The common law recognized two kinds of property, tangible property of which delivery of possession or livery of seisin 35 might be made, and intangible property which in so far as transferable at all was appropriately transferred by deed. As has been seen, a chose in action was not assignable in a strict sense, and even by deed the best that could be done was to create at law an irrevocable power to collect and a right in equity to enforce the assignment so far as that could be done without injury to legal titles or prior equities. Authority to collect, however, can be given without the formality of a deed or even writthe law may be elsewhere, it must be regarded as the settled law of this State that an agreement, either by parol or in writing, to pay a debt out of a designated fund does not give an equitable lien upon the fund, or operate as an equitable assign meat thereof." Williams v. Ingeraoll, 89 N. Y. 608, 518, adding: "It was so decided in Rogers v. Hosack's Executors, 18 Wend. 319. That case was followed, and the same rule laid down in Christmas v. Russell, 14 Wall. 69, 20 L. Ed. 762, and Trial v. Child, 21 id. 441," 22 L. Ed. 623. To the same effect are Randel v. Vanderbilt, 75 N. Y. App. Div. 313, 319, 78 N. Y. 8. 124, where the above language was quoted and applied, and Wright v. Aero Corporation, 128 N. Y. S. 72S. Dexter v. Gordon, 11 App. Cas. D. C. 60, like the New York decisions, distinguishes between a promise to assign in the future and a promise to pay out of a particular fund, holding that the former gives a lien but the latter does not. See also DeWinter v. Thomas, 34 App. Cas. D. C. 80, 27 L. R, A. (N. S.) 634. The case of Ingeraoll v. Coram, 211 U. S. 335, 29 S. Ct. 92, 53 L. Ed. 208, seems a solitary American decision allowing an equitable lien based on a promise to pay out of a particular fund. It may be, however, that this represents the English law. See Durham v. Robertson,  1 Q. B. 766, 769. In Elmore v. Symonds, 183 Mass. 321, 67 N. E. 314, the court said: "We are of the opinion that where nothing more appears than an agreement, whether oral or in writing, by the owner of real estate, to collect, either personally or by his agents, the rents that may accrue therefrom, and turn them over to his creditor in payment of a debt, even though the money represented by the debt has been used to increase the value of the property, equity will not, in the absence of a stipulation to that effect, or of language from which such an intention clearly appears, create a lien or charge upon the estate, or the rents arising therefrom, to secure the creditor." Citing - Pinch v. Anthony, 8 Allen, 636; Falmouth Bank p. Cape Cod Ship Canal Co., 166 Mass. 550, 567, 44 N. E. 617; Rogers v. Hosack's Ex'rs, 18 Wend. 319, 334; Morton v. Naylor, 1 Hill, 583; Richards v. Shingle, etc., Co., 74 Mich. 57, 41 N. W. 860; Wright v. Ellison, 1 Wall 16, 17 L. E. 556; Walker v. Brown, 165 U. S. 654, 17 8. Ct. 453, 41 L. Ed. 865. Cf. Kingsbury v. Burrill, 151 Mass. 199, 24 N. E. 36.
35 Livery of seisin was as applicable to chattels in the early law as to real estate. Ames's Lectures on Legal Hist. 172.
ing, and if an assignment is intended, however the intent may be shown, courts will carry out bo far as possible the intention. It was stated in an early Massachusetts case that "it is uniformly holden, that an assignment of an instrument under seal must be by deed: in other words, that the instrument of transfer must be of as high a nature, as the instrument transferred." 36 No authority is cited for this statement, but it has been several times repeated in Massachusetts.37 There seems no warrant for it either on principle or authority, and parol assignments of choses in action under seal have been universally upheld in other jurisdictions.38 It is possible that the confusion as to the necessity of a sealed assignment arose from a failure to distinguish assignments of ordinary covenants from assignments of covenants running with the land. In order that the benefit of a covenant shall run with the land it is essential that title to the land be transferred and a larger estate than a leasehold can only be transferred by deed. Consequently, without a deed, it may be said that the covenant cannot be assigned, so as to make the assignee entitled at common law to sue in his own name upon it. Here, however, we are dealing with an exception to the rule that choses in action are not assignable, and seeking the requisites for bringing a case within the exception. Moreover, even here it is not the assignment of the covenant which must be under seal, but the deed conveying the estate.39
36 Wood v. Partridge, 11 Mass. 488, 491.
37 Brewer v. Dyer, 7 Cush. 337; Bridgham v. Tileston, 5 Allen, 371; Sanders v. Partridge, 108 Mass. 656, 558. These were all cases of leases and the question involved was whether the assignee of a lease could sue in his own name on the covenants contained in the lease. The case last cited points out that ownership of the leased estate can be transferred without a deed and that ownership of the estate involves a right to sue on the covenants. But the court in distinguishing the earlier decisions repeats the formula that an assignment of a contract under seal must itself be under seal. Of. Dunn p. Snell, 15 Mass. 481, and Currier v.
Howard, 14 Gray, fill, which state the contrary.
38Row v. Dawson, 1 Ves. 8r. 331, 332; Moore v. Waddle, 34 Cal. 145; Barrett v. Hinckley, 124 111. 32, 14 N. E. 863, 7 Am. St. Rep. 331; Montague v. Aygarn, 164 111. App. 590; Bobbins v. Bacon, 3 Greenl. 346; Winship v. Portland Base Ball, etc., Assoc., 78 Me. 571, 574, 7 Atl. 706; Prescott v. Hull, 17 Johns. 284, 292; Ford v. Stuart, 19 Johns. 342; Canna-day v. Shepard, 2 Jones Eq. 224, 228; Durst v. Swift, 11 Tex. 273.
39See Sanders v. Partridge, 108 Mass. 556. So an assignment of a mortgage of real estate, where a seal is necessary for a conveyance of land, should be under seal. Den v. Dimon,