36 Ind. 249 | Ind. | 1871
The only error assigned in this case is, that
Perry Hamilton sued Johnson and Armstrong, alleging that Kemp was, on the 29th of December, 1853, the owner of real estate described in the complaint; that, on that day, Kemp executed a mortgage on said real estate to the State of Indiana for two hundred and fifty dollars; that, on the 22d day of October, i860, the mortgage being unpaid, Kemp sold and conveyed the land to said Johnson and Armstrong by a general warranty deed; that, on the 20th day of March, 1861, Johnson and Armstrong, by warranty deed, conveyed said lands to Mitchell and Mitchell; that, on the 31st day of •December, 1863, said Mitchell and Mitchell^ by warranty deed, conveyed the same to said plaintiff Hamilton; that the said plaintiff had been compelled to, and did, pay off the said mortgage, which was a breach of the covenant in the deed from said Johnson and Armstrong to said Mitchell and Mitchell; wherefore, etc.
Copies of the mortgage and deeds referred to are made part of the complaint.
Johnson and Armstrong, after setting out the facts of the case, say that said Kemp and said Mitchells are parties in interest herein, and ask that they be summoned to answer as to their interest and be made parties.
Accordingly Kemp filed his cross complaint, in which he alleges that, on the 22d day of October, i860, he was the owner, in fee simple, of the lands set out in the complaint, and. was the owner thereof at the time of the execution of said mortgage in the complaint mentioned; that, on that day, he sold said lands to Johnson and Armstrong, for twenty-six hundred and forty dollars, and, with his wife, executed to them a deed therefor; that, on the 20th day of March, 1861, he purchased said land back from said Johnson and Armstrong, and agreed to pay them eleven hundred and eighty dollars in money, and surrender certain notes made by them to him for the balance of the purchase-money; that Johnson and Armstrong, in pursuance of said contract, placed him
Several objections are urged to the cross complaint. It is a little difficult to classify the pleading. It is not, we sup
We are inclined to regard the cross complaint as one to redeem the mortgage, and regarding it as such, the question is, is it 'sufficient ? What are the essentials of such a complaint ? As it is equitable relief which is sought, we must, in the absence of any statutory provision on the subject, look to the approved authorities on the subject of equity .pleading for an answer to these questions. If the deed was but a mortgage, as claimed by Kemp, then he was bound to pay the money at the time stipulated, or, according to the doctrines of the courts of law, his right to pay off the debt and have his land back was gone. But in equity the rule was different. There he might come afterward with the money and interest, and, on paying, have a return of the pledge. If the mortgagee refused to accept it, he might file his bill to redeem, and, praying the court to take the account, and offering to pay what might be found due, the court would take jurisdiction, ascertain the amount, and compel the mortgagee to accept it, and give up his claim upon the mortgaged property. But, though it was not necessary that tire party filing such a bill should actually bring the money into court, in the first instance, it was necessary that he should offer to pay the amount which he acknowledged to be due, or-which the court should find to be in arrear.
“ It is a uniform requirement, in regard to bills to redeem, that the bill should contain a formal offer to pay whatever sums the plaintiff admits to be due; and the prayer, that upon payment of whatever sums might be found due upon taking the accounts between the parties, the mortgagee or other incumbrancer might be decreed to reconvey the property, is not sufficient. .Such a .bill was ..held bad upon de
“A bill in equity must state a case upon which, if admitted by the answer, a decree can be made; therefore a bill to ■redeem from a sale upon execution of a right of redemption, which contains no averment of readiness to pay and an offer to pay, is bad on demurrer, for want of equity.” Perry v. Carr, 41 N. H. 371.
Counsel for the appellant, however, refer us to Crassen v. Swoveland, 22 Ind. 427, and Crane v. Buchanan, 29 Ind. 570, and contend that the plaintiff should recover on the authority of those cases. But those wére actions brought for money had and received, the mortgagee having sold the land for more than the amount of the debt. The cross complaint cannot be sustained as a complaint for the recovery of money. The code enumerates four things which the complaint “shall contain.” 2 G. & H. 69, sec. 49. The fourth of which is “a demand of the relief to which the plaintiff may suppose himself entitled. If the recovery of money be demanded, the amount thereof shall be stated.”
This question was considered, by this court, in Colson v. Smith, 9 Ind. 8, and it is evident that if the amount of money for which judgment was asked had not been specified in the body of the complaint and referred to in the prayer, it would have been adjudged bad as a complaint for money If the defendant do not demur, but answers the complaint, any relief may be granted to which the complaint shows, the party to be entitled.
We are unable to see any such connection between the
In Fletcher v. Holmes, 25 Ind. 458, this court say: “The statute expressly confers power to determine the rights of the parties on each side of a case as between themselves, when the justice of the case requires it.” 2 G. & H. 218, sec. 368. “The mode of procedure, however, is not pointed out by the statute, and as the authority given is one previously possessed only by courts of chancery, we suppose the rules of pleading and practice of those courts, modified by the spirit of the code, must be resorted to.” 2 G. & H. 336, sec. 802. “ In those courts, when a defendant sought relief against a co-defendant, as to matters not apparent upon the face of the original bill, he must file his cross bill, alleging therein the matters upon which he relied for relief, making defendants thereto of such co-defendants and others as was proper, and process was necessary to bring them in,” etc.
Following out this idea, and referring to the authorities with reference to cross bills, we find, as we think, a satisfactory solution of the question in hand.
“A cross bill, ex vi terminomm; implies a bill brought by a defendant in a suit against the plaintiff in the same suit, or against other defendants in the same suit, or against both, touching the matters in question in the original bill,” etc. Story’s Eq. Pl., sec. 389.
“A cross bill is a bill brought by a defendant against a plaintiff or other parties in a former bill depending, touching the matter in question in that bill.” Mitford Ch. Pl. 80. So in Cross v. De Valle, 1 Wal. 1, it is said: “A cross bill, being an auxiliary bill simply, must be a bill touching matters in question in the original bill.” Frear v. Bryan, 12 Ind. 343. But as the demurrer in this case was by the
The judgment is affirmed, with costs.