A decree in a suit in equity to foreclose a mortgage, which
determines the validity of the mortgage and, without ordering a
sale, directs the cause to stand continued for further order and
decree upon the coming in of a master's report, is not final for
the purposes of an appeal.
Parsons v. Robinson, 122 U. S. 112, and
First National Bank of Cleveland v. Shedd, 121 U. S.
74, distinguished.
This is a motion to dismiss an appeal because the decree
appealed from is not final, but interlocutory only. The case is in
substance this:
A bill was filed by a junior mortgagee against the mortgagor and
a prior mortgagee, to foreclose his mortgage, and to establish his
right to redeem from the prior mortgage. The defense was that,
under certain proceedings had for the foreclosure of the prior
mortgage, his right to redeem had been cut off and the mortgaged
property sold free of his lien. The decree appealed from finds: 1.
that the junior mortgage is still a valid and subsisting lien, and
that the right of its trustee and beneficiaries to redeem had not
been cut off by the proceedings for the foreclosure of the earlier
mortgage; 2. that those claiming title under the sale upon the
foreclosure of that mortgage, and certain other parties, are
entitled to redeem the junior mortgage "by paying off the amount
due" thereon "at such time as shall hereafter be fixed and
determined by a further order or decree to be entered in this
cause;" 3. in case none of the parties claiming under the prior
mortgage redeems the junior mortgage, and the junior mortgagee
redeems the prior one, then that the junior mortgage shall be
foreclosed, and a sale of the property "shall be had, under a
decree to be entered by this court," and the proceeds shall be
applied first "to paying off the amount
Page 123 U. S. 53
paid to redeem from the first" mortgage; second, the amount
found due on the second mortgage; and the balance, if any, paid to
the mortgagor; 4. "in the event that none of these parties shall
redeem from the others, . . . then a sale" of the mortgaged
property
"shall be had pursuant to such decree as may hereafter be
entered herein, and from the proceeds shall be paid off first, the
amount which it may be hereafter determined is due on the
first"
mortgage; "second, . . . the amount which it may hereafter be
determined is due on the second" mortgage; and third, the balance,
if any, to the mortgagor.
It was then ordered that, "for the purpose of determining the
amount necessary to be paid by any of the parties in making
redemption, as herein provided," the cause be referred to a master
"to find and report" the amount due on both the first and the
second mortgages in accordance with certain principles of
accounting, which were specifically stated. The whole then
concludes as follows: "This decree being interlocutory, it is
ordered that said cause stand continued for further order and
decree." From this decree the appeal was taken.
The case is reported as
Simmons v. Taylor, 23 F.
849.
Page 123 U. S. 54
MR. CHIEF JUSTICE WAITE delivered the opinion of the Court.
The rulings at the last term in
Parsons v. Robinson,
122 U. S. 112, are
decisive of this motion. The right of the junior mortgagee to
redeem the prior mortgage has been established by the decree
appealed from, but the amount he must pay has not been determined.
The validity of his lien as security for the amount due on his
mortgage has been declared, but what that amount is has not been
fixed. His right to a sale of the mortgaged property in case the
debt is not paid has been settled, but such a sale cannot be made
until a further order to that effect is entered. The litigation has
not been ended, the terms of the redemption have not been fixed,
and the foreclosure sale awaits the further judicial action of the
court. In short, nothing can be done towards carrying the decree
into effect until the "further order or decree" for which the cause
was continued. This is shown more than once on the face of the
decree, and consequently the decree is, in fact, what the court
took care to say it was, "interlocutory" only, and not final, for
the purposes of an appeal.
It is suggested in the brief of counsel for the appellant that
the cases of
First National Bank of
Cleveland v. Shedd, 121
Page 123 U. S. 55
U.S. 74, and
Parsons v. Robinson, supra, are in
conflict, but this is a mistake. In
Shedd's Case, there
was a decree of sale absolutely and without reserve, which could be
carried into execution at once, and when a purchaser acquired title
under it he would have held as against all the parties to the suit,
no matter what might be the rulings on the other questions in the
case which were reserved for further adjudication. The language of
the decree, as shown at page
121 U. S. 84,
was to the effect
"that the whole property be sold as an entirety, . . . and that,
upon a confirmation of the sale, the purchaser be entitled to a
conveyance freed and discharged of the lien of the mortgages,
receiver's certificates, costs, expenses,"
etc. Such a decree was surely final for the purposes of an
appeal within the rule as stated in
Forgay v.
Conrad, 6 How. 201, where it is said, at page
47 U. S.
204:
"When the decree decides the right to the property in contest
and directs it to be delivered up by the defendant to the
complainant, or directs it to be sold, or directs the defendant to
pay a certain sum of money to the complainant, and the complainant
is entitled to have such a decree carried immediately into
execution, the decree must be considered as a final one to that
extent, and authorizes an appeal to this Court, although so much of
the bill is retained in the circuit court as is necessary for the
purpose of adjusting by a further decree the accounts between the
parties, pursuant to the decree passed."
To the same effect are
Ray v. Law, 3
Cranch 179;
Bronson v. Railroad
Co., 2 Black 524,
67 U. S. 531;
and
Thomson v.
Dean, 7 Wall. 342, in which last case it is said,
page
74 U. S.
345:
"In this case, the decree directs the performance of a specific
act, and requires that it be done forth with. The effect of the
act, when done, is to invest the transferees with all the rights of
ownership. It changes the property in the stock as absolutely and
as completely as could be done by execution on a decree for sale.
It looks to no future modification or change of the decree."
If a sale had been made under the decree as it stood in
Shedd's Case,
"the title of the purchaser would not have been overthrown or
invalidated, even by a reversal of the decree, and consequently the
title of the defendants to the lands would have been
extinguished
Page 123 U. S. 56
and their redress, upon the reversal, would have been of a
different sort from that of a restitution of the land sold."
Such was the language of this Court, speaking through Mr.
Justice Story, in
Whiting v. Bank of the United
States, 13 Pet. 6,
38 U. S. 15, in
reference to the effect of a sale under a decree of foreclosure and
sale, and there cannot be a doubt of its correctness. It was for
this reason the decree in
Shedd's Case was held to be
final in the sense of a court of equity for the purpose of an
appeal.
But in
Parsons v. Robinson we held there was no decree
of sale which could be "carried immediately into execution," that
no order of sale could issue until the court had "given its
authority in that behalf," and that "further judicial action must
be had by the court before its ministerial officers . . . could
proceed to carry the decree into execution." In this consists the
difference between the two cases: in
Shedd's Case there
was actually a decree of sale; in
Parson's Case there was
not. So here, there has been no actual decree of sale, and
The motion to dismiss is granted.
