Except as statutes have made a change, an assignment need not even be in writing. An oral assignment for value is sufficient not only to give the assignee a legal power of attorney to collect the claim, but also to create an equitable right as against the assignor, and any one standing in no better position.40 There are occasional statements that to make an oral assignment of a debt valid, as against creditors, or even between parties, there must be at least a symbolical or constructive delivery, although the delivery may be evidenced by a less significant act than is required for the assignment of a chose in action which is capable of manual delivery;41 but this doctrine cannot be accepted. Intangible choses in action do not "lie in livery," 42 and except as statutes have changed the common law, intent to assign and consideration are the only requisites to transfer such rights as the nature of the property permits to be transferred; and even tangible choses in action may be effectually assigned as between the parties, without delivery. Therefore where insurance policies were assigned by parol, as security to a creditor, the assignment was not invalidated as a preference, by the fact that the policies were not delivered until later and within four months before the assignor's bankruptcy.43 Statutes, however, have made writing of importance in many jurisdictions.
5 Halst. 166, though the mortgage debt might be assigned without a seal and the ownership of the debt would equitably entitle the assignee to the security.
40 Heath v. Hall, 4 Taunt. 32; Tibbita v. George, 5 A. & E. 107; As Macauley, 158 Fed. 322; Lowcry v. Peterson, 75 Ala.. 109; Wiggins v. Mo-Donald, 18 Cal. 126; Chamberlin v. Gilman, 10 Colo. 94, 14 Pac 107; Mason v. Chicago Trust Co., 77 111. App. 19; Hyatt v. Foster, 195 111. App. 428; McAleer v. McNamara, 140 Iowa, 112, 117 N. W. 1122; Jewett Lumber Co. v. Anderson Coal Co., 181 Iowa, 950, 165 N. W. 211; Clark v. Wiss, 34 Kans. 553, 9 Pac. 281; Newby v. Hill, 2 Mete 530; Lexington Brewing Co. v. Hamon, 155 Ky. 711, 160 S. W. 264; Edwards v. Succession of Daley, 14 La. Ann. 384; Howe v. Howe, 97 Me. 422, 54 Atl. 908; Onion v. Paul, 1 H.
& J. 114; Smith p. Penn-American Plate Glass Co., 111 Md. 696, 77 Atl. 264; Kellas v. Slack & Slack Co., 129 Md. 535,541,99 Atl. 677; Macomber v. Doane, 2 Allen, 541; Donovan v. Halsey Fire Engine Co., 68 Mich. 38, 24 N. W. 819; Harris v. Chamberlain, 126 Mich. 280, 85 N. W. 728; Hurley v. Bendel, 67 Minn. 41, 69 N. W. 477;
Pass v. McRea, 36 Miss. 143; Boyle v. Clark, 63 Mo. App. 473; Oppenheimer v. First Natl. Bank, 20 Mont, 192, 60 Pac. 419; Curtis v. Zutavem, 67 Neb. 183, 93 N. W. 400; Gage v. Dow, 59 N. H. 383; New Jersey Product Co. v. Gluck, 79 N. J. L. 115, 74 Atl. 443; Jemison v. Tindall, 87 N. J. L. 429, 99 Atl. 408; Rialey v. Phenix Bank, 83 N. Y. 318, 38 Am. Rep. 421, affd 111 U. S. 125, 28 L. Ed. 374, 4 S. Ct. Rep. 322; Selleck v. Manhattan Fire Alarm Co., 117 N. Y. S. 964; Hofferberth v. Duckett, 175 N. Y. App. D. 480, 162 N. Y. S. 167; Ponton v. Griffin, 72 N. C. 362; Roberts v. First Nat. Bank, 8 N. D. 474, 79 N. W. 993; Miller v. Newell, 20 S. Car. 123, 47 Am. Rep. 833; Cleveland v. Martin, 2 Head (Term.), 128; Clark v. Gillespie, 70 Tex. 513, 8 S. W, 121; A. A. Fielder Lumber Co. v. Smith (Tex. Civ. App), 151 S. W. 605; Hutchins v. Watts, 36 Vt. 360; Wilt v. Huffman, 46 W. Va. 473, 33 S. E. 279; Arpin v. Burch, 68 Wis. 619,32 N. W. 681.
41White v. Kilgore, 77 Me. 571, 1 Atl. 739; Whittle v. Skinner, 23 Vt. 532.
