
    Achilles Pugh v. Henry B. Brown and others.
    When one court of chancery has obtained rightful jurisdiction over a subject, another court of chancery, of only equal authority, should not assert jurisdiction over the same subject, but whenever the fact is shown by competent evidence, should dismiss the bill; and the cause for dismissal is not removed by an appeal of the case.
    This is a bill in chancery, reserved in Hamilton county.
    The bill was filed in the commercial court of Cincinnati. By the statements of the bill, Pugh sold to' Brown three-twelfths of the Cincinnati Chronicle printing office, subscription list, and all things pertaining to the said concern, for the sum of fifteen hundred dollars. By the article of sale, which was dated September 21, 1846, it is shown that the consideration was payable as follows: Two hundred dollars in hand, the remainder in notes; one for one hundred dollars in sixty days ; one for four hundred dollars in ten months, with interest from date ; one for four hundred in sixteen months, and one for four hundred in twenty-two months, both with interest; in which article of sale it was stipulated that said Pugh should retain, by virtue of said article, a full and perfect lien upon the said three-twelfths of the property thereby sold, as security for the payments of the notes above described; and if any of the notes should not be paid at maturity, the contract of sale itself should be void, and all the money paid thereon (provided the amount did not exceed $300), should be forfeited.
    The article of sale and mortgage was filed in the office of the recorder of Hamilton county, on the 27th January, 1847, pursuant to the provisions of the statute in such cases made. The note of $400, at ten months, and the note of the same amount at sixteen months, had fallen due at the time of filing the bill, and both of them, principal and interest, remained unpaid, and Brown refused to pay them, though often requested.
    The complainant avers in his bill, that he is informed, and believes that Mary J. Taylor, guardian of the infant heirs of Caleb W. Taylor, deceased, Amos B. Corwine, Samuel L. Corwine and Samuel Davis, claim some right in, or assert some claim upon the said property, the precise nature of which he cannot state..
    The bill prays for process against said Brown, Mary J. Taylor, A. ■ B. and S. L. Corwine, and Samuel Davis; that an account be taken of the principal and interest due upon the notes; and in ease the amount be not paid within a limited time, that the property mortgaged be sold to pay the claim of the complainant, and also for general relief.
    Brown, in his answer, says, that he purchased three-twelfths of the Cincinnati Chronicle establishment from the complainant, and for the terms of purchase, refers to the copy of the article filed with the bill. That by the agreement, the defendant did not become responsible for any of the individual debts of Pugh, and only for such of the partnership liabilities as were then entered on the books of the Chronicle establishment. That Mary J. Taylor, at the time of said purchase, held a mortgage on the establishment for about $2,500, and it was understood between Pugh and respondent, that respondent did not assume any liability growing out of said mortgage, but that Pugh was to save him from all harm arising out of the same. The said mortgage debt was not a partnership debt, and did not appear on the books of the concern. The respondent further states, that complainant bound himself by his agreement, to convey to the respondent, one-fourth of the Chronicle establishment, and did convey the same ; and that respondent entered upon the duties as associate editor, which duties he continued to discharge, till the sale of the establishment, by the sheriff, on the 8th of December, 1846. The sale was for debts contracted before respondent became a member of the firm; that he did not contribute to that result, nor could he have prevented it.
    
