Holt v. Daniels

Chancery. Jurisdiction. Demurrer. 1. In equity an objection to the jurisdiction, where the fault appears upon the record, should be taken by demurrer, or if the demurrer is incorporated into the answer, it should be insisted upon before any trial upon the merits. '2. Where the court has general jurisdiction of the subject matter, such objection will be treated as waived unless so taken and insisted upon in limine. 3. But where the court has no jurisdiction of the premises under any cir cumstances, it will dismiss the cause at any stage of the proceedings. 4. Courts of equity have concurrent jurisdiction with courts of law in all cases where the common law action of account will lie. 13. Under the facts in this case, held, that a bill to redeem personal property sold conditionally would lie, and the suit begun by the vendor for the conversion of such was enjoined.

This was a suit in chancery. The bill alleged that some time previously the orator had bought of the defendant a colt, for which he had given the defendant his note with the condition that the colt should be the property of the defendant until the note was fully paid; that since the giving of said ' note there had been other deal between them, a“nd that there was due the orator a large balance from the defendant, more than sufficient to discharge the balance of the note, and that if upon an accounting between them anything should be found due from the Orator, he was ready and willing to pay such balance to the defendant; that the defendant for the purpose of embarrassing the orator liad begun a suit in trover against him for the conversion of the said colt, and that such suit was then pending; that since the giving of said note the orator had taken the farm.of the defendant to carry on upon shares, under a written memorandum, and that the defendant was largely liable to the orator under such written memorandum, but that the same was in the possession of the defendant, who refused to exhibit, to the orator, or to settle with him, and allow him the amount his due ; that in the making of the said farm trade lié had been largely damnified by the false representations of the defendant; that he had taken possession of the defendant’s farm, and carried on the same, and that the defendant utterly refused to account to him in the premises ; praying that an account be taken between the parties, and that if upon such an accounting there is any balance due the defendant upon said note, the orator may be allowed to pay the same and redeem the colt, and that the suit at law be perpetually enjoined. The answer admitted the making of the farm trade, and set out the contract in extenso ; denied that there was any balance due the orator on it, or that the note secured by lien on the colt had been paid; insisted that the orator had a complete remedy at law, and that therefore the court had no jurisdiction. The case was referred to a master who reported with reference to the circumstances under which the farm was leased¿¡and colt sold as follows : “ A few days before the lease was executed but when the •contract was in contemplation, the defendant sold to the orator a four-year-old horse colt at an agreed price of $116 and took from him his promissory note therefor and reserved a conditional lien on said colt for the security of the payment of said note by the orator. I find that it was the express understanding and agreement between the parties at the time this conditional sale was made and the note given by the orator, they then having in view the farm trade for the ensuing year, that the orator’s share of the money that should be derived from the sale of butter produced on the farm, when it should be sold in the fall of the ensuing year, should be applied first to the payment of this note, and that the orator and defendant both so understood it.” When the butter was so sold, there was more than enough of the orator’s share to extinguish the note, and the orator desired that it should be'so applied, but the defendant refused to so apply it, and claimed to retain it as security for the fulfilment of the terms of the lease on the part of the orator.” With reference to items 12 and 13 the master reported: “If in the opinion of the court the orator- can'recover damages in this suit for the false representations made by the defendant to the orator as to the productiveness of said farm, then I find that the difference between what the farm was represented to be and what'it really was, amounts to the sum allowed on these two items, $118, and that they should be disallowed to the defendant; but if in the opinion of the court such damages cannot be recovered by the orator in this suit, then said items should be allowed as designated above.” There had been other deal between the parties, and as a result of the entire accounting the master found that, allowing items 12 and 13, there would be due the defendant the sum of $75.02, March 1, 1881; that disallowing said items, there would be due the orator on said date the sum of $12.98. The defendant had demanded the colt of the orator, and on ■his refusal to surrender the same, had begun a suit against the orator in trover for its conversion, which was then pending. The master further reported that the defendant insisted at the earliest possible moment before him, that this suit could not be maintained for the reason that the orator had a complete remedy at law. To this ■ report the defendant filed exceptions, and the case was heard at the March Term, 1888, Washington County, Row-ell, Chancellor, upon the pleadings, report and exceptions thereto, whereupon it was ordered that the bill be dismissed. Appeal by the orator. The objection to the jurisdiction should be brought to the attention of the court at the first opportunity, and before the expense of a trial has been incurred. Hartford v. Ohipman, 21 Conn. 188 ; 1 Bom. Eq. Jur. 130 ; 1 lían. Ch. Pf. 52; First Soc. v. Trustees, 23 Pick. 118 ; Hóbbi v. Underhill, 3 Sandf. Ch. 277; Olastenbury v. Est. of McDonald, 11 Yt. 150; Wade v. Pulsifer,*51 Yt. 15 ; Paine v. Slocum, .56 Yt 504; Hoyt v. Hoyt, 58 Yt. 538 ; Smith v. Rock, 59 Yt. 232 ; Titilar v. Baxter, 59 Yt. 467 ; Me Lane v. Jolinson, 59 Yt. 237. Chancery lias jurisdiction. The hill was in the nature of a bill to redeem mortgaged property, and have the note delivered up to the orator to be cancelled. Blodgett v. Blodgett, 48 Yt. 32; Flanders v. Chamberlain, 24 Mich. 305 ; Patchin v. Pierce, 12 Wend. 61 ; Charter v. Stevens, 3 Denio 33 ; Hey-land v. Badger, 35 Cal. 404. Courts of chancery have concurrent jurisdiction with courts of law in matters of account between tenants in common and partners. Spaulding v. Holmes, 25 Yt. 491; Leach v. Beattie, 33 Yt. 195; Adams Eq. (star paging) 222. The defendant cannot recover damages from the orator springing out of a contract induced by his own misrepresentation, thereby obtaining the benefit of his own fraud. It is well settled that a party, cannot resort to equity if he has a complete remedy at law. In this case a suit was pending at law, and every matter of defence could have been made available to the orator in that suit which can be urged in this ; nor is it too late to take advantage of this. The defendant in his answer ■sets out the want of jurisdiction, and craves the same benefit of that allegation as though urged by demurrer, and insists upon this want of jurisdiction at the earliest opportunity before the master. Webb v. Fuller, 1 N. E. Rep. 296; Bole v. Pike, 2 N. E. Rep. 247; Wing v. Hall, 44 Yt. 118 ; Currier v. Rose-brooks, 48 Yt. 34; Smith v. Pettengill, 15 Yt. 82.