I dissent from the foregoing opinion, for the following reasons: The F. A. Drew Grlass Company attached a certain stock of goods, *57belonging to E. T. Baldwin, on the seventh day of January, 1885, the sheriff of Pettis county, on that day, seized the goods, made a list thereof, and held the exclusive possession thereof. Among the causes alleged for the attachment was one, that defendant was about, fraudulently, to convey, or assign, his effects; but, as the case went off on a demurrer, we have no right to assume the assignment afterwards made by the defendant was in the mind of plaintiff when he made the affidavit. We have not the right to suppose, in the most remote degree, that this assignment, which was for the benefit of all creditors, was in plaintiff’s mind. For aught we know, plaintiff had reference to some other disposition of the property, which he supposed was contemplated, when he sued out the attachment.
On the next day, viz: January 8, 1885, said E. T. Baldwin made an assignment to the interpleader, G. C. Heard, by which he conveyed to him, for the benefit of his creditors, the goods which had been attached, and other property and assets.
On the thirteenth day of February, 1885, the Drew Glass Company filed, with said assignee, the same account upon which they had brought suit and attached the stock of goods, and, on the day set for the hearing of claims, by said assignee, offered evidence in support thereof; the assignee refused to allow said claim, when the Drew Glass Company appealed from his decision to the circuit court of Pettis county, by which court the appeal was sustained, and said claim allowed.
Afterwards, the assignee filed his interplea, in which he claimed the property, under the assignment. The interplea set out the facts as to the attachment, showing it to have been levied anterior to the assignment, as also the proof of the claim before interpleader, as assignee. There was a demurrer to this interplea, setting up the following causes: First, said interplea shows upon its face that said interpleader, G. C. Heard, has no title or right of possession of the goods attached *58in said canse of the F. A. Drew Glass Company against said E. T. Baldwin. Second, that said interpleader had no title or right to possession of said property, at the time the same was attached, nor has he since acquired any such right or title, nor has he any such right or title as entitles him to recover upon such interplea. Third. Said interplea sets out in detail the facts which said interpleader alleges establish his title and right of possession of the attached goods, while such facts fail to establish any right of- possession, or any title to the-same, which he can hold or assert as against plaintiff’s claim,- as attaching creditor, under the writ of attachment under which said goods were attached.
This demurrer was overruled, defendant refused to plead further, and appealed to this court. The record here presents these questions, viz: (1) Does a prior attaching creditor estop himself from proceeding with his attachment, or waive his lien upon the attached property, by presenting his claim to the assignee for allowance, and procuring the allowance of the same ? (2) Is a prior attaching creditor compelled to elect either to rely solely upon his ability to sustain his attachment, and make out of the attached property sufficient to cover his claim and costs, or by presenting his claim for allowance to the assignee, give up the lien of his attachment ? In other words, must he elect either to stand on his attachment, and if he is beaten on a plea in abatement to his attachment, lose all, or, by having his claim allowed by the assignee, against the assigned estate, waiye his attachment, and surrender all lien upon the attached property ?
There is no question raised as to what dividends such attaching creditor might Be entitled to on his allowance, or how or when payable, or as to which fund should be first exhausted before going upon the other. There are two general rules in reference to assignments that are not disputed, or are, at least, well established ; one is that the assignee, succeeding only to the rights of the assignor, is affected by all equities against him, and. *59takes Ms property “subject to all existing liens, charges, and set-offs.” Burrill on Assignments, sect. 391. The other is that a party shall not contest the validity of an instrument from which he draws a benefit, or affirm it in part and disaffirm it in part. Irwin v. Tabb, 17 Serg. & Rawl. 442; Valentine v. Decker, 43 Mo. 583.
In this case, the attachment writ had been issued, and the property seized thereunder, a day prior to the assignment. This created a lien on the property, which, generally speaking, nothing subsequent can destroy but the dissolution of the attachment. Drake on Attachments, 224. The lien of the attachment existed prior to the assignment, and the assignee took the property subject to that attachment. Burrill on Assignments, sect. 391; Frost v. Wilson, 70 Mo. 664.
I. The important question, then, is, does the prosecution of the attachment to judgment operate as a contest of the validity. of the assignment ? I think not.- The attachment was levied before the assignment was made, and, as before stated, the assignment was subject to the lien of the attachment. Each exists in recognition of the other, and not in hostility. The assignment is made in recognition of the attachment, and subject to its lien, and the attachment remains in recognition of the right of the assignor to assign his property, subject to the attachment. I can conceive of no hostility in these positions.
The authorities recognize the right of secured creditors as subsisting under both the security and the assignment. Burrill on Assignments, sects. 116, .440. There is a diversity of opinion as to how, and upon what basis, the dividends shall be declared in such cases, but I do not understand the right to be in any manner questioned by the text-writers on this subject.