      The respondent further says, that a short time after his pur chase, in order to protect himself, he assumed to pay to Mary J. Taylor $625, the amount of her mortgage on his interest, which he contends he had a right to do, inasmuch as Pugh could not make him a good title to any portion of the Chronicle establishment.
    The respondent denies that the principal and interest of the notes in the bill mentioned, remain unpaid. He says that complainant had, himself, entered upon one of the notes, a credit to him, of $279, and that the nature of the whole transaction, and of respondent’s connection with Pugh, will more fully appear, by reference to his answer to the bill of Pugh, in the superior court of Cincinnati, a copy of which he files and makes a part of his answer in this case.
    Respondent further states that after he assumed to pay to Mary J. Taylor, the aforesaid sum of $625, the complainant acknowledged the same to be a payment to him for so much, and in substance, agreed to credit the amount on the notes.
    Also, that he is advised the article between him and complainant does not operate as a mortgage; that when Pugh failed to make him a good title, or when it was ascertained that he had no title, the said agreement became void.
    That at the sheriff’s sale above mentioned, the establishment was sold to the highest bidder, and purchased by R. M. Cor-wine, for his brothers A. B. and S. L. Corwine. The complainant Pugh was present at the sale, and gave no notice of any lien or claim against the establishment, with the exception of the mortgage of Mrs. Taylor. Immediately after the sale, the sheriff notified the complainant that he would proceed forthwith to put the purchasers in possession, to which the complainant made no objection, and possession was then given to R. M. Corwine, for the purchasers. Respondent says further, in his answer, that he has no interest, whatever, in said Chronicle establishment.
    The other defendants also file answers.
    The Corwines allege that they had no knowledge of the mortgage set out in the bill; state that on the 8th day of December, 1846, they purchased the Cincinnati Chronicle printing establishment, including the subscription list, and all other property and things pertaining thereto; that all the interest of said Pugh and Davis had been levied upon by the sheriff of Hamilton county, by virtue of an execution in favor of Howell and Seely against said Pugh, Davis, and Adams Peabody, and after due advertistement, had been sold to said Corwines; that before the sale, Pugh gave notice of the mortgage of Mary J. Taylor, and this was all the lien or incumbrance pretended to exist; that the sheriff, after the sale was concluded, and he was paid the purchase money, told Pugh that he was about to put the purchasers in possession, to which Pugh made no objection, and set up no further claim. The Corwines then took possession, and .have continued to hold it ever since. After making further statements, with a view to show that they had title to the whole property, subject only to the mortgage of Mary J. Taylor, they aver that they purchased .from Mrs. Taylor, her mortgage, and executed in lieu the.reof, certain notes executed by them and their co-defendants, Brown and Davis, for $2,400, and another mortgage to her upon the establishment.
    They further state that there is now pending and undetermined, another bill for same cause of complaint, and praying for the same relief, with other matters as set up in this, in the superior court of Cincinnati, wherein said Pugh is complainant, and respondents and others are defendants, and they claim, whatever may be the decision in this cause, that said Pugh may be charged with the costs of this proceeding.
    Davis answers, amongst other things, that the establishment, on the 8th of December, 1846, was sold by the sheriff, to the Corwines; that the sale was made subject to Mrs. Taylor’s mortgage, and no other; that the Corwines took possession, with the assent of the sheriff, Pugh, himself, and his co-defendant Brown, and have ever since held the same in their own right. This respondent disclaims having any interest in the establishment.
    The answer of Mary J. Taylor states, amongst other things, that on the 8th December, 1846, said Davis, Brown, and the Corwines, assigned to her all their interest in the'establishment; said conveyance being made upon condition that $2,500, with interest, should be paid to her, according to the tenor of certain notes, particularly therein described ; that all of the said notes remain in her possession, and unpaid, except the semi-annual interest, which has been paid, so far as due. She further states that some of the notes have become due, claims that they are the first and best lien upon the property, asks that her rights may be protected, that her answer be taken as a cross bill against the complainant and her co-defendants, and that she may have a decree against said Davis, Brown, and the Corwines, for the amount of the notes due, and interest on the other notes.
    Upon the hearing of this cause, the bill, answers, depositions, and all the exhibits in the cause above mentioned, pending before the superior court of Cincinnati, are introduced in evidence ; and the counsel for the defendants insisted that the bill, in this case, ought to be dismissed, because of the pendency of the bill in the superior court.
    That bill was filed on the 13th of February, 1847. The bill in the case now in hearing, was filed originally in the commercial court of Cincinnati, on the 13th of April, 1848. The bill in the superior court was brought by said Pugh, against Geo. W. Harlan, Adams Peabody, and the. said Davis, Brown, Mary J. Taylor, and A. B. and S. L. Cor wine.
    Besides various other matters set forth in this bill, includ ing the statement of a partnership between himself, said Davis and Brown, said Pugh alleges that said Harlan, Davis, and himself, executed to Mary J. Taylor, the said mortgage for $2,500, upon the printing establishment, and sets out the same by copy attached to the bill. He also sets forth, that on the 21st of September, 1846, he sold an.interest of one-fourth of the said concern, (that is, the printing establishment,) to said Henry B. Brown, for $1,500, and makes a copy of the article of sale a part of bis bill. He avers that Brown has paid for his interest, only the sum of $800, and that Brown compelled the complainant to deduct $279 from the payment due, contrary to the intention of the complainant. He further proceeds to state the judgments recovered by Howell and Seely; that they caused executions to issue and to be levied on the interest of himself and said Davis, in certain printing presses, types, and other materials, being an interest of three-fourths, subject to. the mortgage first mentioned; that the sheriff, on the 8th of December, 1846, sold the same to A. B and S. L. Corwine, whereby the interest of Brown was altogether exempted from contribution towards discharging' the liabilities of the said concern.
    The complainant further, in the said bill, pending in the superior court, charges, that said Davis, Brown, and the Corwines procured said Mary J. Taylor to transfer to the said CorwineS' the mortgage first named, in secret trust for said four defendants ; that they paid only $50, but that they executed another mortgage to said Mary J. Taylor, upon the establishment, for the same sum of money, a copy of which last mortgage is made also a part of the bill.
    The complainant further states that he had hoped that Davis & Brown would have contributed with him in the purchase of new materials, and proceeded in the business of the partnership; but that combining to defraud complainant, they and the Cor-wines have taken possession of the establishment, to the exclusion of the complainant, and assumed to print and distribute the Cincinnati Chronicle, have collected the partnership debts, and the materials belonging to it, and usurped the management of its affairs, against the complainant’s assent, and denying him access thereto. Complainant prays the court to decree that an account be taken between said Davis, Brown, and himself, and proper disposition be made of the partnership assets.
    That Davis redeem $1,500, with interest, of the money secured by the mortgage first mentioned.
    
