When this case was before us at June Term, 1873, (69 N. C. 551,) it was assumed as conceded, that the agreement between the Carolina National Bank and the Merchants Bank,, was intended as an assignment of an e-half of tlx© *313asset's of the latter, to the former, as a security for the residue of the debt, amounting to over $10,000.
It is now contended, apparently for the first time, that the agreement was intended to be, and was in effect, an absolute assignment of one-half of what the Merchants Bank should collect of its assets, to the Carolina Bank, in consideration of a discharge and release of the debt from the former, to the latter, which was released by the agreement ; the evidences of debt being left with the Merchants Bank as a co-owner, and as agent for the Carolina Bank as to its half. On the other side it is contended, that the agreement did not assign any part of the evidences of debts held by the Merchants Bank, but only the one-half of the proceeds of those debts when they should be collected, which would be a mere personal executory contract on the part of the Merchants Bank, in no wise binding on its other creditors.
It is certainly difficult to say what was the intention of the parties, and we regret that the points were only suggested, and not fully argued.
The language of the agreement seems almost studiously vague and cloudy.
After reciting that the Carolina Bank had sued the Merchants Bank in the Circuit Court of the United States to recover $19,331 on notes issued by the Merchants Bank, and that the parties had agreed, to “ settle said suit, with all the matters controverted therein, or appurtenant,” the Merchants Bank agreed, immediately to pay the Carolina Bank, one-half the debt and interest, “ and to satisfy, pay and discharge the remainder of said indebtedness, by faying over to the Carolina Bank, as tiie same shall be reasonably collected, fifty per cent, of so much of all the assets of the Merchants Bank, as man) be sufficient therefor; Provided, &c.” And the Carolina Bank “ agrees to accept the said payment, and the agreement just hereinbefore mentioned, in full satisfaction, payment and discharge of said suit, and of all matters therein controverted *314 or appurtenant” and to dismiss the suit. The agreement then proceeds to release the stockholders from individual liability.
We are of opinion, that the Carolina Bank did not intend to release its debt against the Merchants Bank, aud to take either the agreement of that Bank, or the assignment ot the half of its assets, in payment of the debt. The Merchants Bank is to pay its remaining indebtedness, by paying over the half of what it may collect, until the debt is paid, — but when enough shall have been collected and paid over to pay the sum remaining due, no more is to be paid. This, taken with the cautio-us language of the subsequent, release, is conclusive that an absolute assignment of one-half the assets was not intended ; for in that case, the Carolina Bank would have been entitled to continue to receive half the collections, after its debt was paid, and altli'.ngh the amount might have greatly exceeded its debt. The language of the releasing clause, seems carefully to avoid releasing the debt. The Carolina Bank accepts the agreement, “in payment of the suit ” (not of the debt sued tor) “and of all matters therein controverted.” We do not know what matter was con ta-o verted, and if the Merchants Bank, had in pleading in that suit, denied its liability upon the bills sued on, the phrase would be an exceedingly awkard and round about way of releasing that liability. The phrase “and appurtenant,” probably refers only to the costs. When the intention is to release the stockholders, it is clearly and directly expressed, which shows that the parties knew how to use appropriate terms to express their intentions.
We think that the parties intended the agreement to have effect as an assignment of halt the assets of the Merchants Bank, as a security for its remaining indebtedness.
Whether, by reason ot its being not a direct assignment of fbe assets, but only an executory personal covenant to pay over when collected, it would, had it have been duly registered, have had effect as ara assignment, as to ei editors and purchasers without actual notice, we think it is unnecessary to determine.1 For, we have no difficulty in saying, that if we *315regard it as a direct and actual assignment of the evidences of debt, jet, not having been registered, it is void as to the plaintiffs. Smith v. Washington, 1 Dev. Eq. 318.
The defendant then contends that the plaintiff has acquired no estate or lien to which the law gives a preference, in the particular debts of Gooding and Jerkins, and as between two assignees, neither of whom has a legal estate or lien to which the law gives a preference, equity will give priority to the first in time. For this he cites Lindsay v. Wilson, 2 D. & B. Eq. 8.
The principiéis admitted. The only question is, whether in this case the law does not give the plaintiff a preferable lien.
The Act of 1868-’69, ch. 148, sec. 1, (Bat. Rev. ch. 17, sec. 261,) enacts, that no execution shall be a lien on the personal property of the defendant, as against Iona fide purchasers for value, or against other executions, except from the levy. As the Carolina National Bank released the personal liability of the stockholders of the Merchants Bank, it was a purchaser for value. But as the assignment was a security only, and was not registered, it was still void as against the plaintiffs as we have seen. Now, at what time did the plaintiffs acquire any lien upon the debts owing by Gooding and Jerkins?
The debts being choses in action were incapable of an actual seizure by the sheriff, and as by the C. C. P. sec. 264, ^nd the following, they were made liable to execution, by analogy, the lien must be held to have been acquired when the plaintiff did what appropriated the debts to his judgment, as a levy would have appropriated tangible property. It may be that this appropriation was made by service of process on the debtors under sec. 266, O. 0. P., but as we are not required to decide on this point, we refrain from doing so. We think, at least, an appropriation was made, and a lien acquired, when the Superior Court directed the debts of Gooding and Jerkins to be applied to the plaintiffs’ judgment.
The plaintiff had certainly then, done what was equivalent to a levy. The case cited, therefore does not apply: the *316equities of the parties are not equal, for, as against the plaintiffs, the National Bank of Carolina has no equity, and the plaintiff has alien at law. It is just as if a debtor had made a mortgage of tangible goods, which was not registered when they were levied on under execution.
PeR Curiam. Judgment affirmed.