11 Ill. 85 | Ill. | 1849
We have no doubt about this case. It was decided in Mason vs. Wait, 4 Scammon, 127, that the sale of the Grafton lots was not binding on the ward; and that a purchaser might set up in defence of an action on the notes the inability of the guardian to convey a good title. It was held in Mason vs. Caldwell, 5 Gilman, 196, that it was competent for the ward, after she arrived at full age, and before a purchaser had avoided the contract by an offer to surrender the title bond, connected with a demand for the return of the notes, to adopt the contract, by executing and tendering a deed that would pass a good title, and demanding payment of the notes. It results from these decisions that a purchaser can defeat a recovery on the notes, on the ground of a failure of consideration, where the ward has done nothing to confirm the contract; or he may put an end to the contract by affirmative acts on his part, and thereby prevent the ward from ratifying and enforcing it. The complainant has, therefore, a complete defence to the action on the notes, unless there was a ratification of the contract on the part of the ward, prior to the commencement of the suit. Instead of making it in that action, he seeks to transfer the case to chancery; not because the defence cannot be successfully made at law, but on the ground that a Court of Equity has concurrent jurisdiction. It by no means follows becausé a Court of Equity has concurrent jurisdiction with a Court of law, that it will take cognizance of a case already pending in a Court of law, and oust it of jurisdiction. As a general principle, in all cases of concurrent jurisdiction, the tribunal which first obtains jurisdiction of the subject matter, must proceed and finally dispose of it. A Court of Equity will not take jurisdiction where it has first been acquired by a Court of law, unless there is some equitable circumstance in the case which the party cannot avail himself of at law. Subject to this qualification, the rule is inflexible. Smith vs. McIver, 9 Wheaton, 532; Merrill vs. Lake, 16 Ohio, 373; Flournoy vs. Halcomb, 2 Munford, 34; Green vs. Robinson, 5 Howard’s Miss. R., 80. The allegations of the bill, if true, show that the complainant has a full and adequate defence at law, and he must there interpose it. No circumstance is alleged that demands the interference of a Court of Equity.
The decree of the Circuit Court will be reversed, with costs, and the bill dismissed.
Judgment reversed.
