1 Rob. 21 | Va. | 1842
It is necessary in the first place to consider whether the decree of March 1825 was final or interlocutory; for if final, we cannot enquire into its merits, more than three years having elapsed from the time of its rendition prior to the appeal, by which, under the law then existing, the right of appeal was barred : and it follows, in that view of the case, that the proceedings subsequent to that decree (which treated it as interlocutory), including the decree of March 1829 and the decree on the forthcoming bond, were erroneous and must be reversed. On the other hand, if the decree of 1825 was interlocutory, we must examine its merits, as also those of the subsequent proceedings.
A decree is final, when it either refuses or grants the redress sought by the party complaining. The plaintiff being the party who ordinarily seeks relief, the refusal of the court to allow it is usually accomplished by dismissing the bill. That of course terminates the cause, and sends the parties out of court. On the other hand, the case is also terminated by the granting of the whole relief contemplated by the court. In regard to that result, there can' be no summary form by which it is to be
To apjoly this criterion to the present case: The court treated the defendant Gilpin as standing in the attitude of plaintiff, and decreed to him against his adversary Cocke the balance found in his favour, and that in the event of nonpayment, Cocke's moiety of the Kentucky land should be sold for satisfaction thereof. Now, the relief in part contemplated by the court clearly was, that Cochis interest in the land should be sold without unnecessary sacrifice, which was the obvious interest of both parties, as it could not be foreseen that Gilpin was to become the purchaser. But how could this object be •accomplished, unless by the adoption of means to give to the purchaser at the sale the title which had been acquired by the parties ? It could not have been contemplated'by the court that the land should be sacrificed, by withholding the title from the purchaser, and giving the bidders to understand, not only that the officer authorized to sell was without authority to convey, but that the court had disrobed itself of the power to cause a conveyance to be thereafter made. Such was the inevitable result of regarding the decree for sale as the final action of the court; for it gave no authority to the
The structure of the decree, it is true, in some of its parts, would seem to indicate at first view that the court supposed it to be final. Thus the balance due to Gilpin is directed to be paid to him by the marshal out of the proceeds of the sale, and the residue, if any, to be paid to the plaintiff-; there is no direction to the marshal to report his proceedings to the court; and the costs of the suit are disposed of, by awarding them to be equally borne by the parties. But none of these circumstances, in my opinion, gave finality to the decree. Whatever may be thought of the expediency of disposing of the proceeds before a confirmation of the sale, it is certain that it would not deprive the court of its power to set aside the sale for irregularity or fraud ; though it might occasion obstacles to replacing the parties in their previous condition. So the omission to require the officer to report his proceedings is a mere informality, as an order of that kind must be regarded as merely directory, if it be the accustomed duty of such a commissioner to inform the court of what he has done under its authority, as I think there can be no doubt it is. And as to the disposal of the costs, that is a matter (as concerns this question) altogether equivocal; for the court has un
It is obvious that the whole apparent difficulty upon thi§- question has arisen from the omission in the decree, of a direction to the marshal to report his proceedings to the court. If that had been done, I presume no one would have questioned the interlocutory'character of the decree. And yet nothing is clearer to my mind than that such a direction in a decree would not make it interlocutory, if it gave final relief by its provisions; and so, on the other hand, that the omission of such a direction would not make a decree final, if by its provisions the relief was interlocutory. Such an omission is not an error of judgment in the court, requiring the correction of an appellate tribunal, but is rather in the nature-of a clerical misprision, which the court may at any time thereafter correct, and which in fact it does correct by its subsequent treatment of the decree as interlocutory.
