Priddy v. Hartsook

• Decision Date: 08 October 1885
• Court: Virginia Supreme Court
• Parties: PRIDDY & TAYLOR v. HARTSOOK.

81 Va. 67

PRIDDY & TAYLOR v. HARTSOOK.

Supreme Court of Appeals of Virginia.

October 8, 1885

Error to judgment of circuit court of Albemarle county, rendered 27th May, 1884, in an action of assumpsit, wherein Priddy & Taylor are plaintiffs, and Elizabeth H. Hartsook is defendant, requiring plaintiffs by the next term to elect whether they will prosecute this action, or the chancery suit wherein they filed their bill, in said court at April rules 1884, for the same matter involved in this action. From this judgment the plaintiffs obtained a writ of error and supersedeas from one of the judges of this court.

Opinion states the case.

Clay & Tucker, for the plaintiffs in error.

Duke & Duke and T. S. Martin, for the defendant in error.

OPINION

HINTON J.

The record in this case shows that in December, 1883, the plaintiffs in error, being creditors of the defendant in error, brought a suit at law in the circuit court of the county of Albemarle to recover a judgment for $783.11, the amount of their debt. At February term of the court in 1884, the defendant filed the plea of non assumpsit, but no other plea, and the case went over without trial to the May term. At April rules, 1884, the plaintiffs in error filed a bill in equity in behalf of themselves and other lien creditors, to enforce the provisions of a deed of trust by which the defendant had assigned certain property to a trustee to secure the payment of debts due to various persons, amongst whom were the plaintiffs, whose debt was expressly admitted to be due. The property conveyed by this deed consisted of " all the dower property" " derived and to be derived from the estate of her deceased husband; also her interest in her homestead in her husband's estate and her own property claimed in homestead deed. The deed gives to the trustee very wide powers, not necessary to be enumerated, however, and directs him " after reserving one-half," or less, if that much is not needed, " for the support of the grantor out of the proceeds of this property as it may be collected by him, to apply the balance to the payment of the creditors named.

No answer had ever been filed to this bill, and at May term of the court the cause was still at rules. But when the action at law came up for trial, the defendant made a motion in the common law case that the plaintiffs be put to their election between the two suits, and the court so ordered. And thereupon the plaintiffs applied for and obtained a writ of error and supersedeas from one of the judges of this court.

Now it is unquestionably " settled," as stated by Chancellor Kent in Jones v. Conde, that a mortgagee may sue, at the same time, at law upon his bond, and in equity upon his mortgage. The case of a mortgagee forms an exception to the general rule, that a party shall not be allowed to sue at law and in equity at the same time for the same debt. " The one remedy is in rem and the other in personam; and the general rule to which this case is an exception applies only to cases where the demands at law...