
    Thomas Rodgers v. Nancy Jones, Administratrix of Charles Jones deceased.
    1826.
    
      Columbia.
    
    The bill in this case stated, that on the 18th of June 1813 the complainant, together with Charles Jones deceased and Samuel Rodgers, purchased a tract of land from Letty Rodgers, the mother of the complainant, for which they were to give her .$600, and build a house for her to live in, and furnish her a comfortable maintenance 7 _ , and support for herself during her life, and for her daughters, Letty, Elizabeth, Polly and Sally, (their minor sisters) until they married : for the performance of which the complainant and the said Charles and Samuel entered into a bond, under the penalty of ‡ 12,000. In pursuance of said contract, the purchasers aforesaid built a house and furnished the said Letty and family until the 19th of November 1816; when the complainant and the said Charles and Samuel wishing to get rid of their liability on the bond, made an agreement that the land should be put up for sale between them,' and that whichever of them made the highest bid should take the land, and release the other-two from the bond entered' into by them jointly for the support of the said Letty and children ; which agreement was entered into in writing, and lodged with the said Charles. The land was accordingly sold, and Charles became the purchaser,' to whom the complainant and the said Samuel executed titles. But the said Letty, not being willing to rely on the said Charles alone for support, refused to release the complainant and the said Samuel from their bond. Whereupon the said Charles executed a mortgage of a tract of land containing 126 acres, conditioned that the said Charles should save harmless the said complainant ancj Samuel from any loss or injury. from the bond held against them by the said Letty for support, &c. as appeared from the mortgage exhibited.
    
      All mortgages ciosedin °re ”of'Its - ing given to performance a covenant does not vary the rule,
    
      The bill further stated that at the time of entering into the last contract, the said Charles was unprepared to furnish the support necessary for the said family, and the complainant thought it incumbent on him to continue the support which was required until the said Charles was able to do so himself, relying on the mortgage for indemnity, together with the repeated declarations of the said Charles, that he would soon be able to take charge of the family, and repay, complainant for what he had furnished and would furnish on his account. But the said CKarles still neglecting so to do) the complainant was compelled to continue the support or lay himself liable to be sued on the bond, as well as to the just censure of his friends and acquaintances for neglecting to furnish his mother and minor sisters with the sustenance they held his obligation to supply. Under these considerations, he supported the said Letty from the 9th of November 1816 to the 11th oí February 1817, when she died; Polly from the same time to the 11th of March 1818, and Sally to the 27th Of March 1821, (at which times they respectively married) at the rate of four dollars per month for each.
    The bill, further stated that on the-day of-the said Charles died intestate; and that the said Nancy, the defendant, administered. The complainant further stated that his family was large; and that he had but slender means to support them; and that this additional family falling on his hands had occasioned him to sustain much more loss than the charge he had made would compensate; but for a variety of reasons he only wished to charge the estate of the said Charles with what would reimburse him his actual expenditures. He therefore prayed that the mortgaged land be sold, and the amount to which the Court might think him entitled paid from the proceeds thereof.
    The answer of the said Nancy, the defendant, admitted the contract as stated in the bill; that her intestate purchased the interest of the complainant and the said Samuel, and thereupon was bound to support the said Letty and family, as stated; that he gave a mortgage as security, as stated, to keep harmless the complainant and the said Samuel from loss or injury, from the bond mentioned in the bill. But she denied that the complainant supported the said Letty and family, as stated; that her intestate complied with the conditions stated in the mortgage, by giving support and maintenance to Letty and family, from the time stipulated, until their respective death and intermarriages. The defendant also submitted, whether the complainant could support his bill alone; that the said Samuel should have been made a party, and claimed the same benefit as if he had demurred to the bill. She also contended, that she was protected by .the statute of limitations, and relied on the same as if specially pleaded. She also stated, that the mortgaged land had been sold by the sheriff, to. satisfy judgment debts against her intestate; and that the purchaser thereof, and not she, should have been’the party proceeded against.
    Upon the reading of the bill and answer, Chancellor Thompson dismissed the bill for want of jurisdiction, at the costs of complainant; saying, that the proper remedy was at law.
    
      Dunlap, for the complainant,
    appealed, and contended that the bill presented a case properly within the jurisdiction of the Court of Equity; and the defendant by answering admitted the jurisdiction, after which the Court should have sustained it: and also, that the Court should have ordered a reference to settle the matters of account.
    
