CHARLESTON.

#### Anna M. O’Brien *et als.*v. Cornelia M. Drake *et al.*

Submitted October 31, 1922.

Decided November 14, 1922.

1. *Equity*— Defendant *Cannot File Gross-Sill to Obtain Belief Available by Answer.*

A defendant will not be permitted to file a cross-bill to obtain relief which is clearly available to him 'by an answer, (p. 288).

■2. *Same*— >In *Suit to Determine Interests of Owners in Beal Estate and for General Belief, the Court Had Jurisdiction to.Decree Partition.*

In a suit brought for the purpose of determining the interests of owners in real estate, and having an accounting of the rents, issues and profits thereof, and praying also for general relief, the court has jurisdiction to decree partition of such real estate among the owners thereof when the same are determined and their interests therein fixed under the prayer for general relief, and in such suit, as a prerequisite to such partition, the court may determine what interests each of the several parties have in the real estate, and the character thereof, (p. 289).

*287Appeal from Circuit Court, Wood County.

Action by Cornelia M. Drake and_ others against Anna M. O’Brien and others. From a decree dismissing cross-bill, the defendants appeal.

*Affirmed.*

*W. H. Wolfe*and *V. B. Archer,*for appellants.

*William Beard,*for appellees.

Bitz, Judge:

Several years ago Cornelia M. Drake and others filed a bill in the Circuit Court of Wood County against Anna M. O’Brien, Administratrix of the estate of Dennis O’Brien, deceased, and others, in which it ivas asserted that the plaintiffs owned certain interests in a tract of about a thousand acres of land, and that the defendants also owned certain interests in said tract of land; that the defendants had ex-, eluded the plaintiffs from said land, and had not accounted to them for their share of the profits arising therefrom. An accounting was asked for, as well as other specific relief, and there was likewise a prayer for general relief. Decrees were entered in that suit denying some of the plaintiff’s contentions as to the extent of their interests in the land, but determining that they were entitled to an accounting, and fixing the basis upon which the accounting should be made: . The O’Briens applied for and obtained an appeal to this Court from that decree, and the same, so far as it found that the plaintiffs were entitled to an accounting, and fixing the basis thereof, was reversed. The decrees of the Circuit .Court, however, which denied some of the plaintiff’s contentions as to the extent of their' interest in the premises, were affirmed. A full history of this litigation appears in the opinion of Judge Pofeenbargbr, reported in 83 W. Va., at page 678.

One of the errors assigned upon that appeal was that the court had not decreed partition of the land among the several owners thereof, but this Court held, that the failure of the circuit court to so decree partition was not error, inasmuch as it was not specifically asked for, though it might *288bave been properly granted under tbe prayer for general relief. When tbe ease went back to tbe Circuit Court of Wood County, tbe plaintiffs bere, wbo were defendants in tbe original suit, filed tbis cross bill, tbe purpose of wbicb was to bave tbe interests of all of tbe parties determined and fixed, and to bave partition of tbe land among tbem, if tbe same was susceptible of partition, and, if not, to bave sale thereof. A demurrer was interposed to tbis cross bill for tbe reason that tbe matter set up and relied upon as grounds for relief was not properly tbe subject of a cross bill, but that all of tbe relief sought in said cross bill could be obtained upon tbe bill in tbe original suit. ■ Tbe court below was of tbis opinion, sustained tbe demurrer to the cross bill, and dismissed tbe same, and it is to review tbis action of tbe court that tbis appeal is prosecuted.

Tbe plaintiffs bere apparently rely for reversal of tbe decree upon a construction of tbe opinion of tbis Court upon tbe former appeal wbicb would deny tbe right to partition tbe land in that suit under tbe pleadings as they then existed, and further insist that, even though tbe land might be partitioned under tbe pleadings in that suit, all of tbe interests of tbe parties could not be determined therein, wherefore tbis cross bill should bave been sustained. A reference to tbe decision upon tbe former appeal will show that it was never held that partition might not be bad under thq pleadings in that suit, as the same then existed. It was only held that tbe failure of tbe circuit court to grant partition in tbe decree which bad been theretofore entered was not error, in view of the fact that it bad not been specifically asked for, but tbe inference is clear in the opinion that partition couid be had in that suit if desired.

It is very well established that where tbe relief sought by a cross bill is such as can be granted upon the original bill and tbe answer thereto, a demurrer to tbe cross bill should be sustained. *Kilbreth*v. *Root,*33 W. Va. 600; *Scott*v. *Rowland,*82 Va. 484; *American & General Mortgage Corporation*v. *Marquam,*62 Fed. 960; *Wing*v. *Goodman,*75 Ill. 159; *Glenn*v. *Clark,*53 Md. 580; *Krueger*v. *Ferry,*41 N. J. Eq. *289432; *Thomas*v. *Thomas,*250 Ill. 354, 23 Am. *&*Eng. Anno. Cas. 344; 1 Bartom’s Chancery Practice (2nd ed.) p. 320.

The only question we have to determine, therefore, is whether the relief sought by the cross bill can be granted in the original suit upon the pleadings therein. It is insisted by the appellant that the relief they desire cannot be granted ' in that suit to the full extent that it is asked in the cross bill; that the interests of the parties in the subject-matter cannot be fully determined upon the pleadings in that suit, and that even if this could be done, still if the court should find that the property is not susceptible of partition in kind, it could not, upon thus finding, decree a sale of the property and a divisiou of the proceeds, nor could the court in that case, according to the contention of the plaintiffs here, properly protect their interests as the operators or lessees of the premises. No reason is perceived by us why the interests of the parties could not be as effectually determined in that suit under the pleadings as they could be in this. . It is true the plaintiffs in that suit -do not admit that the defendants are interested to the extent that they claim, but that fact can make no difference. . The plaintiffs in this -suit set up in their pleading fully their contention as to the ownership of the property, and the interests of .the respective parties therein. The defendants, likewise set up their contention in regard to these matters. All the parties interested are before the court, and the exact interest of each party in the subject-matter can be as fully determined there as it can anywhere else. Nor is there perceived any reason why the rights of the plaintiffs in this cross bill as lessees or operators of, the property cannot be as effectually protected there as they can be here. They are before the court, and the people adversely interested are before the court, and the court in that case has full jurisdiction to determine exactly what interest each party owns in this property, and decree accordingly. Neither is there any reason why the court upon the pleadings there cannot order a sale of the property should he find that the same is not susceptible of partition. *Hogan*v. *Ward,*87 W. Va. 682. In fact, it appears that before this appeal was ob-*290tamed the plaintiffs in this cross bill filed an amended and supplemental answer in the original suit setting- up all of the matters contained in their cross bill, and the court took jurisdiction thereof, and has referred the cause to a commissioner for the purpose Of taking evidence in order that he may determine the' interests of the parties in the subject-matter in advance of the entry of a decree fixing that interest, and directing partition of the land or a sale, in case partition in kind cannot be had.

We are of the opinion that there is no error in the decree of the circuit court dismissing the cross bill, and the •same is affirmed.

*Affirmed.*