Delval v. Gagnon

99 N.E. 1095, 213 Mass. 203, 1912 Mass. LEXIS 704

• Court: Massachusetts Supreme Judicial Court
• Decided: December 11, 1912
• Status: Published

Opinion

DeCotjbct, J.

This is a bill to reach the verdict obtained in the action of Gagnon v. Legare and to apply it in satisfaction of a debt alleged to be due from Gagnon to the plaintiff Delval. The case is here on an appeal from the decree of the Superior Court dismissing the bill.

Unquestionably the balance due upon the loan made by Mrs. Gagnon to the defendant Gagnon before her marriage to him, can be recovered by her assignee; and that exceeds the amount of the verdict. MacKeown v. Lacey, 200 Mass. 437. Crosby v. Clem, 209 Mass. 193.

Further, we assume, without deciding, that the verdict in the Legare case is “property” of Gagnon that can be reached by equitable attachment under R. L. c. 159, § 3, cl. 7. A right of action for personal injuries is not assignable either at law or in equity, and hence a verdict in such a case before judgment does not come within the operation of the statute. Bennett v. Sweet, 171 Mass. 600. But a right of action for a tortious act occasioning injury to property, such as the conversion of personal property, is assignable and can be reached and applied to the payment of debts. Rice v. Stone, 1 Allen, 566. Pettibone v. Toledo, Cincinnati & St Louis Railroad, 148 Mass. 411. 4 Cyc. 24, and cases cited.

Nevertheless the trial judge was warranted in dismissing the bill. It appears from the statement of agreed facts that two months before the filing of this bill it was expressly agreed between Gagnon and his attorney Mr. Wood that the proceeds of the judgment about to be obtained in the action against Legare should be taken by Wood on account of Gagnon’s indebtedness to him for services and disbursements in that and other litigation. It was not a mere promise to pay the attorney out of the proceeds of the judgment. Even without the agreement he would have a lien for his fees and disbursements in that action. R. L. c. 165, § 48. Bruce v. Anderson, 176 Mass. 161. There appears with reasonable certainty an intention to give to Wood a charge or incumbrance upon this specific fund as security for the sum due him; in fact as the indebtedness exceeded the amount of the verdict and judgment, there was virtually an appropriation of the fund to him. As between the parties this created in favor of Wood a right to have the identical fund subjected to the payment of his debt; ■—• a right in the nature of a lien and enforceable in equity. 3 Pom. Eq. Jur. § 1235. Coram v. Davis, 209 Mass. 229. Westall v. Wood, 212 Mass. 540. The plaintiff cannot avail herself of the’ fact that notice of this equitable lien was not given to the debtor Legare. Nor is there any suggestion in the agreed facts that the agreement whereby the fund in question was to be regarded as security for the indebtedness of Gagnon was made in bad faith, or for the purpose of defeating the rights of other creditors. As between the rights of the present plaintiff and those of Wood, no such superior equities are shown in her favor as would entitle her in these proceedings to reach and appropriate this special fund.

Decree affirmed.