
    HOUSTON & GILLESPIE VS. SADLER, et al.
    1. Where proceedings, to try the right to property levied on un? der an execution, are pending, and the plaintiff files a bill in Chancery, to subject such property, as trust estate, to the payment of the same debt; he can not he.forced to elect which remedy he wilj pursue, until he has had the benefit of the defendant’s answer.
    On the Mth day of September, 1830, the plainliff in error filed a bill in Chancery, against ihe defendants, in Morgan Circuit. Court. The bill staled, that, on the 23d day of January, 1826, ihe plaintiffs became the assignees, for valuable consideration of .a promissory note, executed by the defendants, Isaac .arid Mary Sadler, to one Anne P. Rossel. That, the purchase of the note had been induced from the fact, that the note was given for the purchase of real estate; and because signed by the said Isaac and Mary, who had entered, previously, into a marriage contract — whereby considerable property had been conveyed in trust, to one Wallace, for the use and benefit of the said Mary. That the said land was subsequently sold, under the said deed, by the trustee, for the benefit of said Isaac and Mary, and at their request. That the complainants frequently applied to said defendants, for payment, of the said note, Who promised it should be discharged. That, on the failure tp do so, the complainants prosecuted suit against the defendants, and recovered judgment against Isaac Sadler, on the note. That several executions had issued on the said judgment; but, in consequence of the insolvency of Sadler, except as to the' trust property, the said executions were ineffectual. That, subsequently, the complainants being informed that a certain horse, (worth only one fourth part of the complainants’ claim,) had been received, in part payment for llie said land, so sold under the' trust deed, they procured a levy of execution upon it. That, before the sale of the horse, Wallis, the' trustee, preferred a claim to it, the trial of which was then pending. The complainants, therefore, prayed the interference of the Chancellor, in subjecting the trust property to the payment of thm judgment.
    After subpoena, executed upon Isaac and Mary Sadler, and Wallis, the Irustee, and before answers, the Chancellor rendered a decree, ordering, that the complainants elect, whether they would pursue the Chancery suit.; or continue the proceedings to try the right, under the claim at law.
    The complainants having, under the order of the Chancellor, elected to proceed at law, and dismissed their bill — took a writ of error, and brought the case’ into this Court, for revision.
    
      Thornton, for the plaintiff in error,
    contended that the only question was, whether the Court below should have compelled the complainants to dismiss the’ bill, or, in other words, have compelled them to elect between'this cause and a common law case, which was a trial of the right of property, upon a claim of the property by Wallis. There was no such case presented to the Court below, as to require the application of the doctrine of election of causes. Isaac Sadler, against whom a judgment at law bad been obtained on the bond signed by him ^nd his wife, Mary Sadler, was clearly liable to suit as a co-obligor; and of course execution was proper of his goods and chattels. After a levy of said execution upon a horse, as bis property, Wallis claimed the property, as being the trust fund created by a marriage contract between Isaac and Mary, of which he was trustee. Whilst that trial of the right of property was pending and undetermined, Houston & Gillespie, knowing that their debt was a just charge, as well upon the trust fund as upon Isaac individually ; and knowing too, that even if the claim of ibe trustee should fail, that the property levied on, would be insufficient to satisfy their judgment, filed the bill dismissed, against Isaac, Mary, his wife, and Wallis, the trustee, to subject the trust fund to the payment, of the said debt. Now surely they had a right to pursue the trust fund, by bill in chancery, if the facts set forth in the bill, were true, as well as to pursue Isaac individually,.on the same claim. There could have been botone satisfaction, it is true, but evidently they could pursue the different parties, who may be liable, at the same time, especially as they could not be united in one suit at Jaw, The Court below, in imposing ah election, must have undertaken to determine, that the property levied on and claimed by Wallis, was the trust property, and not Isaac’s ; for if it was Isaac’s, - the complainants had a right- to levy ¡1, and also to pursue at. the same time tlu; oilier source of s_if isihv-tion m the trust fond. — ■ In no point of view ought the plaintiffs in error to bnve'beeu driven to the alternative of abandoning one or the other of these suits. The parlies in the two suits were different', and the questions to be decided were different. In the trial of the right of property, the question of the liability of the trust property to pay the debt, could notarise, which was the main point to be contested in the chancery suit. The only question in the common law case was, whether the horse was, or was not I. Sadler’s ; whereas the bill in chancery sought to subject the trust property to the satisfaction of the claim. The decision of the trial of the right of property in favor of the complainants (i. e. of plaintiffs) would have resulted in only a partial satisfaction of the execution; and the chaucety suit would still have been necessary. If it had been decided against them, the necessity of the chancery suit would have been indispensable.' The only sensible ground upon which a party should be driven to an election, is, that he is harrassing a defendant with two suits, for the determination of the same right — lliis was any thing else, than such a case. But in truth there was no suit pending at common law, and so no ground for the order to elect. The claim to tho property by which the execution against Sadler was suspended, is not such a suit as must, exist to justify the order to elect. It is in truth instituted by the claimant: all that the plaintiff in execution can do towards arresting if, is.to consent to the withdrawal of the claim, which he ought not to be forced to do, until his judgment is t'i!lier satisfied or reversed. This bill was dismissed without. considering its merits, upon an application of a principle whirl) does not arise (rom tl.estate of litigation between the parties, and the chancery cause should be reinstated for full investigation, even upon that ground, if not for the other reasons. There is one reason which is conclusive against the order to elect in this caso, viz: the defendants., have not answered, and that answer must first he file!— see 3 P. Wmc ÜJ; L Vo-ís/ & Bn n< 330 ; 4- John. C. R. 84 — llogrrs vs. Vudmry Coop. PL 275 — Against the order ioulismiss the bill, see 3 John. Cb. R 227.
    
