SECTION 4 CROSS-BILLS AND COUNTERCLAIMS WHITE v. WHITE. SUPREME COURT, ILLINOIS. 1882. 103 Illinois 438. MR. JUSTICE WALKER delivered the opinion of the Court: Plaintiffs in error exhibited their bill in the Perry circuit court, to correct and reform a deed to five acres of land conveyed by John White, Jr., the patentee, to his father, John White, Sr. He conveyed it to Samuel White, who died, leaving May White, his widow, and Eva White, his only child and heir. The bill alleges that John White, Jr., in conveying to his father, intended to convey five acres off the east side of the north-east quarter of the south-west quarter of section 6, township 4 south, range 4 west, in Perry county, but in drafting the deed a mistake was made, and it was described as being on the east side of that quarter section. The prayer of the bill was, that on a final hearing the deed from John White, Jr., to his father, be corrected according to the facts; that he be decreed and required to quitclaim the properly described lands; that the deed first made, so far as it applies to the south-east quarter of the south-west quarter of section 6, be for naught held, or that the error and mistake be corrected as the court may deem best, and for other and further relief. Defendant answered, admitting the mistake, but sets up another and different mistake, and that is, it was. intended that John White, Jr., should convey to his father only a life estate in the five acres intended to be conveyed. The evidence on the hearing strongly tended to support the answer. To this answer a replication was filed, and on the hearing the court decreed that the deed be annulled, avoided and forever held for naught, and that complainants pay the costs. Defendant having failed to file a cross-bill, it. is urged that it was manifest error to grant specific relief to defendant on the answer that under that state of the pleadings, according to the well recognized rules of practice, the court could do no more than dismiss the bill. According to the uniform practice of this and almost all courts of chancery, the court can never grant affirmative relief on the anTo obtain such relief the defendant has the power to, and he must, file a cross-bill praying for the relief sought. This is the rule announced in Tarleton v. Vietes, 1 Gilm. 470, Edwards v. Helm, 4 Scam. 143, McConnell v. Hodson, 2 Gilm. 640, Mason v. McGirr, 28 Ill. 322, and McCagg v. Heacock, 42 id. 153, and a long list of other cases in this court might be cited announcing the same rule. swer. It is so plain and elementary as to require the citation of no authority for its support, as it is familiar to the entire profession. In this there was clear and fatal error. Nor has defendant attempted to distinguish this case from those cited, except he claims the decree was in accordance with the prayer of the bill. This is undeniably a misconception. The prayer is for a correction of the deed by a further conveyance, so as to conform to the facts as charged in the bill. It asks to have that part of the deed which embraces a portion of the other forty acres of the quarter to which they make no claim, declared void, and nothing more. To hold the prayer asks the entire deed be declared void, would violate every rule of construction. It is said that the merits of the case require the affirmance of the decree, and to reverse it would be to enforce technicalities and to produce hardship. In the administration of justice some form must be observed, and there are rules of practice that must be observed, and the one under consideration is of that character. It is plain, simple, and easy of application, and when not observed by counsel, and it produces hardship, it is of his own procurement, and not that of the law, nor can it relieve against such omissions. This error must reverse the decree, and renders it unnecessary to discuss the other questions raised and discussed. The decree of the court below is reversed, and the cause remanded. Decree reversed.1 WEATHERSBEE v. AMERICAN FREEHOLD LAND UNITED STATES CIRCUIT COURT, DISTRICT OF SOUTH CAROLINA. 1896. 77 Federal 523. SIMONTON, Circuit Judge. This case comes up on demurrer to the cross bill. The original bill was filed to obtain foreclosure of a mortgage of real estate given to secure a note with interest coupons. In the answer the defendant set up, as a defense, usury in the loan, and added, by way of counterclaim, a demand for double the amount which complainants had received as interest from defendant, to which demand defendant laid claim under section 1391, Rev. St. S. C. A demurrer to the counterclaim was sustained, and leave was granted to defendant to file a cross bill. The cross bill sets up, in substance, the same matter. Complainants demur. The grounds of demurrer are, in substance, that the cross bill sets up a legal demand, and seeks, at the hands of the court, relief for which there is a plain, adequate, and complete remedy at law; and 1 See Story, Equity Pleadings (10th ed. 1892) §§ 391-391a. also that the relief demanded cannot be given, or the prayer entertained, until the defendant (complainant in the cross bill) offers to pay the sum admitted to be due. In equity a defendant can pray nothing in his answer except to be dismissed the court. If he has any relief to pray, he must do so by cross bill. The cross bill is not a new suit. It is merely auxiliary, a dependency upon, a part of, the original suit. It is brought in order to obtain full relief to all parties; and it is specially a mode of defense in the cause. Field v. Schieffelin, 7 Johns. Ch. 252. The defendant may rely on matters purely legal, provided they be connected with the matters of the bill, for his defense, and by his cross bill require the plaintiff to answer thereto. 2 Daniel, Ch. Prac. (Perkins' 3d Am. Ed.) 1650. This author, a recognized authority, at page 1653 says: "But a cross bill is considered a mode of defense or a proceeding to obtain a complete determination of a matter already in litigation in the court. The plaintiff in the cross bill is not, at least as against the plaintiff in the original bill, obliged to show any ground of equity to support the jurisdiction of the court." 