Latham v. McGinnis

Conger, J. We aré of opinion that the evidence supports the allegations of the bill, and shall only notice two of the objections relied upon by the defendants in error, viz: 1. “By the averments of the bill the three complainants had no joint or common right to the rent claimed, • and therefore there could be no decree in their favor.” 2. “A court of equity, on the facts averred, has no jurisdiction.” As to the first objection, it is sufficient to say, that it should have been raised by a demurrer to the bill. It is too late to do so after answer filed. The second objection,that there was an adequate remedy at law and for that reason equity would not assume jurisdiction, we do not think can be sustained. Prior to the passage of Sec. 14 of Chap. 80 of the Eevised Statutes in 1873, it is quite clear there would have been no adequate remedy at law for the collection of the rent in question by either Latham or Fernandes. The former could not distrain for the rent because he had sold the land, and no longer had any interest in it, and the latter could not do so because David McGinnis, the tenant of Latham, had never attorned to him, and, therefore, under such circumstances, the tenant being insolvent and the rent being in danger of being lost, equity assumed jurisdiction. It is not necessary to determine the question whether Sec. 14 of Chap. 80 gave Fernandes, the grantee, the same right of distress that his grantor, Latham, had, or not, because if the subject-matter of the suit at bar was a proper subject of equity jurisdiction prior to the passage of that section, it still remained so, even though now, under its provisions it should be held that Fernandes could proceed by distress so soon as he obtained the title, and without an attornment from the tenant. “ The rule is well recognized, that where equity has jurisdiction, and an act of the Legislature confers like jurisdiction on a court of law, it then becomes concurrent in two courts. Jurisdiction having once vested in a court of equity, it remains there until the Legislature shall abolish or limit its exercise ; as, without some positive act, the reasonable inference is, that it is the legislative pleasure that the jurisdiction shall remain upon its old foundations.” McNab v. Heald et al. 41 Ill. 330; Story’s Eq., Sec. 641. It was error to dismiss the bill, and the decree will be reversed and the cause remanded. JReversed and remanded.