delivered the opinion of the Court:
It is insisted that the court erred in sustaining the demurrer to the cross-bill, and dismissing the same.
Palpably, the cross-bill is wholly destitute of equity. The admitted lack of readiness and willingness on the part of appellants to perform, precludes all right to demand from appellee a specific performance of the contract.
It is supposed by appellants that it is not necessary that a cross-bill should show any ground for equitable relief, and authorities are cited as favoring that view. But wherever the cross-bill seeks relief, it is indispensable that it should be equitable relief, otherwise the bill will be demurrable; for to this extent it is not a pure cross-bill, but it is in the nature of an original bill, seeking further aid of the court, beyond the purposes of defense to the original bill. And, under such circumstances, the relief should be such as, in point of jurisdiction, the court is competent to administer. Story Eq. PL secs. 629, 398.
A cross-bill will be open to a demurrer when it seeks relief which is of an equitable nature, and does not contain all the proper allegations which confer an equitable title to such relief upon the party. Id. sec. 630.
But, it is said that the acts of appellee set up in the cross-bill amount to a waiver of the terms of the contract as to time ; that by appellee filing his bill to enforce the contract, he thereby continued its existence, and extended the time for its performance ; that this act was a complete waiver of the limitation for appellants’ performance to April 25, 1872. It is said, there is no doubt that when appellee first filed his bill, Tobey and Booth might have, by answer, submitted to perform, and by cross-bill have compelled appellee to perform. But that would have been only compelling appellee to do what he was then ready and willing and offering, by his bill, to do, to-wit: to pay the purchase money on receiving a conveyance.
By the filing of his supplemental bill, it is said that appellee again affirmed the contract was in existence, and asked for its performance by his supplemental bill; that the case then stood as if appellee had filed an original bill, setting up all of the various matters contained in his original and supplemental bills, and praying performance, with compensation. And it is asked, can there be any doubt that appellants might then, by their answers, submit to perform, and by their cross-bill compel appellee to perform ? But submit to perform how? By making the conveyance only, or by making conveyance and paying the damage sustained by appellee for not having the conveyance made at the stipulated time.
If appellants would submit to perform in the latter mode, then appellee might be compelled to perform, as in the case of filing the original bill, had appellants submitted then to perform. It would only be requiring appellee to do what he was ready and willing and offering to do by his supplemental bill: to pay the purchase money on the making of the conveyance, and payment of the damage caused by the delay in making the deed.
But, refusing to convey upon payment of the purchase money when the property was worth largely more than that amount, and waiting until the property had depreciated greatly below the purchase price, and then, for the first time, offering or being willing to convey, to then ask that appellee should be compelled to take the property and pay the purchase price, is too ungracious a claim for equitable cognizance.
And how it has, in any wav, been aided by the filing of the original and supplemental bills by appellee, we are unable to comprehend. There was no equitable reason for enjoining the prosecution before the county court of the claim for damages for breach of the contract.
We find no error in the record, and the decree is affirmed.
Decree affirmed.