
    Dennis Dwyer and Levi Niswonger, Assignees of James Niswonger, v. Henry A. Garlough, James Niswonger, and Mary Niswonger.
    1. The power given to an assignee in insolvency, by the fifth section of the act (S. & S. 395) regulating the mode of administering assignments in trust for the benefit of creditors, to sell and convey the real estate assigned, does not enable such assignee to extinguish, by sale, the inchoate right of dower of the wife of the assignor, in the assigned property.
    2. A mortgagor of real estate, whose wife joined in the mortgage, releasing her dower interest in the property mortgaged, made, before the maturity of the mortgage debt, an assignment, under the statute, of all his property in trust for the benefit of his creditors. In an action brought to foreclose the mortgage against the mortgage debtor and wife, the assignees in insolvency were made parties defendant, and pleaded in defense the fact of the assignment, their qualification, the giving of the required notice to creditors, and that they were actively engaged in the execution of the trust: Held, that the facts alleged did not oust or affect the jurisdiction of the court.
    
      Motion for leave to file a petition in error to reverse the judgment of the Superior Court of Montgomery county.
    The defendant, Henry A. Garlough, brought an action, in the Superior Court of Montgomery county, against James Niswonger and Mary, his wife, to foreclose a mortgage executed by them to him, March 24, 1876, to secure the payment of two thousand dollars. After the execution and delivery of the mortgage, and before the maturity of the mortgage debt, James Niswonger, the mortgagor, made an assignment of all his property, including that embraced in the mortgage, to the plaintiffs, in trust for the benefit of his creditors. The plaintiffs were made parties defendant to the action in foreclosure, and by their answer set up the fact of the assignment, their qualification thereunder, the' publication of notice to creditors according to law, and that they were actively and diligently engaged in the execution of the trust.
    The plaintiff demurred to the answer, assigning for causb that the facts therein stated were not sufficient to constitute' a defense to the action. The court sustained the demurrer and gave judgment for the plaintiffs. It is now sought to file a petition in error to reverse the judgment.
    
      Craighead § Craighead, and Dennis Dwyer, for the motion.
    
      M. P. Nolan, contra.
   Boynton, J.

This case presents a question of jurisdiction. It is contended by the plaintiffs, assignees of the insolvent mortgagor, that by the filing of the deed of assignment in the probate court, and the execution of a bond by them, to the approval of the court, for the faithful performance of their duties, that court acquired jurisdiction of the subject-matter of the trust, and that the jurisdiction thus acquired was exclusive of that of all other courts, within the rule, that where a court of competent jurisdiction has acquired possession of the subject-matter of litigation, and the right of a party to prosecute his action has once attached, the right of the court to retain the ease, and of the party to prosecute it, can not be defeated by the institution of proceedings in another court, although of concurrent and coordinate jurisdiction.

The existence of the rule contended for is clearly established. As between courts of concurrent and co-extensive jurisdiction, the one whose power is first invoked by the institution of proper proceedings, and the service of the required process, acquires the right to adjudicate upon the whole issue, and to settle the rights of the parties to the exclusion of all other tribunals. Keating v. Spink, 3 Ohio St. 105; Ex parte Bushnell, 8 Ohio St. 599; Taylor v. Carryl, 20 How. 583. The rule is said to rest upon comity and necessity. But the rule stated has no application, where the powers of the court first áequiring control of the subject of litigation, are so far limited, or defective, as to be unable to afford that relief to the parties to which they are either legally or equitably entitled.

Where a court of law aud a court of equity have concurrent jurisdiction over the same subject, it frequently happens that the former tribunal, because of inadequate or limited powers, is unable to afford that relief which a party has the right to demand, and which a court of equity is fully competent to give. In such case, a court of equity is clothed with complete jurisdiction, and if necessary to the full protection of the rights of a party, will enjoin further proceedings in the action at law. In so doing, it but exercises that jurisdiction very commonly and properly resorted to in cases where there is no specific, adequate, and complete remedy at law. Smith v. McIver, 9 Wheat. 532.

The application of this principle to the present controversy renders unnecessary a decision of the question, at what point of time in the progress or history of the proceedings in the probate court the jurisdiction becomes exclusive in cases where that court possesses power to grant complete relief? Garlough held a mortgage executed by the plaintiffs’ assignor, whose wife had released her inchoate right of dower in the premises mortgaged. For the satisfaction of his debt, he had the right to foreclose her equity of redemption, and to sell her interest in the property mortgaged as well and as fully as to foreclose and sell the equity therein of the husband. Sweesey v. Shady, 22 Ohio St. 333; State Bank of Ohio v. Hinton, 21 Ohio St. 509; Bell v. The Mayor of New York, 10 Paige, 49; 1 Scrib. on Dower, 482.

A judgment which failed to secure to him the avails-of a sale of this .interest, and their application to the-payment of the mortgage debt, if necessary to discharge-it, failed to afford and secure him that relief to which he-was clearly entitled. Rut neither the probate court nor the assignees had the power, under the act regulating the mode of administering assignments in trust for the benefit of creditors (S. & S. 395), or otherwise acquired, to cause-the inchoate dower interest of the wife in the property mortgaged to be extinguished by a sale to which she did. not consent.

'The statute is the source of power possessed by the court. The jurisdiction is purely statutory. The interest or estate-that the assignee is authorized to sell, either with or without an order from the probate court, is defined by the fifth section of the act. That section requires the assignee to make due return of all sales of real estate, made by him, to-the probate judge, and if confirmed, to execute a deed to-the purchaser, “ conveying the title, free from all liens on the same, for all debts due by the assignor.” The property-required to be sold is the real and personal property assigned. The property assigned was the property belonging to the assignor, and did not embrace or include the-inchoate dower interest therein belonging to his wife. In authorizing or empowering the assignee, upon confirmation of the sale, to convey the title free from all liens on the same for all debts due by the assignor, the legislature evidently contemplated liens created by him. It was not intended to include liens on an interest in the property, that did not belong to the assignor, and which constituted no-part of his estate. Motion denied,  