      Irby, contra,
    argued that the Court of Chancery in this state had not jurisdiction to foreclose mortgages. That by the act of 1791 that Court is expressly prohibited from entertaining jurisdiction of cases where plain and adequate remedy could be obtained at law. By the act of 1791, 1 Faust. 64, the Law Courts are authorized to foreclose mortgages. The complainant had nothing to do but to sue on the bond at law, and after judgment was obtained to state by suggestion, that there was a mortgage, and thereupon the Court at Law would order a sale of the mortgaged premises. That the law proceedings, under the act, gave plain and adequate remedy, and ousted the Court of Chancery of the jurisdiction they formerly had of foreclosing mortgages. The jury alone could properly assess the damages under this covenant, for how could the Commissioner assess damages. With-outobjecting to the jurisdiction generally, this case could only be properly tried at law, as the damages for breach of covenant could only be assessed by a jury.
    
      O’Neatt, in reply,
    said, that the jurisdictions were concurrent. The remedy in most cases was much plainer and more adequate in equity. An account was necessary to be taken, to ascertain the correct amount due under the mortgage; and all matters of account could be better settled before the Commissioner than before a jury. Granting concurrent jurisdiction to one Court never takes it away from another by implication. This Court can not be deprived of jurisdiction, so well settled and so ancient, except by an express act of the legislature. This is not a case differing from most cases of mortgages. There is nothing more than an account to be taken, which could be best done before the master. It was not a case of damages to be assessed by a jury.
   Cukia, per

Johnson, J.

The jurisdiction in the cases of mortgage is so clearly of equitable cognizance, that none will be disposed to question it. Indeed, its antiquity is of such remote date, that the most learned have not been able to trace it to its origin; and must, from necessity, have existed from the time that redemption, and consequently the right to foreclose the equity of redemption, was first allowed; nor has the power of the Court over the subject generally been questioned in the arguments' urged in opposition to this motion. But it has been contended, that the questions, “Whether the defendant’s intestate had or had not broken his covenant with the complainant, and whether he had sustained any, and what amount of, damages, are matters only cognizable in a Court of Law: and that these matters ought first to be disposed of in that tribunal, before the complainant is entitled to come into a Court of Equity for relief.

A numerous class of cases, which belong to the Equity jurisdiction, are those where the party, on account of the organization or defects in the process of the Courts of Law, cannot obtain a complete and adequate remedy in that Court; and on this principle alone Equity would retain this cause; because, although a Court of Law might be competent to try the questions of fact,'involved as they are, it is, except in a particular instance, provided for by statute, incompetent to foreclose the equity of redemption, so that the remedy would be incomplete.

If we divest the Courts of Equity of jurisdiction in all cases where it becomes necessary to decide on facts, there would be none left for them to determine; for it is a rare case in which they are not involved in some shape or other. It is clear, therefore, that when the Court has jurisdiction over the subject, it must of necessity decide facts that are incident to it,.or direct an issue at law when they are so doubtful and complicated as to render that mode necessary. And the case of Jacomb v. Harwood, 2 Ves. Sen. 268, is referred to as directly applicable to this case. There are, however, cases in which the jurisdiction of the Court arises out of an incident : as for example, where a discovery is the foundation of the bill as an incident to some other matter: and then it would be necessary, as preliminary to the question of jurisdiction, to pronounce first on the incident. And the misapplication of this principle has probably laid the foundation of the arguments opposed to this motion. I have looked into this case with some attention, with a view to discover some circumstance, if any existed, which would distinguish it from an ordinary mortgage to. secure the payment of money, but I have not been able to detect the slightest. In the case of the money mortgage, over which all agree the Court has jurisdiction, the allegation of the complainant is, that the defendant has broken his covenant by the nonpayment of the money. And hence may arise all the questions of fact incident to the execution of the bond, the legality of the consideration, the extent of credits, and all the multifarious matters growing out of such a contract. In the case under consideration, the allegation, as in the former, is, that the defendant’s intestate has broken his covenant, which the answer controverts. And there can be no reason why the Court is not competent to try that question, or to direct an issue at law, as in the case supposed. The motion is therefore granted, and the case is ordered back to the Circuit Court for trial.

Leave will be granted in the Court of Appeals to amend if it is there found necessary.

The objection urged in the answer, that Samuel Rodgers was not made a party,- is without foundation. The complainant exhibits no cause of complaint against him, and, so far as appears to the Court, he has suffered no wrong. There can then be no ground for involving him in a litigation when there exists no legal necessity, and from which no fruits could be derived. If, however, the land has been sold, as stated by the answer, and the purchaser is in possession, it would per- • 1 * 1 naps be advisable to make him a party, as he will not otherwise be concluded by the decree of the Court: and the complainant has leave to amend his bill, so as - make him a party, if a state of facts does in truth exista which renders it necessary.

A ^ t0 fore. cl°se ^ort-gaged lands will not con-chase^ofsuch "'ho , was not made, party to the foreclosure.

Decree reversed..  