Markham vs. Huff

Jackson, Chief Justice,

dissenting.

I dissent from the judgment of the majority of the court, affirming the judgment of the superior court, because the case is res ad judicata adversely to that judgment. It is due to the court below to say that the point making it res ad judicata had not been, adjudicated when the demurrer to the present bill was overruled by that court; but after that court had decided on the bill now before us, a bill precisely like this, between the same parties, was dismissed by the superior court of Fulton county, and that judgment of dismissal was affirmed by this court on demurrer thereto, on the ground that there was no equity in it. If there was no equity in this case when brought here from Fulton, there certainly can be none in it when brought here from Bibb.

If Fulton superior court had judication, its judgment affirmed by this court concludes the parties. That Fulton superior court did have jurisdiction is indisputable, because Markham, the defendant to the bill, and the only defendant to it, resides in Fulton. Therefore, if the bill now before us from Bibb be the same bill which was before us from Fulton last term, Huff is concluded by the judgment in Fulton superior court affirmed here last term.

Is it the same bill ? It is the identical bill now before us. It raises the same issues, invokes the same relief, and prays for the same damages. There is but one point of difference between the two, and that is that Markham sued Huff in Bibb superior court to foreclose a mortgage on real estate there, given to secure the rent of the hotel, and this bill now before us was filed to enjoin that foreclosure and for relief against Markham for failure on his part to comply with the terms of the lease, to the great damage of Huff; whereas in the case from Fulton, the mortgage on realty in Bibb was of course not involved. Bibb county acquired jurisdiction by reason of Markham’s suing Huff there, so far as to defend that suit, and to stay proceedings to foreclose, but not to give a decree for damages against Markham, unless strictly springing out of that ’ mortgage, the suit to foreclose which gave jurisdiction to the Bibb court.

So that, when it was decided that Huff had no equity against Markham to stop the collection of his rent overdue, by this court, in the case from Fulton, which county had full and complete jurisdiction, the effect of that decision is that he had no equity to stop the mortgage in Bibb, to collect the same rent—the equitable facts alleged in the two bills being precisely the same.

The judgment from which I dissent reaches the remarkable result that a court having only partial jurisdiction of the person of the defendant, to-wit, to grant complainant relief, stopping the mortgage process until certain equities could be adjusted, can overrule a decision in another court, between the same parties, which had complete jurisdiction of the whole case for all equitable purposes; and thus the less jurisdiction would possess not only greater powers, but powers unheard of before in any court, of reversing a judgment between.the same parties on the same allegations of equity.

It is vain to reply that, in the case when here from Fulton, the landlord was pursuing his statutory rights to eject the tenant for non-payment of rents, whereas in Bibb he was enforcing a lien to secure those rents. No substantial distinction exists between the two remedies, so far as equitable rights to stop the landlord are concerned. If he has such rights, not springing out of the mortgage alone, but out of ■ the lease, equity would interpose as soon to suspend the collection of the rent notes by the ordinary mode as by their collection by the foreclosure of the mortgage. If the tenant had no equity to deny payment of the notes he gave for the lease of the hotel, it is very hard to find an equity he would have to deny payment of the same notes secured by mortgage, unless that equity sprang directly out of the mortgage, independently of the lease, of which there is no pretense. The very same equity which the tenant set up against the notes, to-wit, the damages done him by the landlord’s breach of the covenants of the lease, is the equity, and the only equity, which he now sets up against the mortgage.

But to make assurance doubly sure, it is expressly stipulated in the lease itself that the taking the mortgage, with all the rights and remedies therein given, shall not, in the slightest degree, affect the rights and remedies of the landlord. So that, whatever right he had to collect the notes by the proceeding under the statute, over any so-called equities which Jtiuff might set up), Markham reserved the same in respect to the collection of the mortgage. The original lease was made to Brown & Huff, and Huff bought out Brown, and to get Markham’s assent thereto, and to make him as secure as if Brown had remained one of the lessees, Huff gave the mortgage sued in Bibb superior court. Therein are these words: “ It is distinctly understood and agreed that the taking of this mortgage by said Markham shall in no way affect the right of said Markham as against said Huff under said original contract, and said Markham may use all the remedies for the enforcement of said contract given to landlords under the law of said.state in case said contract is not complied with,’’ etc.

