This action was begun by a bill of inter-pleader to determine the ownership of a deposit of $25,000 in the hands of W. S. K. Brown. The trial court determined that the National Bank of Commerce, formerly the National City Bank, was entitled to all of the fund except a small amount not now in controversy. The Washington Industrial Building Company, also claiming the fund, appeals from the decree. This money was deposited by James K. McDowall in compliance with the terms of a 99-year lease dated January 28, 1926, from Mary H. Murray et al. to James K. MeDowall, lessee. The lease, among other things, provided for the construction of a building upon the leased premises by the lessee. The lessee was required by the terms of the lease to furnish a surety bond in the sum of $175,000, guaranteeing the completion of the new building, and, be*fore the demolition of the building then upon the premises, agreed to make the deposit of $25,000 involved in this controversy. The terms of the lease with reference thereto are as follows:

The appellant bases its claim to the deposit upon an assignment of the lease. The first assignment of the lease was executed by J. K. MeDowall, the lessee, and his wife to the Union Street Building Company on February 27, 1926. On October 1, 1926, while the Union Street Building Company held the lease under this assignment, J. K. MeDowall executed the assignment of this deposit to the National City Bank under which the trial court sustains the claim of the appellee, its successor. When MeDowall applied to the National City Bank in September, 1926, for a loan of $25,000, he exhibited the instrument of lease to the officers of the bank, and stated that he was the owner of the lease and of the deposit of $25,000 which had thereto *843 fore been made and wbieb was then in the hands of W. S. K. Brown; and that he desired to secure the proposed loan by an assignment of said deposit and to use the money thus obtained for the purpose of the erection of the new building called for by the terms of the lease. The officers of the bank at Seattle, Wash., immediately communicated with W. S. K. Brown in San Francisco, and were informed that he held this deposit of $25,000' under the terms of the lease, and would pay it to the-parties entitled thereto when the purpose of its deposit had been accomplished. Thereupon the bank made the loan and took an order by MeDowall upon Brown dated October 1, 1926, as security. This order was sent immediately to Brown on October 1st, the date of the loan, and was accepted in writing by Brown on October 5th, and thereupon returned to the bank. At the time of this transaction MeDowall was president and general manager of the Union Street Building Company to which he and his wife had theretofore assigned the lease. They were the sole trustees of that corporation, and owned all but five of the two thousand shares of its capital stock. During this period MeDowall was making all the expenditures on account of the lease from his own funds, and was operating in his own name, and he continued thereafter to do so with the exception of the proceeds of one loan later secured from another bank. Thereafter, on the 20th of June, 1927, the Union Street Building Company assigned the lease to the North Pacific Building Company, and on the 10th of August, 1928, the North Pacific Building Company assigned the lease to the appellant. The appellant bases its claim to the fund solely upon these assignments of the lease. The appellee, on the other hand, claims that this agreement to repay the deposit to the lessee was a personal covenant which did not run to the land, and therefore was not transferred by these assignments. The clause of the assignment relied upon by the appellant to convey the title to the deposit is as follows:

In view of the fact that MeDowall secured the loan from the appellee by representing that he was the owner of the deposit, the Union Street Building Company, of which he was then president and general manager, could not set up title thereto as against the bank which has made a loan to MeDowall in’ reliance upon his statement that the deposit belonged to MeDowall. It must therefore be held,that prior rights, if any, of the Union Street Building, Company, were waived in favor of the bank, which was induced in this manner to advance money for the carrying on of the work required to be done by the lessee under the terms of the lease to which their attention was called. As to the rights of the assignees of the Union Street Building Company, it should be observed that before such assignments were made the appellee had perfected its title by notice to the stakeholder and by securing, an acceptance of MeDowall’s order for the return of the deposit. The Supreme Court in Salem Trust Co. v. Manufacturers’ Finance Co., 264 U. S. 182 , 44 S. Ct. 266, 270 , 68 L. Ed. 628 , 31 A. L. R. 867, held that mere priority of notice of an assignment did not give a second assignee title to a chose in action as against a prior assignee, but noted the following exception:

Applying this rule to the facts above stated, the first assignment to the Union Building Company would by reason of the representations of McDowall, its president and general manager, be subordinated to the claim of the appellee bank,. and the subsequent assignments would be subordinated to the claims of the appellee who had theretofore secured an acceptance of its order. See Third Bank of Philadelphia v. Atlantic City (C. C. A.) 139 F. 751 . We find it unnecessary to pass upon the question as to whether the assignment of the lease otherwise was 'sufficient to vest title to the deposit in the assignee. There is persuasive authority to the contrary. Nemtzoff v. Vagnier (Sup.) 163 N. Y. S. 1075; Shattuck v. Buck, 158 App. Div. 809 , 143 N. Y. S. 1045; Zustovich v. Morrison, 163 Ill. App. 44 ; Werthemier v. Marks, 81 Misc. Rep. 137 , 142 N. Y. S. 331; Sanford v. Zimmern, 76 Misc. Rep. 434 , 134 N. Y. S. 1116.

Judgment affirmed.