When a mandate of this Court, made after hearing and deciding an
appeal in equity, directed such further proceedings to be had in
the court below as would be consistent with right and justice and
that court thereafter made a decree which prejudiced the
substantial rights of a party to the suit in respect of matters not
concluded by the mandate or by the original decree, its action
touching such matters is subject to review, upon a second
appeal.
This suit involved the title to that part of square 223, in the
City of Washington, designated as lot 7 at the southwest corner of
New York Avenue and Fourteenth Street. Its building line on the
avenue was about 152 feet and 9 inches in length, and on Fourteenth
Street a little less, while the south line, which was at right
angles with Fourteenth Street, was about 100 feet, and the west
line, which was at right angles with the avenue, was about 97 feet
5 inches, in length. In June or July, 1864, the lot was subdivided
by Brooke Mackall, Jr., under whose control it then was, into five
smaller lots, each fronting on New York Avenue. This subdivision
was not recorded in any public office, but a rough plat of it,
exhibited in the record, appears upon the books of Mr. Forsythe, a
surveyor and civil engineer, who made it at the instance of
Mackall.
In the same year, shortly after this subdivision, Mackall
commenced the erection of a building at the southwest corner of the
Avenue and Fourteenth Street, known as Palace Market. That
building, he testified, was "to cover two of the sub-lots on New
York Avenue." In 1867, Plant and Emory, having furnished materials
and performed labor on the building, commenced
Page 112 U. S. 370
suits at law in the Supreme Court of this District to enforce
liens for the amount of their claims, and each obtained judgment
therefor against Mackall. The part of lot 7 upon which Plant
asserted a lien is thus described in his declaration:
"Beginning for the same at the northeast corner of the said
square; running thence south 44 feet; thence west to the west line
of the said lot; thence, in a northerly direction with the west
line thereof, to the north line of the said lot, and thence, in a
northeasterly direction with the said north line, to the place of
beginning."
The description in Emory's suit is this:
"Part of lot 7, in square No. 223, beginning for the same at the
northeast corner of said lot, and running thence south 44 feet;
thence west to the west line of said lot; thence, with a line at
right angles to New York Avenue, to the north line of said lot, and
thence, in a northeasterly direction with the said north line, to
the place of beginning."
Subsequently, A. & T. A. Richards obtained judgment in the
same court against Mackall for $897.42, with interest and costs,
execution upon which was levied on the same property on which Plant
and Emory claimed to have liens. Under executions in favor of these
several creditors the property was sold by the marshal. Alfred
Richards became the purchaser at $2,500, and received a conveyance.
The proceeds of the sale were sufficient to discharge in full the
claims of Plant and Emory, and $646.89 of the judgment obtained by
A. & T. A. Richards.
This suit was brought in 1871 by A. & T. A. Richards, a part
of whose judgment remained unpaid, and other judgment creditors of
Mackall, for the purpose of subjecting to the claims of themselves
and other creditors who might become parties and share the expenses
of the litigation, such part of lot 7 as remained
"after taking or carving out therefrom the aforesaid piece or
part thereof so as aforesaid taken, sold, and conveyed by the
marshal of the District of Columbia to Alfred Richards,"
etc. The bill sets forth that the title to the lot is really in
Mackall, but that, for the purpose of hindering and defrauding his
creditors, he withholds all evidence of it from the public records
of the district. The prayer is that he be
Page 112 U. S. 371
required to discover and place on record all conveyances, or
other evidences of his title, and that the remainder of lot 7, not
sold by the marshal to Richards, be sold, and the proceeds applied,
first, to the discharge of existing encumbrances, and then to the
judgments of complainants.
Such proceedings were had that, by final decree in special term,
on the first day of May, 1873, it was adjudged that the title
"to all of lot numbered 7, in square numbered 223, in the City
of Washington, not heretofore sold by the marshal of the District
of Columbia to the complainant Alfred Richards, is vested in the
defendant Brooke Mackall, Jr., and that the same be sold,"
&c. Trustees were designated by whom the sale should be
conducted. That decree was affirmed in general term. Upon appeal to
this Court, the decree in general term was itself affirmed, without
modification, and the cause remanded for such proceedings as would
be consistent with right and justice. In this Court, the only
dispute was as to the sufficiency of the evidence to show title in
Mackall, and no question was made as to the indefiniteness of the
description of the interest or property decreed to be sold, or as
to the validity of the marshal's sale.
