35 Ill. 451 | Ill. | 1864
delivered the opinion of the Court:
The stating part of a bill in equity should narrate the facts and circumstances upon which the complainant seeks relief, and to sustain the bill they must be such as prima facie entitle him to the relief sought. A fundamental rule of pleading forbids all unnecessary allegations. There is no difficulty in the application of these rules to particular cases. If an allegation is one that in no manner tends to establish the complainant’s right, and is of no benefit to the defendant, no good reason requires it to be made. The complainant may make such allegations as tend to establish his right, and the defendant may insist upon such as he is entitled to for his own benefit and advantage. In the case under consideration the complainant seeks to redeem from a mortgage. She states in her bill the existence of the mortgage and that she is the owner of the equity of redemption. These facts are all that are required to give her a prima facie right to redeem. She was not required to offer to pay the money due before bringing her bill, or to make any allegation of such offer.
She might have entitled herself to costs and to a suspension of interest, by a proper tender of the amount due before the commencement of suit, and under such circumstances, to show her right to relief in those respects, the allegation would be a material one, but not otherwise. From the facts stated, she has a right to have an account taken of the sum due on the mortgage, and an opportunity to pay it.
This right does not depend upon any offers or concessions which she might make by her bill, but upon the fact that she is the owner of the equity of redemption, and that she has the right to discharge the incumbrance thereon. An offer in the bill to pay the amount due on the mortgage, would in no manner tend to establish the complainant’s right. The next inquiry is, whether such an offer would have been of any advantage or benefit to the defendant. If not, he is not entitled to have it made. The complainant would have the same right to dismiss her bill before a decree, whether the offer was or was not made. If made, it would not place her under any greater or new obligations to pay the debt. It would not confer upon the court any power which it would not otherwise have; and there is no conceivable benefit or advantage to the defendant in having such an offer made. We understand that the minrim “that a party asking equity must offer to do equity,” applies to cases where the equity required to be offered is one which would not be enforced without the offer. Why should a defendant be at liberty to insist upon a formal offer when it can be of no benefit to him or to any one else ? Under circumstances where such an offer would operate as a waiver of a forfeiture, or as a release of any technical right, or be of any other advantage to the defendant, there is some reason in requiring it to be made; but where the offer in no manner tends to establish the complainant’s right, and would be of no benefit to the defendant, we are of the opinion that it is unnecessary. But even if an offer should have been made, the bill should have been retained, with liberty to amend the offer made therein.
The decree of the court is reversed and the cause remanded.
Decree reversed.
