If, however, the objection to the validity of an assignment is not that it is void but voidable only at the option of the assignor, or of some third person, the debtor has no legal defence whether or not action is brought in the assignee's name for it cannot be assumed that the assignor is desirous of avoiding the assignment.81 The generality of the statements in some of the cases so deciding would lead to the belief that the debtor not only might, but must pay an assignee who had acquired his assignment by fraud. The correctness of such a view cannot be admitted. It is true that not even an ordinary equitable defence is permissible to an action by the assignee.81a The defrauded person may not wish to take advantage of his right to avoid the assignment and unless he does so, the debtor should be required to pay the assignee. The only way to protect the rights of all persons is to require the debtor to join, by way of interpleader, the assignee and the person who may be defrauded, offering to pay to whichever of these parties may be held entitled to receive payment, and unless the debtor takes this course he should be liable to a defrauded third person, or to any other person having a similar equity.82 Where
79Higga v. Northern Assam Tea Co., L. R. 4 Ex. 387; Ex parte Universal life Assurance Co., L. R. 10 Eq. 458; Merchant Banking Co. v. Phoenix Steel Co., 5 Ch. D. 205; Harris v. Baltimore, 73 Md. 22, 17 Atl. 1046, 20 Atl. 111, 985, 9 L. R. A. 677; King v. West Coast Grocery Co., 72 Wash. 132, 129 Pac. 1081. See also Kull v. Thompson, 38 Mich. 685.
80 Colonial Bank v, Sutton, 79 N. Y. Mise. 244, 139 N. Y. 8. 1002.
81 Wood v. Steele, 65 Ala. 436; Lehman v. Clark, 85 Ala. 109, 4 So. 651; Prouty p. Roberts, 6 Cush. 19, 52 Am. Dec. 761; Carrier v. Sears, 4 Allen, 336, 339; Blanchard v. Commonwealth, 6 Watts, 309; Stoner v. Commonwealth,
16 Pa. 387. See also Kull v. Thompson, 38 Mich. 686.
81a Nothing can be allowed as an equitable defence at law which would not form the basis of an unconditional permanent injunction in equity.
82 In Chappelear v. Martin, 46 Ohio St. 126, 12 N. E. 448, payment by the maker of a promissory note to the bearer was held no discharge where the maker had notice that the note did not belong to the person who presented it.
In Currey v. Joplin Savings Bank, 100 Mo. App. 632, 74 S. W. 1036, the indorsement of a certificate of deposit was secured by a trick prao-ticed upon the depositor, and payment the debtor has notice, not that any specific person has been defrauded by the assignment, but that the assignment has been made in fraud of creditors, it is certain that no valid plea at law based on these facts can be made.83 And no procedure by way of interpleader seems possible here, or necessary to make safe payment by the debtor to the assignee. The debtor cannot be required to interplead all creditors that may be defrauded. The creditors acquire no right against the claim assigned or against any specific property until they attach it.84 As an assignee takes subject to defences there may be against his claim, so he is entitled to any advantages to which his assignor was entitled with reference to the claim. Thus an assignee for value is entitled to the benefit of any securities for the claim, though not in terms assigned."85 So if the assignor was entitled to priority of payment from the debtor's estate, the assignee is entitled to the same priority, since he is in effect enforcing the assignor's right.86 by the bank which bad issued the certificate to the indorsee with notice of the facte was held no defence to an action by the depositor.
The situation is somewhat analogous to that of a bailee of goods who seeks to set up a jus tartii as a defence to an action by the bailor. As to this see, Williston, Sales Sec.421. Wherever the debtor may otherwise be liable again he should be allowed to interplead.
83 Blackford v. Westchester Fire Ins. Co., 101 Fed. 90, 41 C. C. A. 228; Wood v. Steele, 65 Ala. 436; Gilmore v. Bangs, 66 Ga. 403; Sullivan v. Bone-steel, 79 N. Y. 631; Kamber v. Beaker, 27 Pa. Super. 266.
84In Murphy v. Marland, 8 Cuah. 676, the court hald that an assignee under an assignment made in fraud of creditors might specifically enforce the assigned contract against the debtor.
85Edwards v. Bay State Gas Co., 184 Fed. 979, and eases cited; Griffin v. Camack, 36 Ala. 696, 76 Am. Dec. 844. In ease of saveral partial assignments, each assignee is entitled to such a ratable portion of the security as the fraction of the claim assigned to him bears to the whole. The first partial assignee cannot claim the whole security so far as necessary to enable him to collect the portion of the debt assigned to him. Carlisle v. Jumper, 81 Ey. 282; Moore's Appeal, 92 Pa. 309.
86 Thus the assignee of a claim for wages is entitled to the same priority under the National Bankruptcy Act as the assignor. Shropshire v. Bush, 204 U. S. 186, 27 S. Ct. 178, 61 L. Ed. 436. So the assignee of the claim of a material man. In re Bennett, 153 Fed. 673, 82 C. C. A. 631. And see to similar effect as to assignments of claims entitled for various reasons to priority. Union Trust Co. v. Walker, 107 U. S. 696, 2 S. Ct. 229, 27 L. Ed. 490; Left-wioh Lumber Co. v. Florence Bldg. Assoc., 104 Ala. 684, 18 So. 48; Duncan v'. Hawn, 104 Cal. 10, 37 Poo. 626; MoAvity v. Lincoln, etc., Co., 83 Me. 504, 20 Atl. 82; Sepp v. McCann, 47 Minn. 364, 60 N. W. 246. Cf. Tewka-bury v. Bronson, 48 Wis. 681, 4 N. W. 749.