
    Haden v. Garden.
    February, 1836,
    Richmond.
    Fraud — Failure to Plead in Suit at Law — Right to Resort to Equitys. by fraud and deception prac-tised od G. procures him to execute a bond to H. upon which H. brings suit against G. and recovers judgment against Jilm by default; G. flies a bill ill equity to be relieved against the j udgment, on the ground of the fraud practised upon him, without assigning any reason for not having defended himself at law : Hum), that as he might have defended himself at law on a plea of non est fac-tum, he is not relievable in equity.
    Same — Same—Same.—Tliough courts of equity and courts of law have a concurrent jurisdiction in case of fraud, yet if a suit be first brought in a court of law, in which the question of fraud may be tried and determined, the party injured by the fraud must mate his defence there ; and if he neglect to do so, the court of equity has no jurisdiction to relieve him.
    'Thomas Garden exhibited a bill against Richard Haden, Robert Scott and Beverley Scott, in the superiour court of chancery of Hynchburg, alleging, That Robert Scott having purchased a parcel of land of John Scott, which had been previously mortgaged by John for debts due by him, sold the same land to Robina Scott, for 1200 ^dollars, for which she executed two bonds to him for 600 dollars each, Robert Scott binding himself by written agreement, to clear the title o£ the incum-brance upon it, before the bonds for the purchase money should be discharged. That, after this contract between Robert •and Robina Scott, the plaintiff Garden married Robina. That sometime after the marriage, .Robert Scott applied to Garden to give him his own bond to be substituted for the bond of his wife executed before her marriage; to which Garden assented. That Scott then produced a bond which he had already written for Garden to sign, and Garden, believing that Scott was the obligee named therein, executed it; but afterwards the bond was produced by Haden, and it appeared that Haden’s name was inserted therein as the obligee. That this bond had not been altered after execution ; but Garden agreed and intended to give his bond to Scott, and executed the instrument in the full belief that Scott was the obli-gee named therein; and Scott fraudulently procured the execution of the bond to Haden, by concealing the fact that it was made payable to him. That Haden assigned the bond to Beverley Scott, who brought a suit upon it, and Garden suffered judgment to be entered by default. That Garden and his wife had been wholly evicted of the land, the purchase money whereof was the consideration of the bond, the land having been sold under the mortgage of John Scott, for the debts thereby charged on it, and having proved insufficient to pay them. Therefore, the bill prayed an injunction to stay proceedings on the judgment at law, and general relief.
    The injunction was awarded.
    Robert Scott, in his answer, admitted all the allegations of the bill.
    Haden answered, that before Garden’s bond was delivered to him, he had a claim for debt against Robert Scott, for about 545 dollars, which he had prosecuted to an award of execution on a forthcoming bond against *Scott and his sureties therein bound, and Scott had procured an injunction to stay further proceedings on that judgment. That, in this state of things, Scott agreed to procure Garden’s bond executed to him (Haden) for 600 dollars, and he agreed to accept the same, in satisfaction of his judgment; the amount of the bond being somewhat less than the amount of the judgment with interest and costs. That Scott accordingly brought him Garden’s bond executed to him (Haden), which he accepted, and released his claim on his judgment against Scott and his sureties. That under these circumstances, Garden had no equity as against him. That it was remarkable, that of the two bonds for 600 dollars each, executed by Garden’s wife to Scott before her marriage, this bond to Haden was given for one, and the other was left in Scott’s possession, and was by him assigned to another person, Garden himself being instrumental in enabling Scott to pass it oil. And .that, instead of a fraud having been practised by Scott upon Garden, to procure Garden’s bond to Haden, the circumstances shewed that Garden and Scott had combined to practise a fraud upon him.
    Beverley Scott answered, that he was an assignee of the bond in question for valuable consideration paid.
    During the pendency of the suit in the court of chancery, Haden paid the money to his assignee Beverley Scott, and the as-signee’s judgment against Garden was transferred to him.
    The depositions of many witnesses were taken and filed by the plaintiff and the defendant Haden; but it is only necessary to state the substance of one of them; namely, that of the defendant Robert Scott, which was regularly taken for the plaintiff. His deposition sustained all the allegations of the bill. He deposed too, that he had offered Haden Mrs. Garden’s bond for 600 dollars, in satisfaction of Haden’s judgment against him; which Haden refused to receive, but agreed to take Garden’s ’’bond for that amount; and he gave the following account of the manner in which he procured the execution of Garden’s bond to Haden — that Garden having previously agreed to give Scott his own bond or 600 dollars in lieu of his wife’s bond for that sum, the witness prepared two bonds written on paper of the same form, one payable to himself, and the other payable to Haden; that he shewed the first to Garden, who read it, and while he was preparing to sign it, he (Scott) slipped the other into its place, and Garden, ignorant of the change of the papers, executed that. It appeared, that Scott was, at that time, and still is, insolvent.
    The chancellor, being of opinion that the allegations of the bill were proved by the evidence, perpetuated the injunction, and gave Haden a decree against Scott, for the amount of the judgment against Garden. Prom which decree Haden appealed to this court.
    
