delivered the opinion of the Court:
This case Avas before us at the September term, 1877, and the facts are fully stated in the former opinion, and it will not be necessary to repeat them here. See Phelps v. Harding, 87 Ill. 442. When the case Avas here before it was held that Harding was not entitled to a decree setting aside the tax certificates, except upon condition that he pay the holders of the certificates of purchase the amounts expressed therein and subsequent taxes paid by them. The former decree Avhich Harding had obtained vacating the tax sales as a cloud on the title to the premises, Avas reversed and the cause remanded, with directions to the circuit court to render a decree consistent with the opinion then filed. After the remanding order was filed in the circuit court a decree Avas rendered to the effect that if the complainant, Harding, should Avithin ten days pay the Farwells the amount they had advanced on. account of taxes, thereupon all their claims upon the premises should be extinguished. But if Harding should not make such payment Avithin the time limited, then the rights and interests of the Farwells under the tax sales should not be affected by the decree. This decree, on appeal to the Appellate Court, was affirmed, and the Farwells appealed to this court.
It is a plain proposition that when Harding appealed to a court of equity to cancel and set aside the tax sales as a cloud upon the title to the lands, the relief could only be granted on equitable terms, that he should repay the money which had been advanced to clear the property from the tax liens, before the tax sales should be set aside. But the question that now arises is, whether Harding, having gone into a court of equity, can be compelled against his desire to abandon his suit, to pay off the claims for taxes, or has he the right to-abandon the action and leave defendants in the bill in the possession of the tax certificates precisely as they were before the suit was commenced, as decreed by the circuit court. It is true the Farwells filed a cross-bill, in which they pray that Harding, the complainant in the bill, may be decreed to pay them the amount they paid for the tax certificates, and the amount of subsequent taxes paid. But we do not understand that they have any greater rights with the cross-bill than they had without it. If a man voluntarily buys land at a tax sale, and afterwards pays taxes on it, we know of no principle of equity which would allow him to maintain a bill against the owner of the land to obtain a decree for the repayment of the money. If an original bill could not be maintained, a cross-bill could not, because the same principle which would govern the one would control the other. Where a cross-bill seeks affirmative relief, it is indispensable that it be equitable relief, for to this extent it is in the nature of an original bill, as held in Tobey v. Foreman, 79 Ill. 489. Suppose an original bill had been filed by the Farwells, in which •it was alleged that they had purchased the lands for taxes, and had paid the subsequent taxes for a number of years, and then conclude with a prayer in the bill that the owner of the land should refund the money thus paid. It is obvious that a bill of that character could not be maintained, because the relief sought could not be regarded as equitable relief. But when the owner of the land comes into a court of equity and. prays that the tax sales may be canceled and set aside for certain well grounded reasons set up in the bill, then it is that a court of equity, as a condition upon which the relief shall be granted, has the right to impose equitable terms upon the complainant. This is well illustrated in Story’s Equity Jurisprudence, vol. 1, sec. 301, where it is said :
“If the borrower comes into a court of equity seeking relief against the usurious contract, the only terms upon which the court will interfere are that the plaintiff will pay the defendant what is really and bona fide due to him, deducting the usurious interest; and if the plaintiff do not make such offer in his bill, the defendant may demur to it, and the bill will be dismissed.”
The same author (sec. 693,) in discussing the question where a bill has been filed for the rescission, cancellation, or delivery up of agreements, securities, or deeds, says:
“In all cases of this sort, where the interposition of a court of equity is sought, the court will, in granting relief, impose such terms upon the party as it deems the real justice of the case to require; and if the plaintiff refuses to comply with such terms, his bill will be dismissed.”
It will be observed that the complainant, Harding, in his bill in this case, did not offer to pay the amount the Far wells had advanced, and on this ground the bill was demurrable, and had a demurrer been interposed, the court could have done no less than dismiss the bill.
Can a court of equity compel the complainant in the original bill to pay the amount which has been advanced in procuring the tax certificates, and in paying subsequent taxes, unless he insists on a decree of the court vacating the tax sales ?
A majority of the court are of opinion that while the relief may be granted upon condition .that complainant pays the money, yet he can not be compelled to pay, unless he desires the relief;—that the correct practice, as indicated by Story, cited supra, is for the court to impose equitable terms, and in case complainant declines or refuses to comply with those terms, to dismiss the bill. This was in substance the view taken by the Superior Court, which we regard as correct.
The judgment of the Appellate Court will be affirmed.
Judgment affirmed.