delivered the opinion of the' court.
Describing the decree of May 4, 1878, as “interlocutory,” and that of November 30, 1887, as “ final/’ appellаnt assigns errors as follows : That the decree of May 4 is. erroneous, because it in effect overruled the demurrer to the bill; and denied appellant’s motion to file its amended and supplеmental answer; and that the decree of November 30, 1887, is erroneous, because (1) it rejeсted the petition for a rehearing; (2) held the déed of November 20, 1876, valid; (3) overruled appellant’s exceptions to the master’s report; (4) held that the deed to plaintiffs had priority over thаt of October 11, 1875;
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(5) held that the dejbt of appellant was not entitled to priority . under the provisiоns of the deed to plaiñtiffs; and because (6) it should have held that the appellant was entitled to the fund in controversy,, if for no other reason, upon the ground of its judgment obtained after Glendy had acquired the legal title to the land. If the decree of May 4, 1878, were final, no errors can now be assigned to it or considered upon this appeal. And if that decree, being final, covered all the grounds of error urged to the decree of November 30, 1887, then the latter decreе must necessarily be affirmed. The ápplication for a rehearing was confessedly made after the adjournment of the May term, at which the prior decree was entered, and too lаte if that decree were final. Equity Rule 88;
McMicken
v. Perin,
The controversy raised by the pleadings and to be determined by the court was whether the property passed under the deed to plaintiffs, or under that tо Mathews and whether the bank was entitled to priority. The effect of the sale by consent was mеrely to substitute the fund in place of the real' estate and did not change the issues. On behalf of thе bank it was claimed that the trust deed to the plaintiffs was void on its face, and that by the terms of that dеed, if valid, the debt of the bank was preferred. By the amended and supplemental answer, which it sought to file, the bank raised the question that Glendy, not having the legal title when he exécuted the ■deed to the plaintiffs, and having by his prior deed to the bank divested himself of his equitable title, the plaintiffs did not, as Glendy’s grantees, under a conveyance “ without any warranty whatever,” occupy the positiоn of Iona fide purchasers, nor were they protected by 'the recording statutes of the , State; and thе facts set forth therein involved, moreover, the position urged in the petition for rehearing, that the deed to the plaintiffs being simply a grant without covenants, Glendy’s after-acquired legal title' did nоt enure to them and that the bank became entitled to. the fund by virtue of its judgment, which was recoverеd after Glendy acquired' the legal' title. *452 So that all these matters were necessarily passеd upon by the court and the decree in terms declared that the facts stated in the amended and supplemental answer did not change the rights of the parties in the cause, made the injunсtion perpetual and directed the fund to be brought into court for distribution “in accordance with the provisions of the deed of Eobert J. Glendy to Hugh W. Sheffey and James Bumgardner, Jr., bearing date on the 20th day of November, 1876.” This finally determined the entire controversy'litigated between the parties аnd nothing remained but to carry the decree into execution. The bringing of the fund into court was for thе final distribution as decreed, and not to be held pending the ascertainment of the-principles upon which it should be distributed. Hill v. Chicago & Evanston Railroad Co., ante, 52, and cases cited. •
The subject was much considered and many cases referred to and сlassified and the distinctions indicated, in
Keystone Iron Co.
v.
Martin,
It is true, as pointed oijt by Mr. Justice.Field in
Hill
v.
Chicago & Evanston Railway, supra,
that an appeal may be taken from a decree in an equity cause, notwithstanding it is merely in execution of a prior decreе in the same suit, for the purpose of correcting errors which may have originated in the subsequent proceeding. This was so held in
Chicago & Vincennes Railroad
v.
Fosdick,
But the errors assigned herе relate solely to matters included within the adjudication of May 4, 1878, except as the refusal tо permit the petition for rehearing to be filed may be otherwise regarded, though that petitiоn was itself predicated upon one of the aspects of the controversy. And as to that allega
*453
tion of error, we bave already seen that the objection is not well taken, even if open to consideration at all.
Brockett
v. Brockett,
Decree affirmed.