(specially concurring).
I concur in the result reached in the opinion by Justice Pederson, but primarily for reasons set out herein and on the basis that assignments in the original and technical sense referred to transfers of interest in real property [6A C.J.S. Assignments § 2, p. 591] and, unless otherwise specifically provided, embraced the same principles of law and equity.
*768In Moore v. Lium, 80 N.W.2d 657 (N.D.1957), involving a chattel mortgage, the court held that the assignee acquired not only the rights of its assignor but was also chargeable with the assignor’s knowledge of prior encumbrances against the property at the time of extension of credit.
In my opinion, the applicable rule of law is that in the absence of fraud, an assignment of a demand deposit (checking account in the bank) without any qualifications or limitations transfers to the assignee all of the funds in the demand deposit and all of the assignor’s liabilities (outstanding checks) against the demand deposit.
The trial court, in its memorandum opinion, stated:
“In the law suit before me on March 7, 1977, Thompson filed a Third Party Complaint against the Pioneer State Bank, Roger West as Receiver of that bank, and the State Bank of Towner, the successor bank. In this Third Party Complaint Thompson states:
1. He had $31,000 in his checking account on which he drew the $30,000 check November 16, 1976, to Willow City Elevator,
2. That said account has been under the control of all the Defendants,
3. That the above check was wrongfully dishonored,
4. That he made numerous demands upon the banks to honor it,
5. That the banks ‘intentionally or maliciously refused’ to honor the check, and
6. That their failure to do so ‘constitutes a breach of their duty of good faith’ and constitutes ‘bad faith.’
“In view of this pleading, did Thompson have the right to assign on May 5, 1977, this checking account to some other creditor? Especially a creditor, the Vogel law firm, that had knowledge of all the factual background? The assignment itself is a sweeping one, and apparently the Vogel law firm has filed a security instrument along with the assignment. The security instrument would be no more valid than the New Rockford Bank security instrument. The assignment assigns to the Vogel firm the sum of $37,-103.59 on May 5, 1977, for past legal services rendered to Thompson. The assignment is attached to Mr. Bye’s brief of August 17 and is as follows:
‘It is hereby agreed by and between the parties as follows: Hayden Thompson, for valuable consideration, hereby assigns to the law firm of Vogel, Vogel, Brantner & Kelly the sum of $37,103.59 out of any and all monies now due and owing from the State Bank of Towner, Towner, North Dakota, to Hayden Thompson and hereby directs and instructs the State Bank of Towner to pay said sum to Vogel, Vogel, Brantner & Kelly out of the following checking accounts, savings accounts and/or certificates of deposits that are in the State Bank of Towner and upon which Hayden Thompson exercises control and withdrawal authority (*emphasis supplied by Court.)
Then is listed numerous accounts, including checking account under the name of Hayden Thompson in the amount of $31,-707.86.
“In view of the facts set forth above, the law of assignments and the specific statements by Thompson in his Third Party Complaint, I hold that Thompson does not have ‘withdrawal authority’ as set forth in the above assignment. I hold that the monies in this account are not ‘due and owing’ Thompson.”
I agree with the trial court’s reasoning and holding.
Justice VOGEL agrees with this special concurrence.