A brought ejectment against B. B thereupon filed a bill in
equity (which was subsequently amended) to remove a cloud from the
title, setting up that the deed under which A claimed was a
mortgage, with a written
Page 127 U. S. 214
contract of defeasance. A demurred. Upon hearing on the
demurrer, it was ordered that if B should, within fifteen days,
bring into court the amount due on the mortgage and interest and
all taxes paid by A, etc., A should be restrained from further
prosecution of the ejectment suit, but that if he should fail to do
so within that time, the bill should be dismissed and the defendant
allowed to proceed with the suit.
Held:
(1) That this order, made upon hearing of a demurrer to a bill
in chancery, was wholly irregular, but
(2) That this Court was without jurisdiction as the order was
not a final decree.
In equity. The case is stated in the opinion.
MR. JUSTICE MILLER delivered the opinion of the Court.
The appellants here, Henry O. Jones and John Jort, brought their
bill in chancery against Walter Craig, the defendant, in the
Circuit Court of the United States for the District of
Nebraska.
The object of the bill was to remove a cloud upon the title to
certain lands. The defendant had brought an action of ejectment to
recover their possession, and, having a
prima facie title
of record upon which he could recover, this bill was filed for the
purpose of setting up an equitable defense. Thereupon a temporary
injunction was allowed restraining Craig from prosecuting his
action of ejectment until the chancery suit was decided.
The allegation of the bill was that a deed under which the
plaintiff in the ejectment suit asserted title was executed as a
mortgage, with a written contract of defeasance when the money
loaned should be repaid. To this bill a demurrer was filed, upon
which the court made an order in the following language:
"If the plaintiff will amend bill and bring into court proper
amount of money to redeem and pay taxes, all of same to bear
interest from time money was due, and interest on taxes from date
of payment at present rate of interest, then perpetual
Page 127 U. S. 215
injunction can be allowed. Costs of both suits to abide further
order."
Afterwards the plaintiff did file an amended bill, to which
likewise there was a general demurrer. Upon the hearing of that
demurrer, the court made the following order:
"Henry O. Jones
et al."
"vs. 193-H"
"Walter Craig"
"This cause coming on to be heard upon the demurrer of the
defendant to the amended bill of complaint filed herein, and the
court being fully advised in the premises, it is ordered that if
within fifteen days the plaintiff bring into court the amount of
the note and mortgage set forth in the bill of complaint, with
interest thereon from the time the note became due, with interest
thereon at ten percent per annum until November 1, 1879, and from
November 1, 1879, to date of this order at seven percent per annum,
together with all taxes paid by defendant upon the land described
in said bill, with interest thereon at ten percent per annum, then
the defendant be restrained from the further prosecution of the
cause in ejectment set forth in said bill of complaint and entitled
Walter Craig v. Henry O. Jones, but if the plaintiff shall
fail so to do within the time mentioned, the said demurrer to said
bill be sustained and the said bill of complaint be dismissed, and
the defendant herein be allowed to proceed with the prosecution of
his said action at law. To the ruling and decision of the court the
plaintiffs except."
This order, made upon the hearing of the demurrer to a bill in
chancery, is wholly irregular.
This Court, however, has no jurisdiction of the case as it
stands, because the order just cited is not a final decree.
Something yet remains to be done in order to make it such, and that
action depends upon whether or not the complainants will comply
with the order to bring in the sum due on the mortgage. If that
order is complied with, then a decree should be made, upon the
hypothesis on which the order was made, in favor of the
complainants in the bill and quieting their title. If, however, the
money is not brought into court,
Page 127 U. S. 216
then, according to the theory of the order, the bill of
complaint should be dismissed. But even assuming the right of the
court to make the order as well as its validity, the circumstances
under which the bill of complaint is to be dismissed or the relief
granted to the complainants named therein and the sum to be paid
are matters which are yet to be determined, which may turn out
either one way or the other and which, when ascertained, will be
the foundation for a final decree. There is no final decree as the
matter now stands.
The appeal is therefore dismissed and the case remanded to
the circuit court for further proceedings.