Payne v. Harrell

40 Miss. 498

• Court: Mississippi Supreme Court
• Decided: April 15, 1866
• Status: Published

Opinion

Ellett, J.,

delivered the opinion of the court.

The only question in this case is, whether the vendor of real estate can file a bill in chancery to enforce his- equitable lien for the purchase-money, without having first sued, and exhausted his remedies at law.

There can be no doubt on this subject. The right to sue at law upon the securities given, and in equity, to enforce the vendor’s lien, are distinct and independent rights, and the party can pursue either or both remedies, at his discretion. The precise point made in this case has been adjudged in Kentucky in favor of the right to sue. 3 J. J. Marshall, 558, Black v. Hunter; 5 J. J. Marshall, 323, Richardson v. Baker.

The general rule is, that a party will not be allowed to sue at law and in equity at the same time, for the same debt. But this rule only applies to cases where the demand at law and in equity are equally personal; and not where the one remedy is in rem, and the other in personam, as in cases of debts secured by mortgage or pledge. Miller v. Helm, 2 S. & M. 697; Jones v. Conde, 6 John. Ch. R. 77, and cases there cited; Miller v. Trustees of Jefferson College, 5 S. & M. 662.

The decree disallowing tlie demurrer to the bill will be affirmed, and the cause remanded, with leave to answer the bill within sixty days from this date.