54 Ala. 50 | Ala. | 1875
The appeal as now prosecuted proposes to reverse only the decree of the chancellor overruling the demurrer to the original bill, though as we shall endeavor to show a final decree has been rendered on the pleadings and proof, not only overruling the demurrer, but adjudging the equities against the appellants. The counsel for the appellants, very properly conceded, on the argument of the motion to dismiss, that it must prevail, if the decree rendered was final.
The test of the finality of a decree, so as to support an appeal, which our decisions have prescribed, is, not whether the cause is still in progress in the court of chancery, awaiting further proceedings, which may be necessary to entitle the parties to the full possession and enjoyment of the rights it has been declared they have; but whether a decree has been rendered settling these rights. If these are settled by the decree, though a reference to the. register may be necessary, and may be ordered, to ascertain the amount due from one to the other, on the basis of the rights as adjudged, the decree is final, and will support an appeal. In Bradford v. Bradley, 37 Ala. 453, a bill had been filed by cestui que trust against the trustee, for the recovery of slaves, the trust property, and an account of hires. The trust was denied, and a hearing was had on the pleadings and evidence, and a decree rendered that the complainant was entitled to recover all the slaves but one, and the defendant was ordered to deliver them to her in thirty days, and a reference to the
The statute, (except in a few particular cases), limits an appeal to a final judgment or decree. — R. C. § 3485. Under such statutes, the words “ final judgment or decree,” are not taken in their strict, technical signification, as importing a decree that conclusively and finally determines all the matters in controversy, and disposes entirely of the cause.—2 Dan. Ch. Pr., note 3, 996. When the decree is final upon merits, and ulterior proceedings are contemplated, and necessary only as a mode of executing it, an appeal will lie from it. A decree of foreclosure and sale of mortgaged premises, is a final decree supporting an appeal, and the party against whom it is rendered need not await the sale, its report, and confirmation. For of the possession of the premises he may be deprived, or if not, and the sale shpidd be made to a stranger to the proceedings, the reversal of the decree would not divert the title of tbe purchaser, and thus irreparable in
The theory of the complainant’s bill is, that their mother, during her life, held the lots of land in controversy in trust for her own and their use,; that on her death the trust terminated and they became entitled to the possession and enjoyment of the premises. The prayer is, that the trust be established, and the complainants let into possession of the premises — the rights of their father, George Wilson, if any he had, determined and adjusted, and an account of rents and profits, and for general relief. The cause was heard on pleadings and proofs. The chancellor rendered a decree, declaring the bill contained equity. Next, that a deed of trust made by the father and mother of complainants, no reference to which is made in the bill and which is introduced only in the answers, was invalid as a security for future advances — and that as a conveyance by the mother (though its validity was not put in issue by any allegations in the pleading,) was void as to her, because executed under duress. A demurrer to the bill is overruled. A reference is ordered to a special master to ascertain how much was the existing indebtedness the deed of trust was intended to secure, and how much of it, if any, is unpaid. The sale which had been made under the deed of trust, and under which the respondents deduced title, is declared null and void. A reference was also ordered to ascertain the rents and profits during the time the respondents had occupied the premises, and the value of the improvements which had been made on them, with the amounts paid for taxes. The tenants in possession were ordered to pay into court all rents due and unpaid, or to become due; and- one of the respondents was decreed to pay the costs which had accrued, for which execution was directed to issue. The decree concludes: “ Ail points and questions not herein expressly decided, are reserved to the final decree.” It may be said of this decree, as was said of the decree in Bank of Mobile v. Hall, supra, it' “ is not véry formal, but in a court of phancery, substance is regarded, and not form. The intention of the chancellor can not be mistaken.” The whole point of controversy between the parties, was, whether the complainants, or the defendants, had paramount title to the premises. The title of the defendants depended wholly on the sale under the trust deed. When, therefore, it was decreed the bill contained equity, and that the sale under the trust deed was void, the merits of the pase were adjudged against the defendants, Whatever ulte
It was very forcibly said by Chief Justice Taney, in Forgay v. Conrad, supra, that as an appeal from an interlocutory decree, in the practice of the courts of chancery of the United States, differing in this respect from the English court of chancery, was not allowed, it was better for the court simply to announce in an interlocutory decree, the opinion formed as to the rights of the parties, and the decree it would finally pronounce, but withholding a final decree, granting relief until the reference, if any were necessary, could be had; thus adjudicating in one final decree, every matter which should be disputed, and rendering the whole revisable on one appeal, if either party should feel himself aggrieved. The cause would be thereby kept under the control of the court, and there would be but one decree, giving the parties the full and entire benefit of the judgment of the court.
We are constrained to treat the decree as final, adjudging the equities, so as to be incapable of change by the chancellor in the further progress of the cause. If two years should elapse before the matters of account referred to the register are finally settled, as in Bradford v. Bradley, supra, an appeal taken from the decree rendered on them, would not open for revision the matter of the present decree. The statute of limitations could be invoked to bar its revision. It follows the motion to dismiss must prevail. The appellants will be allowed, however, to amend their appeal so as to prosecute it from the entire decree, and a certiorari will be awarded them to bring up a full and complete transcript of the record.