Andrews v. Kibbee

• Decision Date: 04 December 1863
• Court: Michigan Supreme Court
• Parties: Stephen C. Andrews v. Henry C. Kibbee and others. Henry C. Kibbee v. Stephen C. Andrews and others

12 Mich. 94

Stephen C. Andrews v. Henry C. Kibbee and others.

Henry C. Kibbee v. Stephen C. Andrews and others

Supreme Court of Michigan

December 4, 1863

Heard May 14, 1863; May 19, 1863; May 20, 1863.

Appeal by Stephen C. Andrews, from decree made by the Wayne Circuit Court in chancery. The facts, and the nature of the pleadings, sufficiently appear by the opinion.

Decree affirmed with costs.

J. P Whittemore and S. T. Douglass, for the appellant, argued that, notwithstanding the assignment of the Porter Kibbee bond and mortgage to Henry C. Kibbee, Andrews had such an interest as entitled him to maintain a creditor's bill: 3 Edw. Ch., 106; 2 Barb. Ch. Pr., 174; 1 Hill on Mort., 516. And that relief might be had on the case as it stands. Relief may be given on facts disclosed by answer: 10 Yerg. 118; 8 Dana 183; 7 Yerg. 30,36.

D. C Holbrook and G. V. N. Lothrop, for Henry C. Kibbee, insisted that the second bill was not a cross, but an original bill. The bill of Andrews avers the judgment debt to be his own. The answer of Henry C. Kibbee is silent on the subject of this ownership, but notwithstanding this, the averment in the bill, being material, must be proved: 2 Ohio 415; 6 Cranch 51; 3 Bibb. 536; 21 Ill. 40; 2 Gilm. 67; 14 Ark. 641; 5 Mich 179. But the averment is shown to be untrue, and that bill was therefore properly dismissed.

Campbell, J. Manning and Christiancy, JJ. concurred. Martin, Ch. J. was not present at the decision.

OPINION

Campbell J.:

These cases having been heard together, and it being claimed on the one hand, and denied on the other, that they are to be regarded as cross suits, and affected by the rules governing those, it becomes necessary, before referring to the peculiar form of the issues, to refer to such of the facts as may bear upon that portion of the controversy.

Porter Kibbee some years ago executed to William S. Driggs a bond for $ 5,000, and an accompanying mortgage on certain property, which was incumbered by previous mortgages made by prior owners. This bond and mortgage were assigned by Griggs to Stephen C. Andrews, who, on the fifth of March, 1858, assigned them to his uncle James Andrews, to secure two notes for $ 2,700 each, payable respectively April 1, 1859, and April 1, 1860. In June, 1859, Stephen C. Andrews, who had retained the bond in his possession, sued Porter Kibbee upon it, in the name of Driggs for the use of said Stephen, and obtained judgment upon it September 12, 1859, and upon that judgment, after the return of an execution, filed a creditor's bill in his own name, claiming to be the sole owner of the claim, making no allusion to James Andrews or his interests, and bringing in Henry C. Kibbee as indebted to Porter Kibbee upon alleged joint dealings, and as having taken the title to certain land from Porter Kibbee, with intent to hinder and defraud his creditors. The Buhls were brought in as purchasers of the same land. This bill was filed December 21, 1859, and was defended by Henry C. Kibbee, and proofs were taken from time to time on both sides. In March, 1861, Henry C. Kibbee purchased the securities which had been given by Stephen C. Andrews to James Andrews, and the bond and mortgage assigned as before mentioned. In August, 1861, he filed a bill to establish his title to the securities, and to foreclose the mortgage, making as defendants, George W. Bissell, as holding the prior incumbrances, which he claimed the right to redeem, Porter Kibbee, as mortgagor, and Stephen C. Andrews, as, assignor of the securities, charged with having asserted a right to collect them for himself by the proceedings at law and in equity first mentioned, and as having colluded with Bissell to defeat the equity of redemption in the mortgaged premises by previous foreclosure purchases in Bissell's name. The court below authorized Henry C. Kibbee to sue at law on the notes against Stephen C. Andrews, dismissed the bill of the latter, and granted a decree allowing a redemption and sale of the mortgaged premises, but directing the proceeds to be paid into court to be distributed as should be found proper on a subsequent inquiry.

Before examining into the other questions which may arise upon the testimony and pleadings, it is necessary to determine whether the bill filed by Henry C. Kibbee is a cross-bill.

A cross-bill for purposes of relief is always designed for the purpose of enabling a defendant to avail himself of some defense which can only be made complete by granting him some affirmative relief against complainant, or against some co-defendant. Equity rarely can grant any affirmative relief upon an answer alone. If this could be done, there could never be any occasion for a cross-bill, which must be strictly confined to the matters involved in the cause. A bill which introduces other distinct matters is an original bill, and the suits are separate and distinct: Story Eq. Pl., § 631; Griffith v. Merritt, 19 N.Y. 529.

A brief comparison of the issues before us, shows that the two causes have...