3 Barb. 151 | N.Y. Sup. Ct. | 1848
The proper time for filing a cross-bill is before a replication is filed to the answer of the defendant to the original bill. If a cross-bill is filed after issue is joined in the original cause, proceedings will only be stayed upon showing a satisfactory excuse for the delay in filing the cross-bill. I do not deem it necessary to inquire, in this case, whether or not such excuse is shown; for the reason that I think the plaintiff in the cross-bill is mistaken in supposing a cross-bill necessary. Assuming, as I do for the purpose of this motion, that the facts stated in the cross-bill are true, I think all the relief to which the plaintiff in that bill would be entitled can be obtained in the original suit. As a general rule, a cross-bill is only necessary when the defendant is entitled to some affirmative relief. In this case I cannot see that the defendant is, upon his own showing, entitled to any such relief. If he shows, as he may do upon the issue joined in the original suit, that when he conveyed to his children, the agreement set forth in his answer was executed, and that at the time of the execution of the mortgage to Braman he was in possession of the farm, the lien upon the farm which Braman acquired by his mortgage would probably be held to be subject to his life estate. For, although Braman may not in fact have known that he was entitled to such life estate, yet as George Wilkinson was, at the time the mortgage was taken by Braman, in the actual possession of the farm, such possession was sufficient to put him upon inquiry as to the rights of the party so in possession; and he cannot claim protection against such rights as - a bona fide mortgagee without notice. (Spofford v. Manning, 6 Paige, 383.) On the other hand, as it is not claimed in the cross-bill that the Marshall mortgage was merged in the mortgage executed by Myron G. Wilkinson and Caroline M. Wilkinson to Braman; nothing appears, even in the cross-bill itself, which should preclude Braman from a decree of foreclosure upon that mortgage. Nor does the
The decree made in the original suit is manifestly erroneous. It makes no provision for staying proceedings in case of the payment, before sale, of the amount actually due; and it charges George Wilkinson personally with the deficiency upon both mortgages. Under any circumstances, therefore, the defendant would be entitled to have that decree modified; and if he can establish the defence set up in his answer, he will be entitled to have a very different decree entered. I think he should be permitted to take proofs in support of his defence. Notwithstanding the laches on his part, it may be that substantial-injustice may be done to him by precluding him from the opportunity of proving his defence, even now. I shall therefore direct that he have until the 20th day of July next to examine witnesses and produce proofs before the referee appointed under the stipulation between the parties; and that the plaintiff have until the first day of August next to examine witnesses and produce rebutting evidence. And that all proceedings upon the decree made in March last be stayed in the mean time. The defendant must be charged with the costs of opposing the motion.