I can perceive no inconvenience whatever from my interpretation of the decree in question. It certainly cannot operate so as to defeat the justice of this case; but on the contrary must have the effect of promoting it, if the decree be erroneous upon its merits. To
The practice of enrolment is unknown in Virginia, as are many other matters of practice in the multifarious and expensive system of the english chancery, requiring numerous officers, and calculated to promote accuracy and precision, and relieve the court from laborious details, by condensing and simplifying the questions submitted to its consideration. As we do not resort to the practice of enrolment, our course has been to look to the character of the decree, in reference to rehear
The result of our legislative policy on this subject has been, that as a general rule, the jurisdiction of the supreme appellate tribunal does not begin until that of the inferior court has terminated; that an appeal properly allowed brings into discussion before the appellate court all the previous proceedings in the cause; and that (pending an appeal, the further cognizance and proceedings of the court below are suspended in relation to any question involved in the cause, so far as its merits are concerned. -In these respects we have departed from the rules of the -english chancery. There, a decision of the chancellor which settles a principle, or ■gives relief to any extent, may be brought at once before the house of lords, if the decree-or order has been enrolled : there the discussion in the appellate forum is
It will be seen from an examination of the numerous decisions of this court on the subject of the finality of decrees, in reference to appeals, bills of review &c. that they have all been founded upon the idea, that a decree is not final unless the cause itself has been thereby terminated in the court below. Thus, though a decree decides upon the question of title, or otherwise settles the principles of the cause, Young v. Skipwith, 2 Wash. 300. Grymes v. Pendleton, 1 Call 54. M’Call v. Peachy, 1 Call 55. Bowyer &c. v. Lewis, 1 Hen. & Munf. 553.—though it dismisses the plaintiff’s bill as to one of two separate subjects of controversy, and as to the other also determines the rights of the parties, Templeman v. Steptoe, 1 Munf. 339.—though a decree nisi directs that the tract of land in the bill mentioned be surveyed and part thereof allotted to the plaintiflj and that the defendant shall execute to him a conveyance for such part, and pay the costs of the suit, Aldridge &c. v. Giles &c. 3 Hen. & Munf. 136.—though the decree directs the defendant to pay to the plaintiff hires to be ascertained by commissioners, and to deliver up the property, to be sold by the commissioners, and the proceeds applied to payment of the plaintiff’s claim and the costs of suit, and the residue, if any, to be paid to the defendant, Mackey v. Bell, 2 Munf. 523.—though, at the suit of creditors against executors and devisees, it empowers the executors to sell such of the lands held by the devisees, as,
On the other hand, there is no case decided by this court, in which the decree has been held to be final where the judicial action of the court in the cause has not been exhausted. I do not mean that it is necessary the court by its decree should respond to all the questions in controversy, or to the whole relief prayed in the bill, its silence being often equally emphatic; but that this court has never held, where a given relief was contemplated, that the decree was final, if something remained to be done in the cause to render it effectual. The case of Harvey & wife v. Branson, 1 Leigh 108. has been strongly urged upon us by the appellee’s counsel; but the principles of that case, in my opinion, are altogether different from those properly applicable to this. That case, and the case of Borden v. Bowyer &c. connected and determined with it, involved the distribution and appropriation of a fund arising out of the sales of detached fragments of what was originally an immense estate of unsettled lands, but the greater portion of which had been disposed of before the existence of the controversy. The suits were pending many years,
The other cases of decrees held by this court to be final require but little notice. Those of Sheppard's ex'or v. Starke & wife, 3 Munf. 29. and Thorntons v. Fitzhugh, 4 Leigh 209. turned upon reservations in the decree of a future resort to the court, which were decided not to affect their finality. That of Royall's adm'rs v. Johnson &c. 1 Rand. 421. presented the question whether a decree was final as to one defendant though interlocutory as to the rest; and it was, under the circumstances, decided in the affirmative. A similar question had arisen in the case of Alexander's heirs v. Coleman & wife, 6 Munf. 328. in which the result of the opinions of a divided court was that the decree, under the circumstances, was interlocutory. These cases, though cited in the argument, have no bearing upon the present, except so far as the reasoning of the judges may be supposed to throw light upon the general subject.
It seems to me that the effect of treating such a decree as the one in question as final, is to impair the controlling power of the court of original cognizance over the execution of its own decree; for it is obvious that it would be nugatory for that court to set aside a sale under the decree, however great the sacrifice, because of an objection arising out of a defect in the decree itself, without at the same time correcting the decree,
It has been suggested by one of the appellee’s counsel, that in relation to mortgages this court has departed from the english doctrine, according to which he supposes the decree for foreclosure to be final, and that the english rule was followed by the supreme court of the United, States, in the case of Ray v. Law, 3 Cranch 179.