      That Brown be decreed to withhold demand of the residue oi the sum secured by the mortgage aforesaid till he has accounted with the complainant, and paid the full value of his share in the said concern.
    And in default thereof that the establishment be sold and a distribution be made of the proceeds of sale among the creditors and partners. That the Corwines be decreed to account. In the meanwhile that Davis, Brown, and the Corwines be enjoined from publishing the newspaper, collecting debts, subscriptions, etc. That a receiver be appointed to take charge of the establishment, conduct the same, and collect the debts, subscriptions, etc. To all which is added a prayer for general relief.
    The answer of the defendant Brown to the bill in the superior court, which he makes a part of his answer in this, sets up amongst other things, the claim that the title of Pugh to the establishment has failed, and that the respondent is entitled to a decree for the money heretofore paid by him on account thereof.
    
      Pugh & Pendleton, for complainant, cited the following authorities :
    
      Johnson v. Evans, 7 Man. & Gran. Rep. 249; Jacky v. Butler, 2 Lord Raym. 871; 2 Story’s Eq. 597 ; Hill's Lessee v. West, 8 Ohio Rep. 224 ; 4 Kent’s Com. (5 ed.) 293; Jackson v. Curtis, 19 John. Rep. 325 ; Wilson v. Troup, 2 Cow. Rep. 230; 2 Dan. Ch. Pract. 819; 3 Sug. on Vend. (6 Am. ed.) 345, 6, 7; Snelgrove v. Snelgrove, 4 Des. Ch. Rep. 289 ; 9 Ves. 33, 34; 14 John. Rep. 63, 74; 1 Munf. Rep. 496, 7 ; 10 John. Rep. 544-8 ; 2 Wheat. Rep. 383 ; 3 Wheat. Rep. 527; 6 Wheat. Rep. 467; 1 John. Ch. Rep. 590; 17 John. Rep. 367 ; 18 John. Rep. 532; 2 John. Ch. Rep. 87-90 ; 3 John. Ch. Rep. 583 ; Sug. on Vend. 766-71; 1 Atk. 384; 4 P. Will. 243, 307 ; Amb. 421, 589; 2 Atk. 236 ; 8 Wheat. Rep. 502; 5 Peter’s Rep. 718; 7 John. Ch. Rep. 67; 1 Cr. 100 ; 3 Cr. 133-5 ; 1 Wash. C. C. Rep. 75 ; 7 Cr. 44 ; 7 Peters 271; 
      Sanger v. Eastwood, 19 Wend. Rep. 514; Gregory v. Thomas, 20 Wend. Rep. 17 ; Moody v. Paine, 2 John. Ch. Rep. 548; 1 John. Ch. Rep. 471; 6 John. Rep. 559.
    