      Robinson, for the appellant.
    Johnson, for the appellee.
    
      
      Chancery Practice — Failure to Make Defense at Law —Right to Resort to Equity. — On this question the principal case is cited in Slack v. Wood, 9 Gratt. 43, and note', Hudson v. Kline, 9 Gratt. 384 (see note); footnote to Morrison V. Speer, 10 Gratt. 228 ; foot-note to Donally v. Ginatt, 5 Leigh 359 ; foot-note to Beckley v. Palmer, 11 Gratt. 625: Virginia Min. Co. v. Wilkinson, 92 Va. 100, 22 S. E. Rep. 839 ; Vance v. Snyder, 6 W. Va. 31; Shields v. McClung, 6 W. Va. 88 ; Evans v. Taylor, 28 W. Va. 187. See also, Turner v. Davis, 7 Leigh 227; Morgan v. Carson, 7 Leigh 238.
      Conflict of Jurisdiction — How Determined. — In Craig v. Hoge, 95 Va. 279, 28 S. E. Rep. 317, it is said, incases of conflict of jurisdiction, it is well settled as t’ne general rule ttiat between two courts of concurrent j uriscliction, the court which first acquires cogni-sance of the cause, or obtains possession of the property in dispute, is entitled to dispose of it without interference or interruption of the co-ordinate court, and having flrst acquired jurisdiction it is entitled to retain it until the end of litigation, and should proceed to decide all questions which legitimately flow out of the subject-matter of the controversy in the case, and finally dispose of it. Citing among other cases Haden v. Garden, 7 Leigh 157. See mono-graphic note on "Jurisdiction” appended to Phippen v. Durham, 8 Gratt. 457.
    
   BROCKENBROUGH, J.

Without going into the inquiry, whether'or no the plaintiff Garden might have defended himself at law, on the ground on which he sought relief in equity, lam of opinion, that, upon the proofs in the cause, he has no right whatever to equitable relief, and that the decree should be reversed, and the bill dismissed.

CARR, J.

Upon the facts relied on by Garden in his bill, he had a perfect legal defence against the bond executed bjr him to Haden. Eor, surely, if he meant to execute it to Scott; if a bond drawn payable to Scott was read to him as that which he was to execute, and, at the moment of execution, a bond to Haden was substituted for it, and executed by him without knowing the change; a plea of non est factum might have been *supported. No excuse has been stated, for the failure to make the defence at law. If it be said, that the courts of law and equity have concurrent jurisdiction in such matters of fraud, that is true; but it is equally true, that in all such cases, the court which first gets possession of the cause, will make an end of it; and anj’- defence which a party according to the rules of that tribunal can make, must be made there. This is a settled rule; and I apply it the more willingly to this case, because I think the facts of the case, and the situation of the parties, present grounds for suspicion of combination and collusion between these brothers in law.

CABELE, J.

I am of opinion, that the decree ought to be reversed, on the ground, that the plaintiff in equity might have defended himself at law, and has assigned no reason for his failure to do so.

BROOKE, J., concurred.

TUCKER, P.

I am of that the injunction awarded the plaintiff ought never to have been granted, that it should have been dissolved on the hearing, and that the bill should have been dismissed.

