Tarleton v. Vietes

• Decision Date: 31 December 1844
• Citation: 1 Gilman 470,6 Ill. 470,41 Am.Dec. 193,1844 WL 4097
• Parties: THEODORE TARLETONv.ROGER VIETES.
• Court: Illinois Supreme Court

1 Gilman 470

6 Ill. 470

1844 WL 4097 (Ill.)

41 Am.Dec. 193

THEODORE TARLETON

v.ROGER VIETES.

Supreme Court of Illinois.

December Term, 1844.

BILL IN CHANCERY to foreclose a mortgage, etc. in the Fulton circuit court, brought by the defendant in error against the plaintiff in error. At the March term, 1844, the Hon. JESSE B. THOMAS presiding, the defendant below filed his answer, to which exceptions were filed, and the same were submitted to the master, whose report sustained the exceptions. On motion, leave was given to file an amended answer and a cross bill. At the August term, no amended answer having been filed, a decree pro confesso was entered, and a further decree against the defendant for $258.87. The defendant thereupon prosecuted a writ of error in this court.

J. T. STUART and B. S. EDWARDS, for the plaintiff in error.

I. The answer never was adjudged insufficient; therefore no decree pro confesso could be entered against defendant. R. L. 122 § 11; Gale's Stat. 142 § 11.

II. The exceptions to the answer were not well taken. Ballance v. Underhill, 3 Scam. 461; Thornton v. Heirs of Henry, 2 do. 221; Edwards v. Helm, 4 do. 142, Cooper's Eq. Pl. 86, 87; Story's do. 314 and 394; Fife v. Clayton, 13 Vesey 546.

III. An appeal may be prosecuted from such an interlocutory decree as this. An appeal lies from any decree that establishes any principle which will finally affect the merits of the case, or deprives the party of any benefit he may have at the final hearing, or whereby he is aggrieved. 3 Barb. & Har, Dig. 183 § 1; 184 § 7; 185 § 15; 187 § 40; Beach v. Fulton Bank, 2 Wend. 225; Buel v. Street, 9 Johns. 443; Dey v. Walton, 2 Hill's (N. Y.) R. 403.

L. W. ROSS, and J. LAMBORN, for the defendant in error.

TREAT, J.^a1

Vietes filed a bill in chancery to foreclose a mortgage, executed by Tarleton to secure the payment of three promissory notes.

Tarleton answered, admitting the statements of the bill, but alleging in substance, that after the execution of the notes and mortgage, an agreement was made between the complainant and the defendant, whereby the defendant was to convey in fee to the complainant, a part of the mortgaged premises and the complainant was thereupon to discharge the notes, and cancel the mortgage; that in pursuance of the terms of this agreement, the defendant made out and tendered a deed to the complainant, who refused to receive it; whereby, the defendant alleges that the notes were paid, and prays that they may be given up, and the mortgage canceled. The deed is copied into the answer, and referred to as an exhibit in the cause. It appears to be executed by Tarleton and his wife, and is regularly acknowledged.

The complainant excepted to the answer, because it introduced new facts, which were the proper subject matter of a cross bill. The exception was referred to the Master, who reported, that the same was valid and ought to be allowed; whereupon an order was made, allowing the defendant until the first day of the next term, to amend his answer, and file a cross bill.

At the next term, the bill was taken for confessed, and a decree made, requiring the defendant to pay to the complainant, on or before the first day of the succeeding term, the sum of $258.87, the amount found due on the notes and mortgage. From that decree, Tarleton prosecutes a writ of error.

The only question raised by the assignment of errors is, as to the sufficiency of the answer.

In equity, a defendant may in his answer, rely on any matter, which shows that the complainant is not entitled to the relief he claims by his bill. If the defendant succeeds in establishing such a defence, there must be a denial of the relief sought, and a dismissal of the bill. He is not, however, permitted to go further than to defeat the complainant. He can use his answer for the purpose of defence, but not for the purpose of obtaining relief on his part. If he claims affirmative relief, he must seek it by way of an original or cross bill. Ballance v. Underhill, 3 Scam. 453. So much of the answer, therefore, as asks for the surrender of the notes and the cancellation of the mortgage is irrelevant, and must be disregarded. This part of the answer would be the proper subject matter of a cross bill.

The residue of the answer is not obnoxious to the exception taken to it. Admitting its allegations to be true, the complainant is not entitled to a foreclosure of the mortgage. By the terms of the agreement disclosed in the answer, the notes and mortgage were to be fully satisfied, by the conveyance in fee to the complainant of a portion of the premises embraced in the mortgage. The answer shows a performance of this agreement on the part of the defendant, as far as it was in his power to perform. He executed the deed and tendered it to the complainant, and on his refusal to accept it, he brings it into court, and insists on the specific performance of the agreement. He has thus kept the tender good, and manifested a readiness to carry the agreement into full effect. If his defence is sustained, the deed can be withdrawn from the files, and handed over to the complainant. The defendant has done all that he can do to complete the execution of the contract. He has been prevented from consummating it by the wrongful act of the complainant. Under such circumstances, the complainant should be required to adhere to the contract, and perform its conditions on his part. This can in effect be done in this case, by denying him any relief and by dismissing his bill. We are of the opinion that the circuit court erred in adjudging the answer insufficient.

It is suggested, however, that the agreement set up in the answer is void by the statute of frauds. It does not appear whether the contract was in writing or by parol. Whether obnoxious to the statute or...