Page:The New International Encyclopædia 1st ed. v. 07.djvu/196

* EQUITABLE ASSETS. 168 EQUITABLE EASEMENT. process- but it made them equitable assets, sub- a court of equity, as distinguished from a court feet to the order of the Court of Chancery. This of law. Thus, in an action on a promissory note, distinction has now been swept away in England and in the United States by statute. See Dece- dent. The expression 'equitable assets' is now ap- plied to any equitable property rights of a debtor which can be reached by creditors only by a proceeding in equity. Most equitable in- terests — though there are some important excep- tions — have been subjected by statute to the claims of creditors; but it is manifest that such an interest — a- the rights of a beneficiary of a trust, for example — cannot be reached by the ordi- nary legal process of an execution or attachment. The" creditor has resort, therefore, to a proceed- ing in equity known as 'creditor's bill.' In a few jurisdictions a statutory process has been devised for enforcing creditors' rights against either or both forms of property without distinc- tion. See Assets; Equity; Equitable Estate. EQUITABLE ASSIGNMENT. A transfer of the beneficial interest in property, real or personal, or of a claim or demand, the legal title to which remains vested in the transferror. It is effected by any transaction, as a defective legal assignment or even a mere agreement, whereby the owner of such property seeks to assign his interest therein to another, and it may operate even to vest in another the substantial control over property w-hieh is not assignable under the technical rules of the common law. The equitable mortgage (q.v.) is an illustration of the former, and the transfer of a right of action is a char- acteristic example of the latter. A formal deed is necessary to the creation or legal transfer of an interest in land, and a delivery of a chattel is requisite to vest the title thereto in the transferee; but the courts of equity will protect the interests of such a grantee who has parted with a valuable consideration in reliance upon it, even where the strict legal formalities have been omitted. This it does by compelling the execution of a valid instrument of conveyance or by vesting in the grantee the rights and privileges of an owner. In the same way, the defense of want of consideration is a legal defense, as tending to relieve the maker thereof from his liability on the contract : but the de- fense of fraud, being an allegation of extraneous matter, did not affect the legal liability, but was an equitablt defense and involved an appeal to equity jurisdiction. Under the old practice, by which the limits of common-law and equity juris diction were strictly defined, equitable defenses were not available in a court of common law. As early as 1854 in England it was enacted that such defenses might in many cases be pleaded in a court of common law, and such pleading did not debar the defendant from afterwards apply- ing for appropriate relief to a court of equity. The same permission is given by the codes and procedure acts in most of the American States. With very few exceptions, what were formerly equitable defenses may now be put forward, both in the United States and in England, in the same action and simultaneously with strictly legal de- fenses. See Equity; Procedure. EQUITABLE EASEMENT. A right to con- trol or restrict another, by injunction or other equitable process, in the lawful use of his land. This right arises under a variety of circum- stances, but usually where the owner of a parcel of land enters into a restrictive covenant as to hi- use thereof with a neighbor — as that he will not build within a certain distance of the street line; that he will not maintain a stable, a tavern, or other objectionable occupation thereon. Such a covenant is enforceable at law against the maker of it ; but as no burden can be imposed upon land by covenant, and as such a restriction cannot, however created, be recognized as a legal easement, it becomes inoperative as soon as the land is conveyed away by the covenantor to a stranger. If. however, the covenantor bound his heirs and assigns, as well as himself, to the per- formance of the agreement, the courts of equity will restrain a violation of it, not only by the covenantor himself, but by his heir, his devisee, or grantee without consideration, and by any assign who takes the land with knowledge of the the attempted transfer of property not at the covenallt. As in the United States the recording time in existence, or not yet acquired by the vendor or mortgagor, is regarded in equity as a valid assignment of the transferror's future in- terest therein, which becomes complete upon his subsequent acquisition of the title. See Estop- pel. of a deed is constructive notice of its contents to all subsequent purchasers of the property, this equity jurisdiction creates in this class of cases a right analogous to that known as an easement at law. The phrase 'restricted land' and 're- strictive covenants,' in common use in connec- Equity will also interfere to protect the as- tion with oity and subur ban property, have ref- signeeoi a chose inaction (q.v.), and permit him erenee to the ex ; s t en ce of such equitable ease- to prosecute the action for his own benefit, but ments. in the name of his assignor, who at common law Though the exercise of this jurisdiction is was -nil eons.Hered the owner of the claim and c l oae l y limited to agreements which are of a re- the rightful party in interest. '1 Ins awkward de st riet'ive character and which impose no active vice for securing the assignability of rights of dutv, 1] „„, thp owncr of the ]and an >,.ted. it has till employed in many of the 1 nited in ,.„,,.„, v ,,. irs ,„,,,„ j, r(, at i v exparrded so as to h it has lr , others hecn rendered un- mclude ,,,;,,_ in wnich there' was in fact no cove- necessary by statutory provisions rendering such rights freely assignable at law. An equitable o ignee t. il.es the assigned prop- liens, whether legal or equitable, to which it is Subject :it the time of the transfer. See Eqi I I V I EQUITABLE DEFENSE. A defense in an action or legal proceeding which is cognizable by nant, but only a general, but perfectly clear and definite, understanding among the various owners of ;i trait of land as to the uses to which it should I"- devoted. Accordingly, if land is sub- divided and sold in parcels, in accordance with a general scheme or plan, all who buy with notice of the restrictions contained in such plan are bound l hereby. See Covenant; Easement; Equity; Restrictive Covenant.
 * to all claims, set-offs, or