      Coffin & Mitchell, for defendants.
    I. The pendency of another case in the superior court of Cincinnati, upon this pretended mortgage, is a bar to the proceedings here.
    This defense may be made:
    1. In the answer. Story’s Eq., sec. 736, 7, 8; Mitford’s Pleadings 246, 247.
    2. If it appears from the pleadings or evidence the court will proceed no farther.
    Where another court has obtained jurisdiction the court cannot proceed. 16 Ohio 373, 404, 405.
    II. 1. The bill is to foreclose three-twelfths of a printing establishment. The bill is defective in not setting out who owns the other nine-twelfths.
    2. A court of equity will not direct a sale of an undivided interest in a partnership concern.
    It would be a sale of a right to institute another suit in equity, in reference to the same subject-matter.
    3. This shows that full relief can be had in the case in the superior court.
    III. The Oorwines are bona fide purchasers without no' tice.
    Pugh’s sale of balances was a sale representing that that was all he claimed. Pugh gave notice of one claim. Silence as to this was a fraud.
    The Oorwines were not bound to know the existence of this paper. Title to personal property is not generally evidenced by paper writings.
    IV. By the first mortgage to Mrs. Taylor, Pugh transferred all his interest to her.
    
      He had only a right to redeem. Can he sell a part of that right to Brown — take back a mortgage, and then interfere with the property before he redeems the Taylor mortgage ?
    Mrs. Taylor and her assigns cannot be disturbed in this property until that debt is paid off, and the right to redeem must be exercised in a reasonable time. 2 Story’s Eq. § 1030, 1031; 7 Cowen 290 ; 8 Johnson’s Rep. 96 ; 6 Paige 587 ; 2 Vesey jr. 378 ; 9 Wend. 80 ; 12 Ib. 61; 3 Denio 33.
    V. If the mortgagor does not redeem within a reasonable time, the mortgagee may sell, after notice, and the title will vest absolutely in the vendee. 2 Story’s Eq. § 1031.
    Mrs. Taylor sold the property itself, and it is expressly conveyed by the sealed instrument executed by her. Pugh had notice.
    Corwines may hold the property and hold the mortgage. The two titles will be kept distinct, if that was the intention, and it is the interest of the party to do so. 4 Kent 102, 3 ; 18 Vesey 384; 1 Paige 192 ; 2 Cowen 246.
    This is not a bill to redeem from the Taylor mortgage. 18 Johnson’s Rep. 644; 1 J. C. Rep. 287.
    VI. The last mortgage of Mrs. Taylor of 12th Dec. 1846, has priority over Pugh’s lien. It' secures Mrs. Taylor’s debt, and the Corwines can rely upon it.
    
    It would be a fraud upon the Corwines to take from them the security, and let the debt remain.
   Avery, J.

From an examination of the whole case, there can be but little room for doubt, that the defendants were entitled, at some stage of the proceedings, to have this bill dismissed. The principal questions to be settled under the bill and answers must, _ it is evident, have come up for decision under the bill first filed and still pending in the superior court. The article of sale or mortgage on which this is founded, constituted a prominent document, in the first— upon this the action of the court was sought, and its binding obligation controverted by Brown. The depositions taken in the first ease, and the various exhibits there introduced, touching the interest of the Corwines, of Mrs. Taylor, and of Davis and Brown, in the printing establishment, and their connection with it, were the appropriate evidence to establish the same interest and connection in the second. The rights of the parties were so essentially before the court in the first suit, that there seems to us a manifest impropriety in commencing the second, during its pendency, although in the meantime some of the notes had fallen due.

There are three courts of concurrent jurisdiction holding their terms in Cincinnati. The suitor both at law and in equity, may proceed at his option in either of them. But he cannot try his chances in them all, and thus accomplish his object, if he can defeat his adversary in either. From their decrees, when sitting as courts of equity, it is true, an appeal may in all cases be taken to the supreme court. But in this way it may happen .that different bills will come up and be pending in the same court, between the same parties, to settle •one matter in controversy.

We are of the opinion that after one court of chancery has obtained rightful jurisdiction over a subject, another court of chancery, of only equal authority, should not assert jurisdiction over the same matter; but whenever the fact is shown by competent evidence, should dismiss the bill. The commercial court had sufficient cause on the ground here considered, to dismiss this bill; and the cause for dismissal is not removed by the appeal. The controversy between these parties upon the merits we do not decide.

The bill is dismissed.  