As little tenacious as I may seem to be on the subject of jurisdiction, yet I am decidedly of opinion, that wheie a party has a full, perfect and unembarrassed defence at law, of which he fails to avail himself, without even the pretence of an apology, he cannot be relieved in equity. Such was certainly Garden’s case. If the statements in his bill, and in the depositions of his own witnesses are true, the instrument upon which he was sued was not his bond; and he might have pleaded the plea of non est factum with a safe conscience, and sustained it beyond contradiction. Por, besides the fraud, which of itself avoided the deed at law, delivery, either to the obligee or to some one for him, was ^'essential to constitute the instrument a valid bond. But this, so far from being the case, is directly the reverse of the fact, as proved by the subscribing witness, and by Robert Scott himself. I think, therefore, he had a full defence at law, and it would seem he was full handed with evidence.

Nor does the consideration that equity has concurrent jurisdiction, make any dif-1 ference. The jurisdiction of equity to relieve against a fraud, is no excuse for the omission to make the defence, when the party is already before a court having full cognizance of it, in a case depending before that court. Garden was sued at law, and might there have had redress. Shall he, without even a pretext, multiply litigation by instituting this second suit in equity? Shall he be permitted to shrink from the jury trial, which must have decided the case at law, and bring his adversary into equity, where he may escape, and actually has escaped, that ordeal? I think not, and am therefore of opinion he was not entitled to any relief.

But if this objection' be waived, then parties are before us upon their respective equities. In a comparison of these, I am of opinion that those of Haden must prevail. Garden or Haden must lose. On whom should the loss fall? On him who has enabled Scott to deceive the other. Was neither Garden nor Haden to blame? Was Scott the only perpetrator of the fraud? Then their equity is equal, and Haden must be left to the benefit of his judgment. Is Garden, howevef, censurable for laches and carelessness? Then it is most clear, that he must be the sufferer, as he has enabled Scott to cheat Haden; to compromise and discharge Haden’s just demands, by the delivery of a bond of Garden to him, carrying on its face every appearance of fairness, and unquestionably genuine as to signature. What are the circumstances? Scott wished to pass Mrs. Garden’s bond to Haden. This Haden declined to receive; but *he agreed to take Garden’s bond made payable to himself, for the same amount. Scott applied to Garden, got a new bond of Garden to Haden, delivered it to Haden, and discharged thereby his debt to him. The paper is genuine as to signature, and there is moreover a subscribing witness. What doubt could Haden have about its fairness? What negligence or want of caution can be fairly imputed to him? None whatever. Is it so with Garden? Scott applied to him to give his own bond to him. Unless he either designed to fix Garden’s liabilitj', whatever might be the event as to the land, or unless he wished to pass off the new bond to more advantage, I know not what motives he could have had ; and if these were his motives, Garden cannot complain of being held liable. But, in truth, there is that in the transaction, which goes to shew, either that Garden knew the change was made for the purpose of passing off this bond to soma third person, or that he ought to have been put upon his guard by the very nature of the proposition. Why was it, that the other bond of Mrs. Garden was not also changed? That was kept in its original form, and left to Scott’s disposal, and it appears in proof, was in fact passed away by him. Why was this bond written by Scott, and brought to Garden to sign, instead of being written by Garden himself? There was enough to have prompted inquiry on the part of Garden, as to the bond in dispute, and as to Scott’s motives for desiring the change as to one bond only; yet Garden was satisfied with Scott’s explanation, which would have applied as well to the other bond as to this. I cannot think he has been duly cautious in this regard ; nor can I readily acquit that man of a -want of due care, who suffers such a trick to be played upon him, as is detailed in this cause. He must be content to sit down under the loss, rather than it should fall upon one who was altogether innocent.

*If instead of executing a new bond, the old one had been about to be assigned to Haden, and in reply to an inquiry as to its validity, Garden had signed a note written by Scott, acknowledging its validity, and promising payment, he would have been bound beyond question, I presume, by whatever legerdemain of Scott he might have been deceived into doing so. The case at bar is, if possible, stronger; for here the old bond is given up, and a new one executed in which Haden is made the obligee. And this too is written by Scott, instead of by Garden himself, as was the natural course of things; and he executes it, permitting Scott (as the story is) to cheat him by substituting for the paper he had read, another which he had not read. All these things lead to the belief, that the new bond was executed for Scott’s accommodation, and excite strong doubts of the truth of the allegation, that Garden did not know what was to be done with the bond. But if this be not so, they shew', at least, a want of caution and prudence in Garden, which ought to place the loss upon him rather than upon Haden.

Decree reversed, and bill dismissed.  