According to the course of practice in the courts of the United
States in chancery cases, an original decree is to be deemed
recorded and enrolled as of the term in which the final decree was
passed. A bill which seeks to have alleged errors revised for want
of parties or for want of proper proceedings after the decree
against his heirs after the decease of one of the parties is
certainly a bill of review, in contradistinction to a bill in the
nature of a bill of review, which lies only where there has been no
enrollment of the decree.
An original bill in the nature of a bill of review brings
forward the interests affected by the decree other than those which
are founded in privity of representation.
In England, the decree always recites the substance of the bill
and answer and the pleadings, and also the facts on which the court
founds its decree. But in America, the decree does not ordinarily
recite these, and generally not the facts on which the decree is
founded. But with us, the bill and answer and other pleadings,
together with the decree, constitute what is properly considered as
the record.
The bill of review must be founded on some error apparent upon
the bill, answer, and other pleadings and decree, and a party is
not at liberty to go into the evidence at large in order to
establish an objection in the decree founded on the supposed
mistake of the court in its own deductions from the evidence.
No party to a decree can, by the general principles of equity,
claim a reversal of a decree upon a bill of review unless he has
been aggrieved by it, whatever may have been his rights to insist
on the error at the original hearing or on an appeal.
A decree of foreclosure of a mortgage and of a sale are to be
considered as the final decree in the sense of a court of equity,
and the proceedings on the decree are a mode of enforcing the
rights of the creditor and for the benefit of the debtor. The
original decree of foreclosure is final on the merits of the
controversy. If a sale is made after such a decree, the defendant
not having appealed as he had a right to do, the rights of the
purchaser would not be overthrown or invalidated even by a reversal
of the decree.
After a decree of foreclosure of a mortgage and a sale, and the
death of the defendant takes place after the decree, it is not
necessary to revive the proceedings against the heirs of the
deceased party before a sale of the property can be made.
The case as stated in the opinion of the Court was as
follows:
"This is the case of a bill purporting to be a bill of review.
The substantial facts, as they appear on the record, are as
follows:"
"Gabriel J. Johnson being the owner in remainder of a five-acre
lot, No. 9, in Louisville, Kentucky, of which his mother, Enfield
Johnson was tenant for life under the will of his father, and being
also the owner in fee by another title of another piece of land
adjoining the five-acre lot, a part of the slip No. 2, on 12
November, A.D. 1818, conveyed the same in mortgage to James D.
Breckenridge to secure the latter for his endorsements of three
certain notes of Johnson to Ruggles Whiting, each for four thousand
dollars, and for any other notes and contracts which Breckenridge
should thereafter make, execute, accept, or endorse for the benefit
of Johnson. Afterwards, on 9 August, A.D. 1820,
Page 38 U. S. 7
Johnson & Breckenridge, as his surety, being indebted to the
Bank of the United States in the sum of nine thousand nine hundred
and thirty-one dollars and thirty-seven cents, arrangements were
made between them and Whiting by which Whiting assumed the payment
of the same debt and gave his note therefor to the bank
accordingly, and as security for the due payment thereof, Johnson
and his mother Enfield Johnson, Breckenridge and Whiting on the
same day executed a mortgage of the five-acre lot and slip of land
above mentioned to the Bank of the United States, reciting, among
other things, the foregoing arrangement. The condition of the
mortgage, among other things, stated that it was agreed by the
parties that after the satisfaction of the said demands due by
Whiting to the bank and by Gabriel J. Johnson to Whiting, the
estate or the residue thereof, or any surplus in money by the sale
thereof, should be paid or conveyed to Enfield Johnson or her
assigns. The mortgage also contained a stipulation for the sale of
the premises to meet the payment of the debt due to the bank. In
April, 1823, the debt due and thus secured to the bank remaining
unpaid, a bill for a foreclosure and sale was brought by the bank
in the circuit court of the United States for the District of
Kentucky, and to that bill Gabriel J. Johnson Enfield Johnson and
Whiting were made parties. But Breckenridge was not made a party.
At the November term of the circuit court, A.D. 1826, a decree of
foreclosure of all the equity or right of resumption of the
defendants in the mortgaged premises was passed, and a further
decree that the premises should be sold by commissioners. The sale
took place accordingly; the bank became the purchasers, and the
sale was confirmed by the circuit court at May term, 1827. In the
intermediate time between the original decree of foreclosure and
the sale,
viz., on 26 February, 1827, Whiting died in
Massachusetts, leaving the plaintiffs in the present bill, Paulina
Whiting, and Helen B. Whiting, and one L.R. Whiting (since dead
without issue) his children and heirs at law -- who were then
infants under age, and the youngest, Helen, did not come of age
until 1831."
