231 Ill. 22 | Ill. | 1907
The main contention of appellant is, that the court erred in sustaining the demurrers to the cross-bill and dismissing it for want of equity. The original bill in this proceeding was filed by the Northern Trust Company solely for the purpose of obtaining an instruction of the court as to its power and duty, as trustee, in bidding at a sale that might be made under a decree of foreclosure theretofore entered, and had no bearing upon the merits of the original decree of foreclosure. The relief sought by the answer of appellant and by his cross-bill was to vacate and set aside this decree of foreclosure. The cross-bill was therefore in the nature of a bill of review, and the sole ground urged to sustain it is fraud. A cross-bill must be confined to the subject matter of the original bill, and cannot introduce new and distinct matters not embraced in the original bill. (3 Daniell’s Ch. Pl. & Pr.—Perkins’ ed.—p. 1743.) Matters in the cross-bill must be germane to the matter involved in the original bill. The new facts which it is proper for the defendant to introduce thereby are such, and such only, as are necessary for the court to have before it in deciding the questions raised in the original suit, to enable it to do full and complete justice to all the parties before it in respect to the cause of action on which the complainant rests his right to aid or relief. (5 Ency. of Pl. & Pr. 640.) We are inclined to the opinion that on the facts presented in this record the cross-bill of appellant was not germane and that on this ground the demurrer was properly sustained; (Ballance v. Underhill, 3 Scam. 453; Pest el v. Primm, 109 Ill. 353; Gage v. Mayer, 117 id. 632 ;) but without giving our reasons at length as to that ground for dismissal, we are convinced that the demurrer to the cross-bill was properly sustained on the other ground stated in the chancellor’s order,—that it showed no equity on its face. “A demurrer in chancery is always to the merits and in bar of the relief sought, and proceeds upon the ground that, admitting the facts to be true as stated in the bill, still the complainant is not entitled to the relief he seeks.” (Harris v. Cornell, 80 Ill. 54.) It appears that appellant is an attorney in actual practice, and while he insists that he was not properly advised as to his rights in the matter when he signed said agreement on March 15, 1898, or joined as complainant in the foreclosure proceedings of August 10, 1900, still the cross-bill does not allege that his joinder as plaintiff was unauthorized, but, on the contrary, states that he gave his consent, and it nowhere appears from this record that such consent was ever afterwards withdrawn or attempted to be withdrawn.
It is apparent from the facts presented on the two records that the decision in Patterson v. Northern Trust Co. 230 Ill. 334, heretofore referred to, is conclusive as to the merits of the cross-bill in this case. In that case it is shown that appellant has been paid in full all that he is entitled to under said deed of trust, and he did not claim in that case, and has not alleged or claimed in this case, that he is in any way injured by the ruling of the court in the original proceedings. It is true that in this case, as in the other, he charges, in his brief, secret agreements between the Northern Trust Company and the Merrimac Building Company, and claims that the original bill to foreclose was brought solely for the benefit of said trust company and its attorneys, but he has not shown in that proceeding, or in this, how he has been injured thereby. The jurisdiction of a court of equity to give the relief asked for in the original proceedings in the other case or on this cross-bill,—even if it appeared (which it does not) that there had been collusion between the parties, as alleged,—could only be invoked by appellant if it was shown “that the collusive acts have done an injury” to him. First Baptist Church v. Syms, 51 N. J. Eq. 363; Central Trust Co. v. Peoria, Decatur and Evansville Railway Co. 104 Fed. Rep. 420.
As we understand this record, appellant’s only basis of claim for injury by the issuing of said order of June 25, 1902, is, that the Northern Trust Company should have insisted on strict forfeiture of the lease. Appellant does not deny that he signed an agreement waiving this forfeiture, and that he authorized the bill of- foreclosure in the original proceedings, which amounted to a waiver of' notice to forfeit. (Wood on Landlord and Tenant, sec. 46; 18 Am. & Eng. Ency. of Law,—2d ed.—382-384, and cases there cited.) He complains that certain agreements of his attorneys in filing the bill for foreclosure in the original proceedings and in entering the decree therein were not authorized by him. He does not deny that they were authorized to act as his attorneys, and he does not here or in the original proceedings show wherein they misled him or in any way acted without authority. He signed the agreement of March 15, 1898, substantially waiving any right which he may have had to a strict forfeiture, and never raised any question in this regard until he filed, years after, his answer and cross-bill herein. To insist upon a strict forfeiture of this lease under these circumstances would be most' harsh and unjust. On the facts presented by this record we think this delay amounts to such laches as to preclude him from now raising this question.
The appellant is barred by his own acts from raising the question as to the right of the Merrimac Building Company to take as assignee under said lease, (Coquard v. National Linseed Oil Co. 171 Ill. 480,) as he is also barred from questioning the authority of the Northern Trust Company to act as trustee under said deed of trust.
The judgment of the Appellate Court will be affirmed.
Judgment affirmed.