Opinion
11-11-1892
COOGAN v. McCARRON.
Warren Dixon, for the motion. Gilbert Collins, opposed.
(Syllabus by the Court.)
Bill by MaryCopgan against DENNIS MC CARRON for an accounting, and to redeem land of which defendant is in possession as mortgagee. Defendant moves to strike out the bill. Granted.
Warren Dixon, for the motion.
Gilbert Collins, opposed.
PITNEY. V. C. This is a motion to strike out the bill under the 215th rule, instead of a demurrer. The bill is in the nature of a. cross bill, and is a continuation of the litigation dealt with in an opinion reported subnom. McCarron v. Coogan, 50 N. J, Eq. —, 24 At). Rep. 1033. The bill here drawn in question was filed after the promulgation of that opinion, and before the order dismissing the bill of McCarron was actually signed in accordance with the opinion. It sets out the same facts comprised in that bill; the giving of the bond and mortgage by Tomney to one Anderson for $150, and the assignment thereof to McCarron; and the death of Tomney intestate, leaving his widow surviving; the possession of the mortgaged premises by his widow until she died; the taking possession by McCarron, as mortgagee, more than 20 years before bill filed, and his continuance in possession as mortgagee to the present time. It states the heirs of Tomney as they wero stated in McCarron's bill, and shows title in complainant to the equity of redemption of the mortgaged premises. It then sets out the filing of the bill by McCarron, founded on the mortgage before set out, and also a mortgage for $100, executed by the widow of Tomney after the husband's death, and alleges that she had no title. It then states that the McCarron bill "claims that the sum of one hundred and fifty dollars principal money secured by the bond and mortgage first mentioned, together with interest from June 1, 1861, still remains due and unpaid to him;" and that McCarron, by said bill, "prays for an accounting by and under the direction of this court of what is due and owing to him under said mortgage, and that the defendants in said bill [of which the now complainant is one] may be decreed to pay to him the said principal sum of money," etc., "by a short day," etc., "and that, in default thereof, the said defendants may be foreclosed of and from ail right, title, and equity of redemption in and to the said mortgaged premises," etc. The hill proceeds to state that complainant, as defendant to that bill, filed her answer thereto, admitting the bond and mortgage first mentioned, and other facts stated in the bill, and setting up in her answer her right by inheritance, devise, and conveyance, as before stated in her bill; admitting in her answer McCarron's right to call upon the owner of the premises to redeem the first mortgage, and praying in her answer that she may be permitted to redeem accordingly. The bill herein proceeds to state that to her said answer a general replicationwas filed, and the cause proceeded to hearing according to the practice of the court, and that proofs were taken and showed facts not stated in the opinion of McCarron v. Coogan, and that it now remains undetermined; and that McCarron had given notice to complainant, as defendant to her bill, to dismiss his bill. The bill proceeds to state that, by reason of the control of the suit upon McCarron's bill being in him, complainant is unable to cause the same to proceed to an accounting and a decree of redemption, and therefore resorts to this cross bill. The prayeris that an accounting may betaken of the money due to McCarron upon the firstmentioned mortgage, and of any lawful claim of McCarron upon the premises, and of the rents, issues, and profits received by him, and the taxes, repairs, and other lawful charges paid by him, and that the net amount due him, if any, be ascertained, etc., and that she may be permitted to redeem the premises, with an offer to pay whatever may be found due to McCarron, etc.
The following reasons were alleged for striking out this bill:
1. That it was filed after the opinion was filed giving McCarron the right to dismiss the original bill, and that it cannot operate as a cross bill. If by this it is meant to assert that it cannot operate as a defense to the original bill, the point is well taken. The difficulty is that Miss Coogan, the now complainant, did not "defend" the original bill in the sense of denying the right of the complainant therein to the relief he asked, but acquiesced in it. The only dispute between the parties was as to the amount due on the mortgage. She, by her answer, joined in the prayer of the bill, and by this so-called "cross bill" she prays, in substance, the same relief that the original bill prayed. If, however, by this first point it is intended only to assert that the tiling of this cross bill cannot have the effect of keeping the suit on the original bill alive as a pending suit, I am inclined to think it is well taken; but whether the pendency of this suit is essential to the validity of the cross bill is quite another question, which will be dealt with presently.
