28 Ill. 322 | Ill. | 1862
This cause was tried in the court below, on bill and answers, without replications. The answers denied all the material allegations contained in the bill. When a trial is had upon bill and answer, and no replication is filed, according to the uniform rule of practice in a court of equity, the answer must be considered as true. De Wolf v. Long, 2 Gilm. 682; Kitchell v. Burgwin, 21 Ill. 40. The answers deny any notice of McGirr’s agency, all knowledge that' complainants were the owners of the title, which is claimed by the bill, or of their unrecorded deeds, as well as all fraud in the sale to, or purchase by Tilden. The answers allege that he purchased for the sum of fourteen hundred dollars, nine hundred of which had been paid. This being considered as true, the court below could not have done otherwise than dismiss the complainants’ bill.
But it is further objected, that the court had no power to decree affirmative relief on the bill and answers alone. The practice has been long and uniformly settled, and it must be regarded as'the established practice of this court, that such relief can never be given, unless it be on bill or cross-bill praying relief. Balance v. Underhill, 3 Scam. 453 ; Edwards v. Helm, 4 Scam. 142; Tarlton v. Veets, 1 Gilm. 470; Rowan v. Bowles, 21 Ill. 17; McConnell v. Smith, 23 Ill. 611. In such cases, all the court can do, is to refuse the relief sought, and dismiss the bill, leaving the defendant, if he have equitable rights, to pursue them in an original suit. If this decree were to remain in force, it would operate as a bar to a recovery in ejectment, notwithstanding the complainants might establish an indisputable right of recovery outside of the grounds relied upon in the bill. It would be unjust to cut off their rights, by decreeing that Tilden had an indefeasible estate in the premises, without permitting complainants to controvert the fact by answer and proof. In decreeing a confirmation of his title without a cross-bill, the court below committed an error, for which the decree must be reversed, but a decree will be entered here, dismissing the bill without prejudice.
Decree reversed.
