majority">Mr. Justice Scott

delivered the opinion of the Court:

¡No question is made as to the validity of the mortgage sought to be foreclosed by the original bill, nor as to complainant’s rights thereunder. The only error insisted upon is that alleged to have been committed by the court in the dismissal of the cross-bill. It can not be insisted, with any show of reason, there ought to have been any decree on the cross-bill against Munsell. The prayer of the cross-bill as to him is, that complainant be allowed to pay him the amount due on the notes and mortgage, and have the same assigned to complainant therein. That, Munsell was under no obligation to do, and the court could not rightfully decree that he should do so. The utmost that complainant in the cross-bill could ask Munsell to do, would be to accept the amount due on the mortgage, and release it of record. That, he was never asked to do. It is nowhere alleged in the cross-bill that Munsell refused to accept the amount due on the notes, and release the mortgage. Nor is it insisted in argument that he refused to release the mortgage on payment of the notes secured. There can be no question that Munsell’s demurrer to the cross-bill was properly sustained. But in no event could complainant in the cross-bill have any standing in court unless he brought in the amount due complainant in the original bill. That was done in Chicago Artesian Well Co. v. Connecticut Mutual Life Ins. Co. 57 Ill. 424, and it seems to have been on that ground the complainant in the cross-bill was permitted to litigate the equities arising between himself and his co-defendants. But in the case being considered, the complainant in the cross-bill has not brought the money due complainant in the original bill into court. All that he has asked to be permitted to do by his bill, is to be allowed to pay to the mortgagee the amount the court shall find to be due to him, and to have the notes and mortgage assigned to him, and that he may be subrogated to the rights of the mortgagee in the notes and mortgage. That is not sufficient. Complainant in the original bill has not now, and never had, the slightest interest in the litigation between the defendants to his bill, so far as the pleadings disclose, and certainly the law will not require him to wait for the amount of money it is conceded by all parties to be due to him, until their controversy can be adjudicated, which litigation might continue for an indefinite period. Had complainant brought the money into court for complainant in the original bill, and asked no relief except as to his co-defendants, it might be the court would have kept the mortgage, and the indebtedness secured thereby, alive, for his protection, until he could have litigated the matters in contention between himself and his co-defendants. That he did not do, and the relief he did ask was properly denied on the cross-bill, as at present framed.

It is not perceived how the dismissal of the cross-bill can work any injury to the complainant therein. The utmost he can claim is the right, as a subsequent purchaser, to redeem the property from the mortgage indebtedness, and that, under the statute, he can do as well after the foreclosure sale as before. It would have been proper,—and no doubt the court would have so decreed had its attention been called to this phase of the case,—to have dismissed the cross-bill without prejudice, so that any future litigation between the parties might not thereby be embarrassed. That will be done now in this court; but as complainant in the cross-bill did not ask in the court below to have it done, the modification will be made at his costs.

The decree of the circuit court will be modified so as to dismiss the cross-bill without prejudice, and with that modification the decree will be affirmed, at the' costs of plaintiff in error. „

t-. „ , Decree affirmed.

Citation profile

Relationships

How this case has been treated — in progress