2, 3. That the matters set forth in the cross bill are not the proper subject-matter of a cross bill and relief there under, and that said bill alleges the same facts that are alleged and admitted, and prays the same relief that is prayed for in the answer to the original bill. A cross bill proper, or a pure cross bill, is one that operates simply to defeat, or to tend to defeat, any relief on the part of complainant, as a bill for discovery from the complainant in aid of an answer, or one setting up a release given by complainant to defendant since answer filed, or to bring in any new parties interested in the subject-matter. It may well be that such bills fall with the dismissal of the original bill,—since, without it, there is nothing to defend, and a pure cross bill prays no affirmative relief,—and still be properly classed as cross bills, though perhaps more properly as original bills in the nature of crossbills; as, where a bill is filed for specific performance of a contract, and the defendant denies the contract set up by complainant, and sets up a different one, he may, by his cross bill, pray its specific performance. Formerly he could only have this relief by a cross bill, but the rule was relaxed by Lord Eldon, so as to decree the specific performance of the contract as proven by the defendant without a crossbill. Fife v. Clayton, 13 Ves. 546; Story, Eq. Pl. § 394; Fry, Spec. Pert. (Old Ed.) §§ 484, 485; Id. (3d Ed., with American notes,) §§ 737, 738, and eases cited. The case of Bradford v. Bank, 13 How. 57, goes the length of holding that in such cases relief will be granted to the defendant without across bill, and against the claim of the complainant to have his bill dismissed. If this case was rightly decided, it goes a long way towards showing that 1 made a mistake, on the view then taken of the merits, in allowing the complainant in the original bill to dismiss it even on terms. The cross bill here is one which prays affirmative relief to the complainant therein upon the facts set out in it, and, leaving out the element of the lapse of time, it would be good as an original bill. It would, so to speak, stand alone, and need no support from the original bill. It therefore will stand after the original bill is dismissed.
4. The fourth ground of the motion is that the facts set forth in the bill fail to show either legal or equitable grounds of relief against the defendant in it. This raises the real question to be determined. The bill shows that the defendant, McCarron, was in possession of the premises as mortgagee under the mortgage in question for more than 20 years after default in payment, and defendant's counsel relies upon this fact to bar the equity of redemption, notwithstanding the deliberate admission of the original bill, which was dismissed without prejudice. This claim is based upon the provisions of the eighteenth section of the statute of limitations, which enacts that if the mortgagee, and those under him, be in possession of the lands, tenements, and hereditaments contained in the mortgage, or any part thereof, for 20 years after default of payment by the mortgagor, then the right or equity of redemption of the mortgagor therein shall be forever barred. Revision, p. 597. The complainant, on the other hand, relied upon the fact that the defendant had filed a bill for strict foreclosure, and upon the opinion in McCarron v. Coogan. Defendant cited no authorities on this point, but my attention has, since the argument, been called to the case of Chapin v. Wright, 41 N. J. Eq. 438, 5 Atl. Rep. 574, which seems precisely in point in favor of the defendant, and is binding on me. There the mortgagee had been in possession more than 20 years after default in payment, and, as here, wishing to make conveyance of the premises, filed a bill for strict foreclosure, to which the mortgagor appeared. The mortgagee then dismissed his own bill, and filed a bill to quiet title, to which the mortgagor set up the previous bill to foreclose by way of answer, and, on motion, that defense was stricken out on the ground that the statute of limitationstook away all equity on the part of the mortgagor, and the filing of the bill to foreclose by the mortgagee was not aud a waiver of the statute as would bind him. The bill must be stricken out.