81 Va. 67 | Va. | 1885
delivered the opinion of the court.
No answer had ever been filed to this bill, and at May term of the court the cause was still at rules. But when the action at law came up for trial, the defendant made a motion in the common law case that the plaintiffs be put to their election between the two suits, and the court so ordered. And thereupon the plaintiffs applied for and obtained a writ of error and supersedeas from one of the judges of this court.
Now it is unquestionably “ settled,” as stated by Chancellor Kent in Jones v. Conde, that a mortgagee may sue, at the same time, at law upon his bond, and in equity upon his mortgage. The case of a mortgagee forms an exception to the general rule, that
And as a deed of trust to secure the payment of a debt, or a deed of assignment of property to a trustee to sell the property to secure the payment of debts already due, is, in substance and effect a mortgage, it would seem by analogy to be subject to the rules applicable to mortgages; and a creditor secured by such a deed would have the same right as the ordinary mortgagee to proceed, both at law and in equity, to enforce the collection of his debt. 2 Perry on Trusts, 2nd ed., S. 602, d. et seq.; 4 Kent’s Com. 142, 143.
It seems to be equally well settled that the defence, that the plaintiff is suing both at law and in equity for the same cause of action, cannot properly be made in a court of law, but must be made by a rule in the chancery suit obtained after the answer of the defendant has been filed, to put the plaintiffs to his election between the suits. And the reason for this is, that the complainant has at all times a right to a discovery in a court of chancery, though not for relief, if he chooses to seek it elsewhere. Lube’s Eq. PL, chapter eight, section two, p. 76; Williamson, trustee, v. Paxton, trustee, 18 Gratt. 504.
In this condition of the law, it seems clear that the plaintiffs in error are entitled to the interposition of this court, if it has properly acquired jurisdiction of the case. But upon this point there is more difficulty.
The order is as follows: “On motion of the defendant, a
The application of the plaintiffs to this court, therefore, was premature, and the writ of error must be dismissed as improvidently awarded.
Writ dismissed.