Rees v. Smith (1 Ohio 124, 1823)

Opinion of the court by

Judge Burnet :

Two questions are presented in this case: 1. Has the court jurisdiction ? 2. Has the contract been, performed on the part of Rees, so as to entitle him to the relief prayed for?

As to the first inquiry, it is manifest that the subject matter of the contract comes properly within the province of a court of chancery. The defendant might have sustained a bill for specific performance, or to rescind ; and it is contended with some force, that this right *must be so far reciprocal as to authorize the vendor to sustain a bill where the covenants on his part have been substantially, though not literally, performed, and the party claiming a strict performance, is in the full and secure enjoyment of the thing contended for. A punctilious performance of the minutia of a contract, is not always required in equity, though the want of it may present a difficulty in a court of law. If the conditions have been substantially performed, and the benefits of the contract fully secured to the opposite party, equity has considered it sufficient. But in this case the defendant, by answering and putting the merits in issue, has submitted to the jurisdiction, and the court, at this stage of the proceedings, may go on and decide as the equity of the case may require. He has not only acquiesced, but has obtained a stay of proceedings till the fate of another bill should be known, to which he was a defendant, and by which he might lose a part of the premises purchased of the complainant. The existence of that suit, and the possibility of a recovery, were relied on as an important part of his defense. The court so considered it, and he was indulged with a delay. That suit has been decided in his favor, and now, for the first time, an exception is taken to the jurisdiction of this court. To indulge the defendant in this course, would seem to be trifling with justice. It has been repeatedly decided, that an objection to the jurisdiction of chancery comes too late, after a defendant has answered and contested the merits. If he do not demur to the relief, the court will detsree for the complainant on the hearing. Gilbert’s History and Practice of Chancery, 219. In the case of Ludlow v. Simond, 2 Now York Cases in Error, 56, this doctrine is asserted and supported, both by reason and precedent.

The twenty-sixth section of the act directing the mode