Hurd v. Case

Mr. Chief Justice Caton delivered the opinion of the Court: Case held a mortgage on the premises in question, containing a power of sale. Junior to this, Hurd and Tracy held a trust deed or mortgage. Case filed a bill to foreclose his mortgage, m airing Hurd and Tracy defendants, as subsequent incumbrancers. Pending this suit, Case advertised and sold the property under the power of sale contained in his mortgage and Otis became the purchaser. A few days after the sale, and while the original bill was still pending, Hurd and Tracy filed their answer, admitting Case’s mortgage and that it was not fully paid, and they also filed a cross-bill, setting forth the facts as stated, asking for a discovery of the amount due upon Case’s mortgage, making Otis a party, thereby asking that the sale to him be set aside, and that they be permitted to redeem, and that the Case mortgage be assigned to them upon their paying the amount due thereon. To this cross-bill a demurrer was sustained, and the complainants in the original suit permitted to dismiss that bill, upon which the case is brought here for review. If this cross-bill was properly filed, there can be no doubt that the complainants in it were entitled to the relief sought. The pendency of that suit was notice to Otis, the purchaser, so as to subordinate the rights he acquired by the purchase, to any decree which might be made in that suit. We have often said that such sales must he held subject to the strictest scrutiny, and will be set aside for any appearance of unfairness. The very fact of putting the subsequent incumbrancers to defend a bill to foreclose the mortgage, tended to lull them to security against any proceeding to sell the premises under the power of sale contained in the mortgage. We cannot sanction a practice fraught with such danger to unsuspecting parties, however innocent may have been the design in this particular case. Two objections are urged to the cross-bill. First, that it introduces new matter not germane to the matter of the original bill, and second, that it makes Otis a defendant, who was not a party to the original bill. A cross-bill must, no doubt, be confined to the subject matter of the original bill. A subject matter of litigation, foreign to the subject matter of the original bill, must not be admitted Into a cross-bill. Here the' subject matter of the original bill was this mortgage, to foreclose which.it was filed. If the subject matter of the cross-bill were the specific performance of a contract for the sale of other lands, it would have no connection with the subject matter of the original bill. Being foreign to such subject matter, it would not be a proper subject of litigation for a cross-bill. Here, the subject matter of the cross-bill is the same as in the original bill, it only goes farther and states additional facts in relation to that subject matter, which shows that the complainants in the cross-bill are entitled to affirmative relief. Such is the legitimate object of a cross-bill. When a defendant is entitled to affirmative relief in respect to the subject matter of the original suit, he can only obtain it by means of a cross-bill, and it is very rare that all the facts which would entitle the defendant to such affirmative relief appears in the original bill, but almost invariably they have to be stated for the first time in the cross-bill, and the only limitation as to such new averments is that they must grow out of, and be connected with, the subject matter of the original bill. Here they are not foreign to it, but directly connected with the original matter. Indeed, a more appropriate case for a cross-bill could hardly be imagined. hior is it an objection that Otis was made a defendant in the cross-bill. If a precedent were wanting for bringing in new parties in the cross-bill, one is found in Jones v. Smith, 14 Ill. 229. By his purchase, pendente Ute, he became an indispensable party to the cross-bill, in view of the relief which was sought. If this necessity does not often exist, in that case and in this, we find it may exist, when, necessarily, the practice must be admitted. The decrees dismissing the original bill and sustaining the demurrer to and dismissing the cross-bill, are reversed, and the suit remanded. Decree reversed.