42 See Lehman Dry Goods Co. v. Lemoine, 129 La. 382, 56 So. 324.
In some States there have been from an early day statutes permitting the assignee of a bond or non-negotiable note or sometimes of any chose in action to sue in his own name if the assignment is in writing, and such statutes have been copied more recently in other jurisdictions.44 The requirement of a written assignment in such jurisdictions, however, affects only the right of the assignee to sue in his own name. In such States, as well as elsewhere, an oral assignment, for valuable consideration, transfers an equitable right to the assignee which may be enforced in the assignor's name.45 And in a jurisdiction where by statute the real party in interest is always allowed to sue in his own name, the legal effect of a previous statutory requirement of a written transfer in order to give the assignee a right enforceable at law in his own name, seems done away with.46 Where by statute an assignment in writing is of importance, a blank indorsement of the tangible evidence of a claim has been held sufficient.47 In life insurance policies, it is frequently provided that certain formalities must be observed in making an assignment, but such provisions are not generally held material to the rights of the assignee against his assignor, or to the rights of rival assignees as against one another.48 In all jurisdictions of the United States as well as in England, contracts for the sale of an interest in land must be in writing.49 Accordingly, an assignment of a contract right to buy land, since the contract gave the assignor an equitable interest in the land, must be in writing in order to be enforceable between assignor and assignee,50 and under recording statutes, in order to be binding upon third persons, must be recorded.51 The seventeenth section of the English Statute of Frauds, and corresponding statutes in the various States in America modify the right to assign orally choses in action even though they do not relate to land. How far these statutes affect the validity of a contract between assignor and assignee is elsewhere considered,52 but third persons cannot set up the defence of the statute,53 and there can be no invalidity in an oral power of attorney to enforce a contract for the sale of land or of choses
in action which are within the Statute of Frauds; and such a power is implied in the attempted assignment. The obligor under such a contract, it would seem, therefore, cannot interpose the defence of the Statute of Frauds to a suit brought by the assignee to enforce the contract. If the assignor does not take the objection, no one else can.54 It might be necessary, however, to bring such a suit in the name of the assignor, in spite of modern statutes, permitting an assignee to sue in his own name.
43 McDonald v. Daakam, 116 Fed. 276, 63 C. C. A. 654 See also Richardson v. White, 167 Mass. 68, 44 N. B. 1072.
44Enloe v. Reike, 56 Ala. 500; Hardie v. Mills, 20 Ark. 153; Herring v First Nat. Bank, 13 Ga. App. 492, 79 S. E. 359; Chadsey Admr. v. Lewis, 6 111. 153; Phipps v. Bacon, 183 Mass. 5, 66 N. E. 414; Andrews v. Carr, 26 Miss. 577; Able v. Shields, 7 Mo. 120; Miller v. Paulsell, 8 Mo. 355; Patterson v. Rabb, 38 S. C. 138, 17 S. E. 463,10 L. R. A. 831.
45Gardner v. Mobile, etc., R. Co, 102 Ala. 635, 16 So. 271, 48 Am. St Rep. 84; Wilson v. Bowden, 26 Ark. 151; Chadaey Admr. v Lewis, 6 111. 153; Rittenhouse v. Myers, 10 Mo. 306.
46 Planters', etc., Ins. Co. v. Tun-stall, 72 Ala. 142; Lee v. Wimberly, 102 Ala. 539, 15 So. 444; Weinwiok v. Bender, 33 Mo. 80.
47Small v. Smith, 120 Minn. 118, 139 N. W. 133,
48 In Herman v. Connecticut Mut. Life Ina. Co., 218 Mass. 181,105 N. E. 450, 451, the court said: "As between the plaintiff and Somer it is immaterial that the assignment was not written upon or attached to the policy, that no reference to the assignment was written or noted on the policy, or that no notice of it was given to the insurance company, either in the manner required by the fifth clause of the policy or otherwise. Merrill v. New England Mut. Life Ins. Co., 103 Mass. 245, 252, 4 Am. Rep. 548; Hewins v. Baker, 161 Mass. 320, 37 N. E. 441; Atlantic Mutual Life Ins. Co. v. Gannon, 179 Mass. 291, 60 N. E. 933. See also Northwestern Mutual life Ins. Co. v. Wright, 153 Wis. 252,140 N. W. 1078; Wood v. Phoenix Life Ins. Co., 22 La. Ann. 617; Manhattan Life Ins. Co. v. Cohen (Tex. Civ. App.), 139 S. W. 51; Howe v. Hagan, 110 N. Y. App. Div. 392, 97 N. Y. S. 86; Cowdrey v. Vandenburgh, 101 U. S. 572, 25 L. Ed. 923; New York Life Ins. Co. v Dunlevy, 204 Fed. 670; Fortescue v. Barnctt, 3 M.
& E. 36. The contrary statements in Palmer v. Merrill, 6 Cush. 282, 52 Am. Deo. 782, have not been followed. James v. Newton, 142 Mass. 366, 378, 8 N. E. 122, 56 Am. Rep. 692; Richardson v. White, 167 Mass. 58, 60, 44 N. E. 1072."
49 See infra, Sec. Sec. 487 et seq.
50 Smith v. Buroham, 3 Sumn. 135; Dougherty v. Catlett, 129 111 431, 21 N. E. 032; Esslinger v. Pascoe, 129 Ia. 86, 105 N. W. 362, 3 L. R. A. (N. S.) 147; Connor v. Tippett, 57 Miss. 594; Hackett v. Watts, 138 Mo. 502, 40 S. W. 113; Hartwig v. Gordon, 37 Neb. 657, 660, 56 N. W. 324; Wilkie v. Womble, 90 N. C. 254; Bowser v. Cravener, 56 Pa. 132, 140; Whitney v. State Bank, 7 Wis. 620. See also infra, Sec. 491, and as to parol rescission of a contract for the sale of land, ibid., ad fin. But see Nazro v. Long, 179 Mass. 451, 61 N. E. 43.
51 Montague v. Aygarn, 164 111. App. 596.
52 See infra, Sec. 521.
53 See infra, Sec. 530.
Intangible choses in action are not within the meaning of "goods and chattels" as these words are used in statutes requiring delivery or record of transfers of goods and chattels by way of security.55