If it should be supposed that purchasers under such a decree as the one we are considering would be liable to mischief by treating it as interlocutory instead of final, I w'ould remark that the mischief, in my apprehension, lies the other way ; for though the lapse of five years protects the decree, if final, from being reversed by appeal or bill of review7, yet within that period it is infallibly liable to such reversal, because fatally erroneous from its very finality; and if so reversed, the purchaser’s claim must, for the same reason, necessarily fall: whereas if the decree be interlocutory, the purchaser has nothing to do but to obtain a confirmation of the report and a conveyance of the title, in which aspect there is no error nor irregularity in the proceeding, and he is then protected against all other irregularities in the cause, if the proper parties having title to the subject be before the court; the rule being, that a purchaser has a right to presume that the court has taken the steps necessary to investigate the rights of the parties, and on that investigation has properly decreed a sale. 2 Smith’s Ch. Pract. 198. Bennet v. Harrell, 2 Sch. & Lef. 566. In fine, I cannot perceive the propriety of construing a decree to be final, and there
The foregoing views lead me to the conclusion that ° 0 the decree of March 1825 was interlocutory.
Upon the merits, that decree is clearly erroneous. [The judge here pointed out the errors, but the correction of them involved no such general principle as would make a particular report thereof necessary, or indeed proper. After stating the nature and extent of each of the errors so pointed out, he proceeded as follows :]
For these errors the decree of 1825, and the final decree of 1829 of which it forms the basis, ought, in my opinion, to be reversed, and the sale made under the former of Cocke’s moiety of the Kentucky land (which has never been confirmed) set aside, the property having been subjected for an improper amount, and purchased in by the appellee at a sacrifice. I cannot agree with the appellee’s counsel, that the infant heirs of Cocke not having appealed, the appellant has no right to complain of the improper sale of the land, on the ground that he has no interest in that matter. He has, as I conceive, an interest in it as the representative of his testator’s personal estate, which being liable to make up, for satisfaction of the decree, any inadequacy of the proceeds of the sale, must be prejudiced by a sacrifice of the land. Another fatal error in the proceedings subsequent to the interlocutory decree is, that the appellant is personally subjected to the payment of the balance found against his testator, upon an account of his administration not warranted by the pleadings in the cause. The effect of a revival of the suit as to him, if it had been regularly made (though there seems to have been no order of revival against, nor process of revival executed upon him), would have been only to authorize a decree against him de honis testatoris, for the balance ascertained against his testator, and not a de
My opinion therefore is, that the decrees of 1825 and 1829, and all proceedings under them, should be reversed and annulled, and the cause remanded in order to be proceeded in according to the principles above indicated.
Allen, J. concurred.
There certainly is an important difference between an interlocutory and a final decree; it needs no ghost to tell us that: but what that difference is, is the question. I think a decree which settles all matters in controversy in the pleadings, and gives the costs, is a final decree. Any thing else which is necessary to execute the decree does not change its character : it may be necessary to come back to the court for its order, to perfect the execution of the decree, but that does not affect its finality. The case of Harvey & wife v. Branson, 1 Leigh 108. was a case in which a commissioner was appointed by the court to sell the unsold lands &c. and leave was reserved to the parties, at any time whatever, to apply to the court to supersede the appointment of the commissioner to make sale of the lands, or to appoint any other commissioner or commissioners to act with or succeed him, or to have the unsold lands divided among the parties: manifestly leaving much more to be done by the court in the execution of the
The great injury to the public in considering such decrees as the one before us to be interlocutory, consists in almost forbidding persons to purchase property under them, and in lessening the value of such property. The legislature has wisely limited appeals from final decrees to a shorter period than writs of error and supersedeas in the case of judgments at law; and I think, where property is sold under interlocutory decrees, the time ought to be as short as in the case of final decrees ; for if they are left open for almost an indefinite time (as in the present state of the delays in court) the lite pendente purchaser must be in a very precarious state as to his purchases.
I know that decrees for the forelosure of mortgages, in which a sale of land was directed, have been held, upon very early authority in this court, to be interlocu
It is said that the decree before us is interlocutory, because the chancellor failed to appoint any one to divide the funds of the partnership. But the decree was that they should be divided; and if the parties disagreed as to the division, and failed to fulfil the decree in that respect, it was the common case of a failure, which was to be remedied by an order of the chancellor. As to the defect in the decree in not directing the marshal to convey the land, I think the direction to sell implied the power to convey; but if not, it was an error in the decree which did not change its character. I am of opinion that the chancellor might at any time have directed the conveyance to be made, it being in execution of the decree to sell.