Yet, in the teeth of this agreement, of this solemn covenant, it is held by the majority of this court that a judgment affecting Markham’s rights to the extent of allowing Huff equities, which, outside of the taking the mortgage, this court unanimously held, when the case was here from Fulton, Huff did not have, and enjoining Markham from prosecuting in Ms own county, where the property leased lay, “ all the remedies for the enforcement of said contract given to landlords under the law,” be affirmed; and in so deciding, in my j udgment, with great deference and respect to theirs, I must say it has not only reversed what a unanimous court between the same parties declared to bo the law of the case here made at the very last term, but has annulled the agreement and covenant between the parties; and all this has been done, too, in violation of the spirit of the constitution, which gives to all men the right of trial in equity cases, if relief be substantially prayed against them, in their own counties. The effect of the decision is to transfer the whole case from Fulton, the residence of the defendant, to Bibb county, the residence of the complainant, contrary to the law and the constitution, as I interpret them.

Therefore, I put this dissent on record.

71 Ga., 555.

Blandeord, Justice.

1, 2, 3. Where the remedy at law is not as full, cómprete and adequate as it is in equity, this will not deprive equity of jurisdiction, although there may exist a common law remedy. Code, §3095. See 35 Ga., 261 ; Id., 216; 16 Id., 66 ; 36 Id., 545 ; 8 Id., 459. These cases fully sustain and illustrate the principle stated.

Looking at the facts of this case, plaintiff in error has foreclosed a mortgage in Bibb superior court upon the property of defendant, wherein he claims divers sums of money of defendant for breaches of the covenants contained in the lease of the Markham House; defendant denies these breaches, and contends that he is not indebted to the plaintiff anything, but that, on the contrary,plaintiff is indebted to him a large sum of money on account of his failure to keep his covenants in said lease. The fore•closure of the mortgage by the plaintiff and the bill filed bythe defendant embrace all matters between the parties .growing out of this lease, so that it appears to us that the remedy is more full and adequate in equity than at law. Equity seeks always to do complete justice ; hence, having the parties before the court rightfully, it will proceed to give full relief to all parties in reference to the subject-matter of the suit, provided the courts have jurisdiction for that purpose. Code, §3085.

4. The plaintiff in error having sought to foreclose his mortgage against defendant in error in the superior court •of Bibb county, in which he claimed divers sums for a breach of the covenants contained in the lease, thus having to some extent gone out of the statutory remedies provided for landlords in the collection of rents against their tenants, the whole subject-matter of the lease, the covenants of the parties thereto and the breaches thereof are before that court, and the same cannot be inquired into and disposed of at law as well as in a court of equity.

The superior court of Bibb county, as a court of equity, has jurisdiction to hear and determine all such matters between the parties in this case, and for the purpose of doing full and complete justice, that court has jurisdiction to enjoin any actions or suits between said parties growing out of said lease. Without this power, the court could not do full and complete justice between the parties.

The plaintiff in error having appealed to the superior court of Bibb county and submitted to its jurisdiction in seeking to foreclose his mortgage against the defendant, will have also to submit to the equitable jurisdiction of that court when invoked by his adversary, when it is shown that this exercise of jurisdiction is necessary to afford an adequate, full and complete remedy, and the same is necessary to do complete justice between the parties in this case, and that court will proceed to give full relief to the parties in reference to all matters growing out of said mortgage, the subject of the suit, and settle by one decree the numerous issues between the parties growing out of the lease.

Wlien a person goes out of the county of his residence, and seeks relief at law against another in the county of the latter’s residence, in such case, when it may become necessary, according to the principles of equity, to adjust the matters in controversy between the parties to said action at law, at the instance of the defendant, the superior court having jurisdiction of said action at law, may, as a court of equity, entertain a bill, and may decree and grant full and complete relief to the parties before it, and has jurisdiction to grant relief against the plaintiff in the action at law, although he may not reside in the county where such bill is filed, his conduct in appealing to said courtis equivalent to consenting to the jurisdiction of the same, as to all matters growing out of said action at law.

In this case, there is equity in the bill of defendant in error, and the superior court of Bibb county, as a court of equity, has jurisdiction of the same, and the decree of the court overruling the demurrer of the plaintiff in error and sustaining the bill is hereby affirmed.

FTat,t,; Justice,

concurred specially, but furnished no written opinion. He based his concurrence on the special facts of this case.