Freeland v. South Penn Oil Co.

Opinion by Mk. Justice Fell, The finding by the court that there was no ground for de [64] daring the lease to Guffey and Queen, now held by the South Penn Oil Company, forfeited, is abundantly sustained by the testimony, and the part of the decree dismissing the bill was properly entered. It follows from this finding that the lease for the same land subsequently made to Fisher and assigned to the plaintiff is invalid. Our doubt has been whether that part of the decree which directs the surrender for cancellation of the Fisher lease can be sustained under the pleadings, there being no cross bill. The lessor, Elizabeth Johnson, and the Soutv Penn Oil Company, the assignee of the first lease, are joined as defendants, and it is averred in the bill that this lease was forfeited for nonpayment of rent, and is being used by the oil company “ vexatiously and injuriously against the plaintiff to throw a cloud or suspicion over his title and interest.” The answer of Elizabeth Johnson admits the alleged forfeiture and the improper use of the lease by the oil company, and she prays that the relief asked for by the plaintiff be granted. The answer of the South Penn Coal Company contains a specific denial of the averments of the bill upon which the alleged forfeiture is based, and the prayer thereof is to be hence dismissed with reasonable costs. The decree orders (1) the surrender for cancellation of the plaintiff’s lease; (2) the dismissal of the bill at the plaintiff’s cost. The decree cannot be sustained for the reason urged in its support, that the court having all the parties before it should dispose of every subject within the circle of contest and make such a decree binding on all as equity reqiüres. The established rule in chancery practice is that the defendant cannot have affirmative relief against the plaintiff, even in the subject-matter of the suit, except by cross bill. “ When a defendant seeks the aid of the court, for the purpose of enforcing his rights, he must file a cross bill; when he relies upon his rights, merely by way of defense to the relief sought against him, it is not necessary to do so: ” 2 Daniell’s Chancery PI. & Pr. 1550. There are some well-recognized exceptions to this rule, where a defendant may have a decree in his favor without a cross bill, as on a bill for specific performance where the defendant sets up in the answer and' proves an agreement different from the one sought to be enforced; on a bill for accounting, if a balance is found due the defendant; and on a bill for partition where the [65] defendant claims the same relief as is sought by the original bill. These and other exceptions are very clearly stated in 5 Ency. of Pl. & Pr. p. 634, and it is there said, citing McClaskey v. Barr, 48 Fed. Rep. 134, that the theory on which relief is granted the defendant without cross bill in these cases is that the court will entertain the original bill only on condition that the plaintiff consents to the same justice being rendered to the defendant that he asks for himself. This case must be considered as coming within the general rule that if the defendant relies on the equities of his case for anything beyond a defense, and seeks affirmative relief, he must file a cross bill, and that part of the decree which directs the delivery for cancellation of the lease held by the plaintiff must be set aside. As so modified the decree is affirmed at the cost of the appellant.