| Ill. | Apr 15, 1864
delivered the opinion of the Court:
This is a suit in equity, to restrain the prosecution of a suit at law in favor of Antoine Lottenville against the appellee upon a bond executed by him, dated April 9, 1861, in the penal sima of $2,000, conditioned that he should, by deed, with the usual covenants, convey to Lottenville, the obligee, or his assigns, a tract of land in Kankakee county, within one year from that time. The bill alleges that Lottenville had, by deed, conveyed all his interest in the premises to Beauchamp, who, soon after the execution of the bond, entered into, and still remains in, possession of the premises. The condition of the bond not having been performed, a suit at law was brought upon it, for the use of Beauchamp, to recover damages; but before any trial was had, the appellee caused a deed to be executed and delivered to Beauchamp, which was sufficient to vest in him a perfect title to the premises. He received the deed, subject to, but not waiving, any claim which he might have by reason of not receiving the title at the proper time. Thereupon the appellee filed the present bill, setting forth the execution and delivery of the deed last named, and a great number of excuses for not having caused the deed to be made before that time, and prayed that the suit at law might be enjoined.
An answer was filed, admitting the execution and delivery of the deed last named, and denying the truthfulness and validity of the excuses alleged for not causing it to be made at the proper time; and claiming damages for the delay. To the answer, a replication was filed. At the hearing, the defendant asked leave to file a cross-bill, recapitulating his view of the controversy, and praying for damages sustained by the delay in the non-delivery of the deed; which was refused. The filing of a cross-bill is a matter of right, and requires no leave; but it does not necessarily stay the hearing of the original cause. If the complainant in the cross-bill desires a stay of proceedings, he should make an application for that purpose. Such applications are usually granted when made at the proper time, or where the furtherance of justice requires such a bill to be filed. A defendant desiring to file a cross-bill should do so without delay, and have the same at issue, if practicable, so as to be heard with the original bill. If he desires any further time, he must seek it as a matter of indulgence. The court is not required,- at the hearing of an original cause, to order the defendants to a cross-bill to plead, answer or demur instanter. It may give time for answering, and postpone the hearing until the answer comes in; or it may give time, and proceed with the hearing. The complainant in the cross-cause must have it ready to be heard when the original cause comes on for a hearing, or procure a stay of proceedings, if he desires that the two causes shall be heard together.
But we are unable to perceive any occasion for filing the original bill. The title to the premises had become vested in Beauchamp the assignee of Lottenville, for whose use the suit was brought, and the acceptance of the title was either an absolute bar of the action at law, or a bar pro tanto in mitigation of damages. By appropriate pleas the appellee could have set forth the facts and obtained all the relief which a court of equity could give him. His excuses for the delay in not causing the deed to be made, if valid, were all proper to "be considered as matters of defense. In short, he had as complete and ample opportunity to assert his defense in the action at law, as could be given him to assert his rights in a court of equity. The same facts which would entitle him to relief in equity could have been used as a defense in the suit at law and to the same extent; and we are unable to perceive any' reason for the exercise of equitable jurisdiction.
The decree of the court below will, therefore, - be reversed, and the bill dismissed.
Decree reversed.