I. think, however, that there was no power to convey title to land in a foreign state, by virtue of our law's, by the appointment of a commissioner, and that Gilpin ought to have been decreed to convey the title. In such cases the court can only act on the parties.—But there are many errors in the decree. The only point I mean to decide is, that it is a final and not an interlocutory decree; and as the appeal was allowed after the expi
The great question in this case is, whethej. decree of the 26th of March 1825 be final or interlocutory.
In determining this question, we must be guided by the decisions of our own court, rather than those of England or of the United States, or of our sister states.
I am of opinion that the decree is interlocutory.
In Harvey & wife v. Branson, 1 Leigh 108. judge Carr said: “All decrees are either interlocutory or final. There is no middle class. In the progress of a cause, it often becomes necessary to make orders of different kinds, in order to enable the court to come at the whole case, or to settle the details after the principles of the cause are decided. All these are interlocutory orders or decrees. But when a decree makes an end of a case, and decides the whole matter in controversy, costs and all, leaving nothing farther for the court to do, it is certainly a final decree.”
Let us try this case by this test.
This suit was brought by Cocke against Gilpin for the purpose of settling a mercantile partnership which had existed between them, and for the farther purpose of recovering from Gilpin a part of a tract of land in Kentucky, which Gilpin had purchased with the funds of the copartnership, and for which he had taken a conveyance in his own name. In the progress of the cause, the accounts between the parties were settled, and a balance having been found due from Cocke to Gilpin of 5701 dollars 39 cents, with interest on 3361 dollars 70 cents, part thereof, from the 31st day of December 1822 till paid, Cocke was directed to pay the same accordingly; and the chancellor being of opinion that the land was partnership property, the decree went on to direct, that on Cocke’s making the payment aforesaid, Gilpin
Let us pause here, and apply judge Carr's test to this portion of the decree; premising that the character of a decree, as interlocutory or final, is to be determined by the terms and provisions of the decree itself, and not by matters dehors the decree, or by matters occurring or appearing subsequent to it. This principle was laid down by judge Tucker, delivering the opinion of the court, in Hill's ex'or v. Fox's adm'r, 10 Leigh 587.
There is nothing in the decree which shews the value of the Kentucky land. A moiety of it, for aught that appears in the decree, may have been of far greater value than the amount of money due from Cocke. Indeed the decree itself, in a subsequent part of it, directing a sale, contemplates the possibility of a moiety of the land selling for more than that amount, and directs the excess to be paid to Cocke. But however that might be, Cocke undoubtedly had a right to pay the money, and to demand from Gilpin a conveyance of the moiety of the land, whatever might be its value. Suppose he had done so, and that Gilpin had refused to make the conveyance: how could obedience to this part of the decree be enforced ? Certainly by no other means than by an attachment, which could not issue but on the order of the court. And this proves the decree to be interlocutory. The case of Hill’s ex'or v. Fox's adm'r, just cited, is a direct authority to this point. The material question in that case was as to the character of the decree. Indeed all the other questions depended upon the solution of that. The opinion of the court was delivered by judge Tucker; and it is so lucid and strong, and at the same time so applicable in several respects to the case before us, that I beg leave to insert the following passages from it. “It is,” says the judge, “a decree, indeed, against Nathaniel Fox for a sum of money; but it farther provides that if no property of his
If the decision in Hill’s ex’or v. Fox’s adm’r be law, it is absolutely decisive of the case before us. The provision in this case, that in a certain event Gilpin should convey the land to Codee, is similar to the provision in Hill’s ex’or v. Fox’s adm’r, that in a certain event Fox should deliver the property to the marshal. It could only be enforced by attachment, which could not be obtained but by application to the court, and by shewing that the event had happened on which the deed was to be made : and in the emphatic language of the opinion of the judge, “ the cause never could be said to be out of the possession of the court, so long as its direct action might be called for to compel” the conveyance of the land.
