Wight v. Downing

Mr. Presiding Justice Sears delivered the opinion of the 'court. The only questions presented upon this appeal relate to the order of the court below, sustaining appellee’s demurrer to the second amended cross-bill of appellants. We are of opinion that the demurrer was properly sustained. The matters set up by the cross-bill as ground for relief as against Frank H. Collier, Esq., are new and distinct matters, in no way germane to the subject-matter of the original bill of complaint. Therefore they are not such matters as could support a cross-bill. Thompson v. Shoemaker, 68 Ill. 256; Lund v. S. E. Bank, 96 Ill. 181. The remaining matters set up by this cross-bill are purely matters of defense to the original bill of complaint, and available, if at ail, under the answer. Therefore they could not support a cross-bill. Morgan v. Smith, 11 Ill. 194; Newberry v. Blatchford, 106 Ill. 584. But, irrespective of the manner of pleading them, the facts set up by answer and by cross-bill are wholly insufficient, either to constitute a defense to the original bill of complaint or to entitle cross-complainants to .any affirmative relief. No facts are averred which would constitute an extinguishment of the mortgage debt, and no rights of. appellants set forth which would entitle them to affirmative equitable relief in respect to the property in question. The decree is affirmed.