12 Mich. 94 | Mich. | 1863
These cases having been heard together, and it being claimed on the one hand, and denied on the other, that they are to be regarded as cross suits, and affected by the rules governing those, it becomes necessary, before referring to the peculiar form of the issues, to refer to such of the facts as may bear upon that portion of the controversy.
Porter Kibbee some years ago executed to William S. Driggs a bond for $5000, and an accompanying mortgage on certain property, which was incumbered by previous mortgages made by prior owners. This bond and mortgage were assigned by Griggs to Stephen C. Andrews, who, on the fifth of March, 1858, assigned them to his uncle James Andrews, to secure two notes for $2,100 each, payable respectively April 1, 1859, and April 1, 1860. In June, 1859, Stephen C. Andrews, who had retained the bond in his possession, sued Porter Kibbee upon it, in the name of Driggs for the use of said Stephen, and obtained judgment upon it September 12, 1859, and upon that judg_ ment, after the return of an execution, filed a creditor’s bill in his own name, claiming to be the sole owner of the claim, making no allusion to James Andrews or his interests, and bringing in Henry C. Kibbee as indebted to
Before examining into the other questions which may arise upon the testimony and pleadings, it is necessary to determine whether the bill filed by Henry C. Kibbee is a cross bill.
A cross bill for purposes of relief is always designed for the purpose of enabling a defendant to avail himself of some defense which can only be made complete by granting him some affirmative relief against complainant, or against some co - defendant. Equity rarely can grant any affirmative relief upon an answer alone. If this could
A brief comparison of the issues before us, shows that the two causes have very little in common, and have no common issue of any substantial importance. The suit of Andrews is purely a judgment creditor’s bill on a personal judgment. The rights of James Andrews or his assignees are not referred to in the pleadings, and there is no reference in them to any mortgage security connected with the bond sued upon. Such a bill, had James Andrews retained his securities, would not have affected or prejudiced his rights. He might have filed such a bill as Kibbee’s upon the same facts, and it could not be in any way connected with the former suit. The fact that Henry C. Kibbee is a defendant in the other suit, and is sought to be charged as a debtor or trustee of Porter Kibbee, does not prevent him from bringing such actions on his own account as he may see fit, and they can not be deemed cross actions unless the issues are dependent upon the same matters. A bill to foreclose or redeem a mortgage presents no case which could possibly be connected with a judgment creditor’s bill. The controversies, although having an apparent relation arising out of the peculiar circumstances, have no legal dependence on each other, each having matters involved which are entirely foreign to the other.
The suits being distinct, each must be considered by itself, and determined upon its own facts. In the present case it may perhaps lead to no different result, inasmuch as no party can be entitled to any affirmative relief not warranted by the allegations in the pleadings.
The ownership by Stephen C. Andrews of the bond against Porter Kibbee, is not admitted by Henry C. Kibbee.
■ It is claimed, however, that because Henry C. Kibbee has become possessed of the securities, and is a party defendant, the case under its present aspect is so changed as to rectify this objection. This is not so. The testimony which shows title in Henry C. Kibbee, shows that the complainant had no right of action such as he sets up in his bill. It is difficult to see how he could have amended his bill so as to remedy this defect, inasmuch as there is no evidence [tending to show any indisposition in the assignees to enforce their claims, and Andrews makes no offer to redeem them. But be this as it may, the bill has not been amended, and no supplemental pleadings have been filed. The case stands in a position where no such question can be entertained. This bill was properly dismissed.
The decree upon Kibbee’s bill is so framed as to guard all of the rights which Andrews may have in the premises. The only controversy arising upon Kibbee’s rights in the
The decree must be affirmed, with costs.