assignable remedy, lien, or security available by the assignor as a means of indemnity or payment, unless expressly excepted or reserved in the transfer of the demand. 2 Lead. Cas. Eq. (4th Am. Ed.) 1667, and cases cited. The assignment of the demand, which is the principal thing, operates as an assignment of all securities for its recovery or collection, and upon such securities the assignee, as the real party in interest, may maintain an action in his own name. 2 Jones, Mortg. § 1377; Bolen v. Crosby, 49 N. Y. 183; Hurt v. Wilson, 38 Cal. 263; Ullmann v. Kline, 87 Ill. 268; Bennett v. McGrade, 15 Minn. 99, (132.)

The bond given by a defendant in an action in replevin pursuant to Gen. St. 1878, c. 66, § 136, to obtain a return of the property during the pendency of the suit, stands in the place of the property, its purpose and office being, as its conditions show, to secure such judgment as the plaintiff may recover in the action. The bond is but an incident to the debt or claim represented by the judgment. The right to collect the judgment on execution, and the right to recover on the bond, which is merely security for the judgment, cannot exist in the hands of different persons. Therefore, in the present case, the assignment to the plaintiff of the judgment operated as an assignment to him of this bond, and, as the real party in interest, he can maintain an action upon it.

The defendants utterly failed to prove that the assignment of the judgment by Oase to plaintiff was fraudulent and colorable. The judgment was assigned absolutely to plaintiff in payment of a debt. The mere fact that plaintiff was to account to Oase for the surplus (if any) of the proceeds of the judgment over and above the amount of this debt, would leave no leviable interest of Oase in the judgment, even assuming that a judgment is subject to levy at all, — a point which we neither consider nor decide.

Judgment affirmed.