Jersey-Madison-Randolph County IL Archives Court.....Mason, V Piggott 1849
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 May 22, 2008, 12:47 am

Source: Reports Of Cases Illinois
Written: 1849

Sarah Mason, late guardian of Martha Maria Mason and Paris Mason, v. Isaac N. 
Piggott.

Appeal from Jersey.

1. Jurisdiction — exclusive in court first obtaining. Because a court of 
equity has concurrent jurisdiction with a court of law, it will not, 
therefore, take cognizance of a case already pending in a court of law, and 
oust it of jurisdiction.

2. Same. 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 can not avail himself of at law.(1)

Bill in chancery.—Upon the 17th day of May, a. d. 1849, the complainant filed 
his bill in the Jersey county circuit court, averring, that, on the 27th day 
of May, 1836, he made a contract (which is made an exhibit, marked "A") with 
the defendants, for the purchase of certain real estate in the town of 
Grafton; that, at the time said contract was made, the spirit of wild 
speculation, was at its zenith, and prices of real estate were ruinously high; 
that, at the time the contract was made, the defendants, nor either of them, 
had any right, title or interest, in the lots sold; nor have they acquired any 
since; that the title, at the time of the sale, was in Martha Maria Mason, and 
the defendants had no right to sell the same; that the said. Sarah never 
complied with the requirements of the act of the legislature referred to in 
the contract; that the contract was void as to Martha Maria Mason; that, after 
the lapse of several years, and after the lots had utterly depreciated in 
value, and were almost entirely worthless, Martha Maria intermarried with Wm. 
H. Allen.

The bill avers that it is falsely and fraudulently pretended by defendants, 
that in the month of May, 1842, said Allen and his wife, and said Sarah Mason, 
executed, acknowledged, and tendered to complainant, a good and sufficient 
warranty deed for said lots, whereby would have been conveyed to him an 
indefeasible estate in fee simple; and demanded payment of complainant's notes 
referred to in said contract; that complainant refused to pay notes and 
receive deed. Bill avers that complainant was sued to the September term of 
Jersey circuit court, 1842, in assumpsit on said notes, by Paris Mason, for 
the use of the said Sarah; that said suit is now pending and undetermined on 
the common law side of the court. Bill avers that no such deed ever was 
tendered to complainant as above referred to; that he has offered defendants 
to repudiate and deliver up said contract, and demanded the notes; and he now 
offers so to do, and demands and insists upon the rescision of the contract 
and notes, and that the same may be cancelled and for nothing held. Prays that 
defendants may be enjoined from proceeding in their action at law, and that 
said contract may be cancelled. Bill sworn to, and injunction granted. 
Exhibit "A," referred to in the bill, is as follows: "Know all men, by these 
presents, that I, Sarah Mason, guardian of Martha Maria Mason, infant heir of 
James Mason, deceased, by Paris Mason, my attorney, by deed bearing date the 
12th day of May, 1835, am held and firmly bound unto I. N. Piggott, of the 
county of Greene, and state of Illinois, in the penal sum of three hundred and 
sixty-two dollars; the payment of which, well and truly to be made, I bind 
myself and my successor, as such guardian, firmly by these presents.

"The condition of the above bond is such, that whereas, the said I. N. Piggott 
has this day purchased at public sale lot No. 12, in block No. 10, and lot No. 
11, in block 38, in the town of Grafton, county of Greene, and state of 
Illinois, for the sum of one hundred and eighty-one dollars; and the said I. 
N. Piggott having executed his notes for the sum of one hundred and sixty-two 
and 90-100 dollars, bearing even date herewith, and payable to Paris Mason, 
for the use of Sarah Mason, guardian of said infant heir, one and two years 
from the date hereof; now, therefore, if the said I. N. Piggott shall pay, or 
cause to be paid, said sum of money specified in said notes, according to the 
tenor and effect thereof, then the said Sarah Mason, guardian as aforesaid, by 
the said Paris, her attorney as aforesaid, covenants for herself and her 
successor, to make and execute a good and sufficient deed, with warranty, of 
the above described lots of land, to said I. N. Piggott, or his assignee, in 
pursuance of and according to the provisions of an act passed by the 
legislature of the state of Illinois, entitled "An act for the benefit of the 
infant heir of James Mason, deceased," approved January 20th, 1836. But should 
said I. N. Piggott, or his assignee, fail to pay said sum of money specified 
in said notes, within ten days after the same becomes due, he hereby forfeits 
all claim to said lots, and all moneys paid thereon; and this bond, in such 
event, shall be void, both in law and equity, and the title to said lots shall 
continue in the original proprietor, as if no sale had been made.

