As will appear from the following section important consequences follow from the answer given to the question whether the assignee's right is legal or equitable. If the matter is looked at from a historical point of view it is obvious that the protection of the assignee's right has been largely due to courts of equity.26 But, long before an assignee was allowed by statute to sue at law in bis own name, courts of law had adopted and applied the doctrines originated by courts of equity in regard to assignments; and though the assignee was compelled to use his assignor's name, his rights were generally enforceable, except in the case of partial assignments, in courts of law. In one sense, therefore, the assignee has a legal right; that is, he has a right enforceable in courts of law. But the term equitable right is used to indicate not simply the court in which a right is enforced but also the inherent nature of a right. It is unfortunate that legal terminology has not found separate words for these two ideas, but it is even more important to determine whether a right is equitable in the second sense than to determine in what court it is enforceable.27 The fundamental property impliedly affect intangible property also? It is unfortunate that the idea expressed in Walker v. Bradford Old Bank, 12 Q. B. D. 511, 515, should not rather prevail, "section 25, subs. 6 of the Judicature Act of 1873, does not in my view, give any new rights, but only affords a new mode of enforcing old rights." See also Close v. Independent Gravel Co., 156 Mo. App. 411, 138 S. W. 81.
26 See supra, Sec.Sec. 409, 410.
27 The word "equitable," has the following meanings in current legal
1. Exclusively enforceable in courts of chancery;
2. Enforceable in courts of chancery, though not exclusively;
3. Originally enforceable in courts of chancery though no longer so, but retaining characteristics which distinguished the right in Question when enforced in chancery;
4. Having characteristics of rights enforced by courts of chancery, though neither now nor at any other time enforced in such courts;
5. Pair or just.
It is in the third sense that the rights of an assignee are equitable. There is a corresponding ambiguity in the antithesis to "equitable," The antithesis to the fifth meaning given above is "inequitable," but the antithesis in each of the other cases can be nothing but "legal," which has, moreover, still another meaning as opposed to "illegal." See further, 31 Harv. L. Rev. 822.
characteristic of an equitable obligation in the latter sense is that it binds primarily a particular person, and binds others only when their relation to that person is such that in conscience they should be subject to his duties. The Court of Chancery has been the tribunal where such duties have ordinarily been enforced. But even in jurisdictions where the distinction between legal and equitable courts is still preserved, courts of law to-day enforce a great variety of such rights and duties without thereby changing their essential characteristics.
Though legal ownership is conceived fundamentally as a right good against all the world, actual instances of such ownership are often much more narrowly limited. The owner of a chattel which has been stolen from him is likely to find his right against the world considerably qualified if the thief is in a place where the principles of market overt prevail. In the law of sales of chattels, the legal title passes to the buyer, without transfer of possession, if the parties so intend; yet in many jurisdictions the seller in possession can destroy the buyer's right by a resale, and even the seller's attaching creditors are often allowed a right superior to that of the buyer. On the other hand, where statutory provision is made for giving effective public notice of an equitable right, the equitable owner may acquire rights good against the world. The recording system thus enables one who has an equitable easement or other equitable right in real estate, based on contract, to protect himself against the world. It follows that one whose title is equitable may have in a particular case much more comprehensive ownership than another person who has a legal title. One who has a recorded contract for the transfer of Blackacre, especially if he has paid the price and the time for conveyance has come, has more comprehensive rights than the grantee under an unrecorded deed of Whiteacre who has not paid the price' and whose estate is subject to a vendor's lien. Yet the former has an equitable and the latter a legal title.
Doubtless the reasons which have led to limitations of legal ownership have often been fundamentally the same as those controlling the habitual limitations of equitable ownership. In the case suggested above of a purchaser of a chattel without delivery, the reason why a purchaser in good faith from the seller in possession has been protected by courts of law, is the same reason which has led equity habitually to protect purchasers for value. The limitations set by recording statutes on legal titles have a similar foundation. Nevertheless, the methods by which such results are obtained at law and in equity are fundamentally different. The law achieves the result by imposing limitations on a title which would otherwise be absolute. Equity achieves the result by extending to others, so far as is conscientious, an obligation which is primarily personal to one. It may be conceded that even this distinction of method is not always observed, and that instances may be found where equitable ownership is treated in a way analogous to legal ownership, but, nevertheless, the fundamental distinction exists.
Whether in a theoretical system of jurisprudence it is worth while to have two roads by which the same result may be achieved is rather beside the point in England and America, for the two systems exist and the roots of the equitable theory of ownership sink too deep to make it possible to tear them up, and an attempt to do so is likely to cause more confusion and incorrect conclusions than advantages in a body of law which has developed for centuries with the double system.