Subsequently, the trustees named in the original decree executed
the order of sale and made report of their acts; but, upon
exceptions filed, the sale was, on July 24, 1877, set aside, the
order providing that before sale can be made "the amount to be sold
must be definitely ascertained by some proper legal procedure." The
sale was set aside partly because it appeared upon the hearing of
the exceptions that the trustees announced at the biddings that
they did not know, and did not undertake to state, what were the
precise lines or boundaries of the ground to be sold, and would not
undertake to do more than sell such part of lot 7 as was outside of
that embraced by the marshal's deed to Alfred Richards, leaving
purchasers to find out as best they could the extent of their
purchase. Bidders were informed that,
"whether the south line of Richards' purchase runs southwesterly
from the front or southeast corner of the building along the line
of the fence . . . parallel to and 44 feet from New York Avenue, or
whether it runs due
Page 112 U. S. 372
west along the south side of the building to its rear end, and
from thence westerly to the rear end of the lot, is a legal
question which the trustees do not undertake to determine."
By an order entered July 13, 1878, the cause was referred to a
special auditor to report
"the proper metes and bounds of that portion of lot No. 7, in
square 223, which was sold by the marshal of the District of
Columbia to Alfred Richards, and also that other portion of said
lot not so sold, and which is directed by the decree in this case
to be sold by the present trustees."
He reported that, upon examining the testimony, the proceedings
in the mechanics' lien suits, the returns upon the executions under
which Richards had purchased, the advertisement of sale, and the
marshal's deed of conveyance, he could not reach a conclusion as to
how much ground was intended to be sold or conveyed to Richards.
Exceptions by the complainants to this report were sustained, and
the court, "proceeding to determine the said boundaries in
accordance with the said order of July 24, 1877," directed the
trustees to sell, in accordance with the terms and provisions
thereof, all that portion of lot 7 lying south of a line drawn from
a point on Fourteenth Street 44 feet south of the northeast corner
of said lot, and running thence parallel with New York Avenue to
the west line of lot 7. This order was made "without passing upon
the validity of the said marshal's sale." A similar decree was
passed in general term, accompanied by a recital that it should be
construed "as not determining any question of title to any portion
of said lot 7 lying north of said line." The present appeal is from
the latter decree.
Page 112 U. S. 373
MR. JUSTICE HARLAN delivered the opinion of the Court. He stated
the facts in the foregoing language, and continued:
The action of the court below directing the sale of only so much
of lot 7 as lies south of a line running from a point 44 feet south
of its northeast corner parallel with New York Avenue to the west
line of the lot, leaving undetermined the question of the title to
that part of the lot lying north of that parallel line, is subject
to review, upon this second appeal, if, as appellant contends, the
proceedings, subsequent to the decision here, are erroneous and
prejudicial to his substantial rights in respect to matters not
concluded by the original decree. His claim is that the natural and
established front of lot 7 is on New York Avenue, and that the sale
of the piece south of the said parallel line, separately from the
ground north of it, will materially, as well as needlessly, impair
the value of both, especially the former. We are of opinion that
this claim is, in all respects, well grounded, and that the
appellant is entitled to a reversal, unless it appears from the
record that the ground north of the said line running from
Fourteenth Street parallel with New York Avenue -- which ground
was, in effect, withdrawn from the operation of the original decree
-- was embraced by the sale of the marshal to Richards. Unless sold
heretofore by the marshal, it is covered by the original decree,
which this Court affirmed.
The question as to what part of lot 7 was not sold by the
marshal to Richards is attended with difficulty and
embarrassment.
Page 112 U. S. 374
But it is one which the court below was bound under the issues
to determine, in order that its decree of sale might be properly
executed. Upon examination of the marshal's advertisement of the
sale at which Richards purchased, and of the deed which the latter
received, we find no such description of the property sold and
conveyed as will certainly embrace that part of lot 7 which lies
west and westerly of the building erected at the corner of New York
Avenue and Fourteenth Street, and north of the line described in
the final order as commencing from a point on Fourteenth Street 44
feet south or the northeast corner of said lot, and running thence
parallel to the line of New York Avenue to the west line of said
lot. The advertisement of sale thus describes that part of lot 7
then proposed to be sold:
"Beginning at the northeast corner of said square [223] and
running thence south 44 feet; thence west to the west end of the
lot; thence in a northerly direction with the west line thereof to
the north line of said lot; thence with said north line to the
place of beginning."
