
    Isaac Sebring v. Edward P. Conkling and others.
    A foreclosure bill on a first mortgage prayed a decree for deficiency against the owner of the premises, who had assumed its payment, and,, also, the payment of a second mortgage thereon.—Held, that the holder of the second mortgage, who was a party, could not, by filing a cross-bill against the owner, obtain a decree for deficiency on his own mortgage.
    Bill to foreclose. Motion that cross-bill be dismissed.
    
      Mr. J. W. Davis, for the motion.
    
      Mr. J. D. Barline, contra.
    
   The Chancellor.

This is a suit for foreclosure and sale of mortgaged premises. The present owner of the property assumed the payment of both the first and second mortgages. The bill, which is filed by the holder of the first mortgage, prays a decree for deficiency against the owner. The second mortgagee having answered, setting up his mortgage, filed a cross-bill against the owner of the property with a view to obtaining a decree for deficiency in his favor against the latter. The owner of the property moves to dismiss that bill.

A cross-bill is a defence, and it therefore must be confined 'to the matters in litigation in the original suit. It cannot become the foundation of a decree concerning matters not embraced in the original suit, and, if it does, no decree can be made on such matters. Galatian v. Erwin, Hopk. 48; Dan. Ch. Pr. 1549; Griffith v. Merritt, 19 N. Y. 529.

The liability of the owner of the premises to the second mortgagee for deficiency, is not a matter of defence but a distinct substantive cause of suit. The object of the cross-bill is not, in any sense, to aid the defence, but to obtain a decree in favor of one defendant against another, in a matter distinct from the subject matter of the suit.

The counsel of the complainant, in the cross-bill, insists that the bill can be supported on the ground that it is necessary in order to procure a complete determination of the matters in litigation. Obviously it cannot be maintained on that ground. The liability of the owner to the complainant with cross-bill for deficiency, is not one of the matters in litigation in the original suit.

The cross-bill will be dismissed.  