A decree is not final within the meaning of the act conferring
appellate jurisdiction unless upon its affirmance nothing remains
but to execute it. The court therefore dismisses an appeal by the
defendant in a foreclosure suit from the decree therein rendered,
which neither finds the amount due nor orders the sale of the
mortgaged property, although it overrules his defense, declares the
complainant to be holder of the mortgage, and, in order to
ascertain the amount due him and other lien creditors, and for
taxes, refers the case to a master, and appoints a receiver to take
charge of the property.
This is an appeal from the following decree in a suit for the
foreclosure of certain deeds of trust in the nature of mortgages to
secure the payment of money:
"The cause came on to be heard upon the pleadings and proofs
therein, and having been submitted by the counsel of the respective
parties and duly considered by the court, and it appearing to the
court that said defendant, Albert Grant, is not entitled to any
relief under his cross-bill in this cause; that the plaintiff is
the holder and owner of the several obligations of said Grant,
secured by the deeds of trust on the real estate prayed in the
original bill of complaint herein to be sold for the payment of the
indebtedness thereon, and mentioned
Page 106 U. S. 430
and set forth in the third, fourth, fifth, sixth, seventh, and
eighth paragraphs of said bill, that said Grant has made default in
the payment of his said obligations, on which he is indebted to the
plaintiff in large sums of money, with long arrearages of interest,
that said Grant has not paid taxes on said real estate for a number
of years, and the same are in arrears for upwards of $20,000, that
said indebtedness of said defendant, Grant, to the plaintiff
largely exceeds the value of said real estate, and that the
plaintiff has no personal security for its said debt, it is this
second day of March, A.D. 1882, ordered, adjudged, and decreed that
this cause be, and the same hereby is, referred to the auditor of
the court to state the account between the plaintiff and the
defendant, Albert Grant, the amount due under said several deeds of
trust on said real estate prayed to be sold in said bill, the
amounts due said judgment and mechanic's lien creditors referred to
in said bill, whether the same are liens upon any of said real
estate, the relative priorities of the claims of said creditors and
the plaintiff, and the value of the said real estate -- all from
the proofs in this cause, except as to said mechanic's lien -- and
report the same to this Court. And said auditor shall further
ascertain and report to this Court the amount due for taxes in
arrears on said real estate, and whether the same or any part
thereof has been sold for taxes, and if so, when, for what taxes,
for what amount, and to whom."
To this was added an order appointing a receiver to take
possession of the property, make leases, etc.
MR. CHIEF JUSTICE WAITE delivered the opinion of the Court.
A motion is now made to dismiss because the decree appealed from
is not a final decree.
The rule is well settled that a decree, to be final within the
meaning of that term as used in the acts of Congress giving this
Court jurisdiction on appeal, must terminate the litigation of the
parties on the merits of the case, so that if there should
Page 106 U. S. 431
be an affirmance here, the court below would have nothing to do
but to execute the decree it had already rendered. This subject was
considered at the present term in
Bostwick v. Brinkerhoff,
ante, p.
106 U. S. 3, where a
large number of cases are cited. It has also been many times
decided that a decree of sale in a foreclosure suit, which settles
all the rights of the parties and leaves nothing to be done but to
make the sale and pay out the proceeds, is a final decree for the
purposes of an appeal.
Ray v. Law, 3
Cranch 179;
Whiting v. Bank of the United
States, 13 Pet. 6;
Bronson v.
Railroad Company, 2 Black 524;
Green v.
Fisk, 103 U. S. 518. But
in
Railroad v.
Swasey, 23 Wall. 405, it was held that
"to justify such a sale without consent, the amount due upon the
debt must be determined. . . . Until this is done, the rights of
the parties are not all settled. Final process for the collection
of money cannot issue until the amount to be paid or collected by
the process, if not paid, has been adjudged."
In this, the Court but followed the principle acted on in
Barnard v.
Gibson, 7 How. 650;
Humiston
v. Stainthorp, 2 Wall. 106;
Crawford v.
Points, 13 How. 11, and many other cases.
The present decree is not final according to this rule. It does
not order a sale of the property. It overrules the defense of the
appellant as set forth in his cross-bill, and declares that the
appellee is the holder and owner of the debt secured by the deeds
of trust, but refers the case to an auditor to ascertain the amount
due upon the debt, the amount due certain judgment and lien
creditors, the existence and priorities of liens, and the claims
for taxes. It is true that the court finds the amount due the
appellee largely exceeds the value of the property, but this is
only as a foundation for the order appointing the receiver. If in
point of fact it is not true, the finding will not conclude the
parties in the final closing up of the suit. The order for the
delivery of the property is only in aid of the foreclosure
proceedings, and to subject the income, pending the suit, to the
payment of any sum that may in the end be found to be due. If
anything remains, either of the income or of the proceeds of the
sale after the mortgage or trust debts are satisfied, it will go to
the appellant notwithstanding what has been decreed. There is no
order as in
Forgay v.
Conrad, 6 How.
Page 106 U. S. 432
201;
Thomson v.
Dean, 7 Wall. 342, and other cases of a like
character, adjudging the property to belong absolutely to the
appellee and ordering immediate delivery of possession. In
Forgay v. Conrad, supra, which is a leading case on this
question, it was expressly said by Chief Justice Taney (p.
47 U. S. 204)
that the rule did not extend to cases where property was directed
to be delivered to a receiver. The reason is that the possession of
the receiver is that of the court, and he holds, pending the suit,
for the benefit of whomsoever it shall in the end be found to
concern. Neither the title nor the rights of the parties are
changed by his possession. He acts as the representative of the
court in keeping the property so that it may be subjected to any
decree that shall finally be rendered against it.
Appeal dismissed.