"In testimony whereof, I have hereunto set my hand and seal, by Paris Mason, 
my attorney as aforesaid, this 27th day of May, 1836.

Sarah Mason, [L. S.] 
By her attorney, Paris Mason."

Defendants filed demurrer to the bill, in which complainant joined. Demurrer 
overruled. Defendants stood by demurrer, and declined to answer further. Court 
decreed complainant entitled to the relief prayed for; that the title bond, 
being exhibit "A," and the notes of complainant be cancelled, and for nothing 
held; and that complainant surrender to defendants said *title bond; [*88] 
that defendants give up the notes; and that defendants be perpetually enjoined 
from suing for the same.

Heard before Woodson, judge, at October term, 1849.

H. W. Billings and L. B. Parsons for appellants: The demurrer to the bill in 
this case should have been sustained for the reason that the court had no 
jurisdiction.

1. In all cases of concurrent jurisdiction, the court which first exercises 
it, must decide finally. Green v. Robinson, 5 How. Miss. R., 104; Flournoy's 
Ex'rs v. Holcomb, 2 Muni, 34; Smith v. McIver, 5 Cond. R., 664; Merrill v. 
Lake et al., 16 Ohio, 404; State Bank v. Stanton, 2 Gil., 353; Lishey v. 
Smith, 7 Humphrey, 299; Le Guen v. Gouvernour et al., 1 J. Cases, 493; Beaty 
v. Ross, 1 Branch, 198; Haden v. Garden, 7 Leigh R., 157; 2d Story's Equity, 
secs. 875, 885, 896.

2. All the rights of the parties in this case could have been fully determined 
at law. Mason v. Caldwell, 5 Gil., 204.

3. Want of parties to a bill may be raised at the hearing. 1 Barb. Ch'y 
Practice, 321. 

D. A. Smith, for appellee.

Treat, C. J. We have no doubt about this case. It was decided in Mason v. 
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 v. 
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 can not be 
successfully made at law, but on the ground that a court of equity has 
concurrent jurisdiction. It by no means follows because a court of equity has 
concurrent jurisdiction with a court of law, that it will take cognizance of a 
cause 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 can not avail himself of at law. Subject to this 
qualification, the rule is inflexible. Smith v. McIver, 9 Wheaton, 532; 
Merrill v. Lake, 16 Ohio, 373; Flournoy v. Halcomb, 2 Munford, 34; Green v. 
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.

-----------------
Cited — Boss v. Buchanan, 13 Ill., 59; Morris v. Thomas, 17 Ill. 112; 
Chittenden v. Rogers, 42 Ill., 95; Aldrich v. Polo, 8 Bradw. 45.
(1) Re-affirmed, Ross v. Buchanan, 13 Ill., 55, courts having concurrent 
jurisdiction the one first obtaining jurisdiction will retain it. Applied, 
Aldrich v. City of Polo, 8 Bradw., 45; where one party to a judgment before a 
justice of the peace takes an appeal to the circuit court, the other party, if 
he shall appeal, must take his appeal to the same court, he can not appeal to 
some other tribunal which may have jurisdiction. The court to which the first 
appeal is perfected obtains exclusive jurisdiction.

Additional Comments:
Reports of Cases Argued and Determined in the Supreme Court of the State of 
Illinois, from November Term, 1849, to June Term, 1850, Both Inclusive. By 
Ebenezer Peck. Volume XI. Annotated by Henry Binmore, of the Chicago Bar. 
CHICAGO: CALLAGHAN & CO. 1886.

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