1 But the subject-matter of the cross bill must be essentially connected with that of the original bill, and not extraneous thereto. The distinction is clearly shown by Judge Wallace in Lautz v. Gordon, 28 Fed. 264. If these principles are applied to the present case, it will appear that it comes within the rule permitting cross bills. The cause of action is based on certain promises in writing. The defense is usury. If this defense be sustained, necessarily there arises the right of the defendant under the South Carolina statute. It is inseparable from the original controversy, a part of it, dependent for its solution upon the same testimony and law. If the defendant cannot set up this right in this case, it then may happen that the defense of usury may be sustained, and a decree for a specific amount rendered against the defendant, with an existing right in him, by some new proceeding, to reduce this amount, a right necessarily resulting from the decision in the main case. But when equity takes jurisdiction it proceeds to administer full relief in every particular, and to close the whole litigation. There is another view to take of this matter, which leads to the same conclusion. The original bill proceeds upon a legal demand, and obtains the aid of the court because of the mortgage lien. But, before this lien can be enforced, the validity of, and the amount due upon, the legal demand (the notes in this case), are ascertained. The matters set up in the cross bill are directed to this issue. Virtually admitting the execution of the promises to pay, it denies their obligation according to their tenor by reason of the taint of usury, and insists that, under the provisions of the statute, the amount 1 See, accord, Lambert v. Lambert, 52 Me. 544 (1864). claimed is not due. And that issue should be determined before the mortgage lien is enforced. The second ground of demurrer is based on a misapprehension. The cross bill does not admit any balance due. It claims more than complete satisfaction under the statute. The demurrer is overruled. Let the defendant in the cross bill (complainant in the original bill) answer over.1 ROBY v. SOUTH PARK COMMISSIONERS. SUPREME COURT, ILLINOIS. 1912. 252 Illinois 575. [CHARLES W. COLEHOUR filed a bill in equity against the South Park Commissioners, Edward Roby, Carrie M. Colehour, and Azel F. Hatch, alleging that the complainant, Edward Roby and Carrie M. Colehour were the equitable owners of certain land, and seeking to quiet the title to that land as against a claim to part thereof and to riparian rights thereto by the South Park Commissioners, and to enjoin the Commissioners from obstructing an alleged right of way across adjoining park land. An amendment to the bill alleged that legal title to the land was in Hatch, and that he had contracted to convey it to the complainant. The answer of defendant Edward Roby admitted all the allegations of the bill except that regarding Hatch's title, and claimed ownership in equity of one-fourth of the land. Roby also filed a cross-bill which adopted all the allegations of the bill as amended except those with regard to Hatch's title, 'setting forth the facts relied upon by the complainant as ground for relief against the Commissioners, in greater detail. The cross-bill prayed for no specific relief but only for "such relief as might be agreeable to equity." The South Park. Commissioners demurred to the cross-bill and the demurrer was sustained. Thereafter there was a hearing on the original bill on the pleadings and evidence, and the original bill was dismissed on the merits. No appeals from the decree dismissing the original were perfected either by the complainant or by Roby, but Roby sued out a writ of error 2 to reverse the decree on the ground that the demurrer to his cross-bill was improperly sustained.] 3 1 Compare Galatian . Erwin, 1 Hopk. Ch. 48, 58-59 (N. Y. 1823) [aff'd. sub nom. Gallatian v. Cunningham, 8 Cow. 361 (N. Y. 1826)]. See Story Equity Pleadings (10th ed. 1892) § 631. Suppose that in a suit by a husband against his wife for the partition of property jointly owned by them, the wife files a cross-bill for permanent alimony. Should the cross-bill be entertained? Burke v. Burke, 208 Ala. 502 (1922). 2 Cf. Ch. XIX, § 6, infra. 3 The statement of facts is much condensed. MR. JUSTICE DUNN delivered the opinion of the court: The only error assigned is on the action of the court in sustaining the demurrer to the cross-bill and dismissing the cross-bill. The cause has been argued on the part of the plaintiff in error as if the cross-bill were an original bill and as if the only question to be determined were whether the cross-bill states such a case as entitles the complainant to some equitable relief. This is a misapprehension. The record shows that after the cross-bill was dismissed the cause was submitted for final hearing upon the original bill, (to which the plaintiff in error, having refused to join as complainant, was a defendant,) the answers and replications and the evidence, and upon a determination of the issues of fact as well as of law the court entered a decree dismissing the bill for want of equity. That bill, so far as any right to equitable relief is concerned, was substantially identical with the cross-bill. The allegations of the latter were made in some particulars with more fullness of detail, but in no material matter did they add anything of essential importance to the statements of the original bill. The cross-bill prayed for no relief not prayed for by the original bill, and, in fact, for no specific relief. Its prayer was merely a prayer for general equitable relief. The facts alleged showed no right to any other relief than that shown by the original bill. They showed nothing which could in any manner add to, change or qualify the relief to be given under the original bill. Under such circumstances the cross-bill was an unnecessary and improper encumbrance of the record, and the court might rightfully strike it from the files or sustain a demurrer to it. A cross-bill is a mode of defense. Where it is necessary for a defendant to have relief concerning the subject matter of the litigation different from that sought by the complainants, where it is necessary to the defense to obtain some discovery or where facts occurring subsequently to the filing of an answer are, material to the defense, a cross-bill is the proper method of bringing these matters to the attention of the court. It is only where complete justice can not be done on the original bill and answer that a cross-bill is proper. If the same matter is equally available by way of answer the cross-bill is unnecessary. In Newberry v. Blatchford, 106 Ill. 584, the Attorney General, who was a defendant, filed an answer substantially admitting the allegations of the bill and a cross-bill asking the same relief as the original bill. It was held that the cross-bill was filed in violation of the well established chancery practice. The court said (p. 599): "The cross-bill in this case was for no purpose the law permits such a bill to be used. No discovery was sought and no relief was asked that was not attainable, if at all, on his answer. This is stating no new rule of practice. It was decided by this court as long ago as in Morgan v. Smith, 11 Ill. 194, a defendant will not be permitted to file a cross-bill when his rights are fully disclosed in his answer in response to the allegations of the bill and might be fully |