Chesapeake Classified Bldg. Ass'n v. Coleman

• Decision Date: 25 March 1897
• Citation: 26 S.E. 843,94 Va. 433
• Parties: CHESAPEAKE CLASSIFIED BLDG. ASS'N et al. v. COLEMAN et al.
• Court: Virginia Supreme Court

26 S.E. 843

94 Va. 433

CHESAPEAKE CLASSIFIED BLDG. ASS'N et al.

v.COLEMAN et al.

Supreme Court of Appeals of Virginia.

March 25, 1897.

Equitable Assignment.

To constitute an equitable assignment, all that is necessary is that the person to whom a fund is due or is coining due shall draw an order on the person having control of the fund, directing him to pay it to a person named.

Appeal from circuit court, Norfolk county.

Bill by Coleman and Sams against the Chesapeake Classified Building Association and others. From a decree in favor of complainants, defendants appeal. Affirmed.

G. G. Martin and Walke & Old, for appellants.

L. B. Allen, C. W. Sams, and C. W. Coleman, for appellees.

CARDWELL, J. The bill filed in this case by the appellees, Coleman and Sams, trustees, against the appellants, the Chesapeake Classified Building Association, George T. Tilley, and John W. Jones, stated a case which, if sustained by proof, entitled the plaintiffs to the equitable relief asked, and the trustees of the African M. E. Church were not necessary parties to the suit. The demurrer to the bill was therefore properly overruled.

It seems well settled that, in order to constitute a valid assignment in equity, all that is necessary is an order from the person to whom the money is due or coming, on the person in whose hands or under whose control it may be, to pay it to the payee. Brooks v. Hatch, 6 Leigh, 541; Railroad Co. v. Miller, SO Va. 821; Switzer v. Noffsinger, 82 Va. 518; Pom. Eq. Jur. § 373; and Story, Eq. Jur. §§ 1043, 1044, 1047.

It was said by Brokenbrougb, J., in Brooks v. Hatch, supra: "It appears from many authorities that one may draw on the credit of a fund which is not in existence, but which will arise at a future day, and that such draft is an equitable assignment of that fund, and constitutes a lien on it, in the hands of him who may have the possession of it"

The facts and circumstances out of which the case at bar arose are these: The African M. E. Church of Berkley, Va., was indebted to John W. Jones, a general contractor, in the sum of $4,525, for materials furnished and the erection of its church edifice in Berkley, and desired to obtain from the building association a loan with which to pay Jones, but, as the charter and by-laws of the building association provided that it could make loans only to white persons who were members of the association (that is, subscribers to its stock), an arrangement was made between the trustees of the church, George T. Tilley, secretary of the building association, and John W. Jones, whereby Tilley was to subscribe to the necessary amount of the stock of the association to obtain the loan of $4,000, and the church trustees were to secure the loan by a trust deed upon its church property. This arrangement was carried out, the church trustee executing, August 12, 1893, the trust deed,, under authority conferred by a decree of the circuit court of Norfolk county, to secure the building association the payment of the loan of $4,000, to George T. Tilley as trustee; but, before the association would accept this security and agree to make the loan, Jones, as general contractor, was required to release his right to docket a mechanic's lien upon the church property, and to obtain a like release from subcontractors who had furnished materials or had done work in the construction of the church building, whereupon Jones released his right to docket a mechanic's lien on the property, and made settlement with the church trustees, in which he gave them credit for the $4,000, to come to him from the loan to be made by the building association, and took a deed of trust on the church property to George T. Tilley, trustee, subsequent and subordinate to the deed securing the association, to secure the balance of $525 due him (Jones). William J. Ballance and Benson Jones, doing business under the firm name of Ballance & Jones, had a claim, as subcontractors, against John W. Jones, the general contractor, for labor employed and materials furnished in the construction of the church, amounting to $1,339.53, for which amount Ballance gave Benson Jones an order on John W. Jones, which the latter accepted, to be paid out of the money due him for building the church; and subsequently Benson...