The case can be looked at from another view, and the result is the same. There is a principle of law that one shall not occupy inconsistent positions in reference to the same matter ; that he shall not play double. Thus, *60he shall not be permitted to attack an assignment and at the same time seek a benefit thereunder. ‘£ Approaching the fortress with a hostile intent, he should expect to find the gates barred.” Jeffries' Appeal, 33 Pa. St. 39. Such was the case of Valentine v. Decker (43 Mo. 583). In that case an attachment was levied on the goods assigned, after the assignment. The attachment was .sued out on account of alleged fraud in the assignment. The attachment was a direct attack upon the validity of the assignment. It was there said that “the real point presented is, whether Valentine & Company, by their attachment suit, taking the property out of the hands of the assignee and selling the same, are precluded from claiming any benefit in the assignment.” An examination of the long list of authorities cited by plaintiff will show them to be cases where the party claiming under the assignment was, at the same time, attacking it for fraud. Such was the principal case of Frierson v. Branch (30 Ark. 453). There the question was, as .stated by the court, “ Could the appellants claim under a deed, and at the same time attack and defeat a provision made by it for the benefit of other creditors ? In other words, could they be permitted to claim under the deed, and yet allege a fraud in its execution which would .avoid it on a bill brought by them * * * for the purpose of setting it aside?” As before observed, the case at bar is not like these; the attaching creditor is not attacking this assignment; he is merely enforcing his own rights and recognizing the rights of others. “It is no objection toa provision for creditors by an assignment that they have already been secured by judgment or mortgage. But such provision will be considered as made, subject to the equity as between the creditors, to have the mortgage debt paid out of the mortgaged property.” Burrill on Assignments, sect. 116; Perry Ins. & Trust Co. v. Foster, 58 Ala. 502, 520, 521; Strong v. Skinner, 4 Barb. 546.
In the case of Grant Chapman (38 N. Y. 293), *61the following provision was made in the assignment giving preference to the claim therein mentioned, viz.: “The amount that may be found due the sheriff of Madison county, by virtue of an attachment in the Supreme Court * * * provided the attachment proceedings are sustained, and are a lien upon the goods in the store.” The court said this was a provision in mere affirmance of the legal obligations of the assignee, authorizing him in terms to do precisely what the law, if the assignment was silent on the subject, would require him to do, and could not affect the validity of the instrument.
II. As to the question of election, I have this to say: An election implies a choice between conflicting-interests, rights or claims in the elector, and if what has been said is correct, there is no case for election here,, from the fact that there is no choice between conflicting rights. But if I am in error as to this, as well as the-other portions of this opinion, I am still of the belief that the demurrer should have been sustained, for the-reason that if it be a case of election, the time had not yet arrived at which defendant should be compelled to' exercise that right. The doctrine of election, though sometimes applied at law, is of an equitable nature, principally exhibited in cases of wills, and rests, more or less, upon equitable principles, and it appears to me to be unjust and inequitable to compel a prior attaching creditor to elect between his attachment and the assignment, before the attachment has been passed upon. If a plea in abatement should be sustained, the attachment would be of no avail, and while this is undetermined there can be no fair election, from the fact that there is not sufficient information as to what. his rights may be. “Persons compelled to elect are entitled previously to ascertain the relative value of their own property, and that conferred upon them. * * * In Boynton v. Boynton (1 Bro. C. C. 445), although Lady Boynton had, by her answer, elected to take her dower, instead of the benefit given to her by her husband’s will, Sir Thomas *62Sewell, M. R., declared on the hearing, that as no account of the testator’s personal estate and of his debts had been taken, she was not obliged to make any election until the account should be taken, and it should appear out of what real estate she was dowerable at the time of the testator’s decease, and it was referred to the Master to take account of the personal estate, and also state out of what estate she was dowerable. A person compelled to elect may file a bill to have all necessary accounts taken, * * * and an election made under a mistaken impression will not be binding, for in all cases of election, the court, while it enforces the rule of equity, that the party shall not avail himself of both his claims, is .anxious to secure to him the option of either, and not to hold him concluded by equivocal acts, performed, perhaps, in ignorance of the value of the funds.” 1 Lead. Cas. in Eq. 300. And so, in an attachment suit in Massachusetts, a plaintiff was held not cut off from the assignment, by prosecuting the action to judgment. “If they had prevailed in their action, and then elected to rely on the attachment rather than on the provision made for them in the deed of trust, this, undoubtedly, would have amounted to a waiver and disaffirmance of the trust.” New Eng. Bank v. Lewis, 8 Pick. 113.