The description in the marshal's deed to Richards is the same as
that in the advertisement of sale, except that instead of the
words, "thence west to the west end of the lot," the call in the
deed is, "thence westerly to the west end of the lot." The line
running south from the northeast corner of the lot along Fourteenth
Street is aptly described. But what is meant by the words "west to
the west end of the lot" in the advertisement of sale? If by "west
end of the lot" is meant its northwest corner where its west line
meets New York Avenue, and if by "west" is meant due west, then a
line running due west from Fourteenth Street will not strike the
west end of the lot, but will intersect New York Avenue some
distance northeast of the northwest corner of the lot. Further, if
"west to the west end of the lot" means "westerly to the west end
of the lot," then there would be left outside of the ground upon
which the building stands, and north of the line thus drawn, a
narrow, irregular slip of ground, diminishing in width as the line
runs westerly, and which it cannot be supposed it was within the
contemplation of the marshal, or of any of the parties interested,
to sell.
Page 112 U. S. 375
But we do not suppose that by "west end of the lot" was meant
its northwest corner, where its west line meets New York Avenue,
because the next call which appears in the levies, in the
advertisement of sale and in the marshal's deed -- "thence in a
northerly direction with the west line thereof to the north line of
said lot" -- would then be meaningless. We incline to think that by
"west end of the lot" was meant "west line of the lot." Such, as we
have seen, is the call in the mechanics' lien suits. This would
make intelligible the succeeding call, "thence in a northerly
direction with the west line thereof." But even this interpretation
does not dissipate the confusion which arises from these
inconsistent descriptions of the property; for, if the line
starting from Fourteenth Street is run due west, it will not strike
any point in the west line of the lot. And if it be run westerly,
which may mean north of west or south of west, to what point on the
west line of the lot must it be run? The appellee contends that it
should be run parallel with New York Avenue. The answer to that
suggestion is that the descriptions in the lien suits, in the
levies, and in the marshal's advertisement and conveyance will be
satisfied by running north or south of that parallel line to anyone
of numerous points on the west side or line of the lot.
We are here met with the suggestion that the sale was made in
discharge of certain mechanics' liens, and that the description of
the property in the marshal's advertisement and deed should be held
to include all the ground which could have been included under the
laws in force in this district on the subject of such liens. That
law provides, in respect of a building in the City of Washington or
Georgetown, that
"the ground on which the same is erected, and a space of ground
equal to the front of the building and extending to the depth of
the lot on which it is erected, shall also be bound by the said
lien,"
subject to the condition that the land at the time of the
erection or repair of the building, is the property of the person
contracting for such erection or repairs. R.S.Dist.Col. ยง 704, 11
Stat. 377.
The argument implies that the statute gave a mechanic's lien
Page 112 U. S. 376
upon so much of the lot as would constitute a parallelogram
bounded on the east by the line of 44 feet on Fourteenth Street, on
the south by a line parallel with New York Avenue, on the west by
the west line of the lot, and on the north by the line of New York
Avenue. But the inherent difficulty in this view arises from the
description in the marshal's advertisement and in his deed for the
property actually sold and conveyed. That description will not
cover the ground included in the supposed parallelogram. Further,
if the front of the building is conceded to be on Fourteenth
Street, the lot over which the statute extended the mechanic's lien
would not be the ground between New York Avenue and a line running
parallel with and 44 feet from it. In such case, the ground covered
by the lien would rather be that which lies north of a line
commencing 44 feet south of the northeast corner of the lot, and
extended at right angles from Fourteenth Street until it strikes
New York Avenue. But a conclusive answer to the suggestion, based
upon the mechanic's lien law, is that, so far as the record
discloses, Plant and Emory did not, when enforcing their claims,
assert a lien upon the ground within the beforementioned
parallelogram.
We are of opinion, upon the whole case, that the record fails to
show that any part of lot 7, outside of the piece upon which the
building at the northeast corner of the lot stands, was sold or
conveyed by the marshal to Richards; consequently, for the purposes
of this suit, and as between the parties thereto, all of lot 7,
except the part actually covered by the building, must be deemed to
be embraced by the original decree, and to be subject to sale, as
therein adjudged, in satisfaction of the demands of
complainants.
Whether that part of the lot upon which the building stands is
still the property of Macka11 -- that is, whether the sale and
conveyance of the marshal is valid in respect at least, of that
part of the lot -- we do not determine. We forbear any expression
of opinion upon that question, because it is evident that the
complainants did not seek, nor the court below intend, by the
original decree, to subject to sale the ground on which the
building stands, and also because the validity of the marshal's
Page 112 U. S. 377
sale is directly involved, as we are informed by counsel, in a
distinct suit upon our docket, not yet reached.
The decree must be reversed, and the cause remanded, with
directions to the court below to set aside the decree from which
this appeal is prosecuted, and to order the sale, in satisfaction
of the complainants' demands, and in such mode as may be consistent
with the practice of the court and with law, of lot 7 outside of
the part upon which the building known as the Palace Market
stands.