    
      Hucliison, contra,
    
    insisted — that the Chancellor was compelled to decree an election, because, it was apparent, that the'proceedings pending at law, were in reference to'part of the trust property. 'The complainants, aware that their remedy would be more complete in Chancery, filed their nill ; but, In doing so, still retained their chance .at- law.
    Now, a decree, if awarde 1 by the Chancellor, in favor of the complainants, must have subjected the trust, property : and how could that subjection be made, while part of it was under levy at Jaw, and a trial of a claim to it, by the trustee, yet 'pending. It. was no case of concurrent jurisdiction, because, each remedy, if perfected, would have been complete, of itself, without, the aid, so far as the trust properly was concerned, of the other Court.
    If the claim of the trustee, upon that part of the trust property, levied on by execution at law, was il legal, then it was illegal, as to all: and the execution might well have been levied upon all.— 1 Ves. ir. 91 ; 3 Ves. & Bea. 9; 19 Yes., ir. 277 : 4 Hen, & Munf. 415.
    As respects the answer, no benefit could have accrued to the complainants, from it, and, therefore, it it was not essential. — 4 Johns. Ch. R. 84. And, if necessary, it was waived below.
   Lipscomb, C. J.

In this case, the complainants had recovered a judgment at law, against Isaac Sad-ler, for about three hundred dollars, on a promissory note, given by him and his wife, Mary Sadler, to Anne P, Rossel, *iid by her indorsed to the complainants. An execution was sued out, and levied on a horse, which was claimed by Wallis, as trustee, for the benefit of Mary Sadler; and an issue was made up to try the right of property. Pending the issue, the complainants filed 'heir bill in Chancery, setting out, that a marriage contract had been entered into between Sadler and his wife, and Wallis constituted trustee, to whom certain property, belonging to Mary Sadler, the wife, bud been conveyed, in trust, for her use.

The bill slates, that the note, on which the judgment. at law was recovered, was given in consideration of a tract, of laud, purchased by Sadler and his wife, and that the titles had been made to the trustee ; that, the land was aftewurds sold by Sadler and wife, and the trustee, Wallis; and that the horse, levied on, was received in pari payment. It recites, -from the marriage.contract, a schedule of the property conveyed in trust, to Wallis. The bill seeks to subject the trust property to the payment of the complainants’ debt.; but it does not seek to charge the horse, as a part of the trust, property. It, however, alleges, that, if the house should he found subject. to their execution, it will not satisfy more than one-fourth thereof.

The Chancellor, on motion, before the answer was filed, ordered the complainants to make their election, whether to proceed with their suit in Chancery. or to proscenio the trial of the issue, made up, to try the right of property, in the horse levied on.— The complainants, reserving exceptions to the order dismissed their bill. The correctness of the order, requiring the complainants to elect, is now brought up, for revision.

The complainants had a right to insist, that the horse was no part of the trust property, and was subject to their execution. If .this was the case, there would have been no impropriety in their running their execution against it, for satisfaction, as far as it would go; and, at the'same time, seeking to satisfy the balance, from the trust property.

The judge, in assuming that the horse was trust property, as he must, have done, and ordering them to elect, deprived them of the privilege of shewing, that it was the separate property of Sadler.

But if it is admitted, that the two proceedings were seeking to subject the same property to the satisfaction of one and the same debt. Yet, the complainants ought not to have been called on to elect, until after the coming in of the defendants’ answer.— The complainants were entitled to the benefit of all the information the answer could supply, in making their election.

This doctrine is expressly recognised, in Jones vs. The, Earl of Strafford, by the Lord Chancellor King, and the Chief Justice, Lord Raymond. So in Vezey & Beams, 350; and ,tbe same in 4 Johns. Ch. R. 84: and it is now believed to be well settled.

The decretal order of the Chancellor, dismissing the complainants’ bill, must be reversed, and the cause remanded, at the cost of the defendants. 
      
       3Pr.Wms
     