If it be said that in that case the marshal, to whom the property wras to be delivered for sale, was to report his proceedings to the court, I answer, that no regard whatever was paid to that circumstance, and that the decision is founded exclusively upon the circumstance that obedience to the decree could be enforced only by attachment.
I would farther remark that the case of Hill’s ex’or v. Fox’s adm’r is among the latest that have been decided on this subject, and is long subsequent to that of Harvey & wife v. Branson, on which the counsel for the appellee so strongly relied, but which, I shall hereafter endeavour to shew, is quite distinguishable from this.
I conclude, therefore, that that part of the decree on which I have commented is interlocutory in its character.
But let us proceed to other parts of the decree.
It next directs that if Cocke shall not, within six months, pay to Gilpin the sum of money with interest decreed against him, the marshal of the court, after having advertised the time and place of sale for six wmeks in some one of the newspapers published in the city of Richmond, shall expose to sale at public auction to the highest bidder, for cash, one equal but undivided moiety of the Kentucky land, and out of the proceeds of sale, after defraying the expenses attending the same, shall pay to Gilpin the sum of money with interest as aforesaid, and the residue, if any, shall pay to the plaintiff Cocke. Now it is obvious that this decree for the payment of money, and, in default of such payment, for the sale of land and for the application of the pro
Besides, the marshal is directed “ to expose to sale,” not to conveij the land. To “ expose to sale” is one thing; to transfer and convey the title is another. The former may safely be confided to the marshal; the latter should be directed by the court, after it has affirmed the sale. And such, I believe, has been the general if not the universal practice, except perhaps in a single case, which will be hereafter noticed. Even in England, a decree for the sale of land is not regarded as final until the confirmation of the sale by the court; as is abun
Another part of the decree directs that the outstanding debts of the firm shall be divided between the parties to the concern. Can it be believed that the court intended this part of the decree to be final ? The evidences of the debts, it is to be presumed, were in the hands of Gilpin ; since he had been entrusted with their settlement and collection. Did the court mean to give to him, one of the parties interested, the same unlimited power as to the division of the debts, as has been claimed for the marshal in relation to the sale of the land ? This can hardly be pretended. And if he was not to divide them, who was ? Nobody is mentioned in the decree. This part of the decree, then, can only be regarded as an expression of opinion on the part of the court, as to what ought, to be done with the outstanding debts ; as a declaration or settlement of one of the principles of the case; leaving for adjudication, in some future stage of the cause, the manner in which that principle should be carried out.
It is apparent then, from every part of this decree, that the convenience and interest of the parties, and the very justice of the case, required the future action of the same court which pronounced it. Why should we deprive that court of the power of this necessary action, by pronouncing the decree final and not interlocutory ? It is said that that court intended, by the decree which it pronounced, to make an end of the cause, and to put the parties out of court. If that was the intention of the court, we might be compelled to regard the decree as final. But where is the evidence of such intention ? I think I may say confidently that no such intention is expressed. What are the circumstances from which it may be inferred ? I am unable to perceive any
As to the failure to direct the marshal to report: Although the order to report would be conclusive evidence of an intention in the court to take future action in thé case, yet it does not follow that the omission to make such an order is evidence of intention not to proceed farther in the cause. The omission may have proceeded from mere inadvertence on the part of the court ,* or from the reflection that the marshal would be bound to report, although the decree contained no positive order. Look at the inconvenience which might result to the parties. The marshal may abuse the authority,committed to him, and may make a sale which justice to all parties would imperiously require to be set aside. Yet if the decree be final, that measure of justice could only be effected by an appeal to this court, or by a new suit brought for the purpose. I cannot impute such gross error to the court below, on mere inference.
I have a word only as to Harvey & wife v. Branson. I have no doubt of the correctness of the decision ; but it has no application to this case. In addition to the particular circumstances mentioned by judge Balclwin, the express reservation of liberty to the parties to apply to the court to supersede the commissioner, &c. proves that the court intended to put an end to that cause, and to put the parties out of court, by pronouncing a final
Upon the whole, I am clearly of opinion that the decree of the 26th of March 1825 was only interlocutory. And this opens the door to an examination of the alleged improprieties of that decree. As to them, I concur in the opinion delivered by judge Baldwin.