The present bill is brought by Paulina Whiting and Helen B.
Whiting by James Richardson, administrator of Ruggles Whiting, and
by Gabriel J. Johnson and Enfield Johnson against the Bank of the
United States, and after stating the proceedings in the original
suit upon the mortgage, and that the sale was made at a great
sacrifice of the property, it relies on the following grounds of
error in the proceeding, decree and sale in the original suit. 1.
That it was irregular and erroneous to entertain the bill, and
pronounce the decree for foreclosure and sale without
Breckenridge's being made a party defendant. 2. That it was
irregular and erroneous to sell the property mortgaged without a
revival of the suit against the heirs of Whiting. 3. That it was
unjust and oppressive to sell in the manner and at the price at
which the sale took place.
The answer of the bank denies all equity in the plaintiffs and
insists that the decree and sale were fair and just. It also denies
that
Page 38 U. S. 8
Whiting and Breckenridge had any title to the property, and
insists that they joined in the mortgage merely to complete the
arrangements made between Johnson and themselves. It also denies
that the death of Whiting was known at the time of the sale. It
states that the property was, after the purchase by the bank,
improved, and parts thereof sold to
bona fide purchasers
for valuable considerations, and by reason of the improvements and
the extension of the city, parts of the grounds so sold are now
among the most beautiful and densely built parts of the city. The
answer also states that Whiting died insolvent and deeply indebted
to the bank by certain other judgments and notes.
Page 38 U. S. 11
MR. JUSTICE STORY delivered the opinion of the Court.
This is the case of a bill purporting to be a bill of review.
The substantial facts as they appear on the record are as
follows:
Gabriel J. Johnson being the owner in remainder of a five-acre
lot,
Page 38 U. S. 12
No. 9, in Lousiville, Kentucky, of which his mother, Enfield
Johnson was tenant for life under the will of his father, and being
also the owner in fee, by another title, of another piece of land
adjoining the five-acre lot (a part of the slip No. 2), on 12
November, A.D. 1818, conveyed the same in mortgage to James D.
Breckenridge to secure the latter for his endorsements of three
certain notes of Johnson to Ruggles Whiting, each for four thousand
dollars, and for any other notes and contracts which Breckenridge
should thereafter make, execute, accept, or endorse, for the
benefit of Johnson. Afterwards, on 9 August, A.D. 1820, Johnson and
Breckenridge, as his surety, being indebted to the Bank of the
United States in the sum of nine thousand nine hundred and
thirty-one dollars and thirty-seven cents, arrangements were made
between them and Whiting, by which Whiting assumed the payment of
the same debt, and gave his note therefor to the bank accordingly,
and as security for the due payment thereof, Johnson and his
mother, Enfield Johnson Breckenridge, and Whiting, on the same day
executed a mortgage of the five-acre lot and slip of land above
mentioned to the Bank of the United States, reciting, among other
things, the foregoing arrangement.
The condition of the mortgage, among other things, stated that
it was agreed by the parties that after the satisfaction of the
said demands due by Whiting to the bank and by Gabriel J. Johnson
to Whiting, the estate, or the residue thereof, or any surplus if
money by the sale thereof should be paid or conveyed to Enfield
Johnson or her assigns. The mortgage also contained a stipulation
for the sale of the premises to meet the payment of the debt due to
the bank. In April, 1823, the debt due and thus secured to the bank
remaining unpaid, a bill for a foreclosure and sale was brought by
the bank in the Circuit Court of the United States for the District
of Kentucky, and to that bill Gabriel J. Johnson Enfield Johnson
and Whiting were made parties. But Breckenridge was not made a
party. At the November term of the circuit court, A.D. 1826, a
decree of foreclosure of all the equity or right of redemption of
the defendants in the mortgaged premises was passed, and a further
decree that the premises should be sold by commissioners. The sale
took place accordingly, the bank became the purchasers, and the
sale was confirmed by the circuit court at the May term, 1827. In
the intermediate time between the original decree of foreclosure
and the sale,
viz., on 26 February, 1827, Whiting died in
Massachusetts, leaving the plaintiffs in the present bill Paulina
Whiting and Helen B. Whiting and one L.R. Whiting (since dead
without issue) his children and heirs at law, who were then infants
under age, and the youngest, Helen, did not come of age until
1831.
The present bill is brought by Paulina Whiting and Helen B.
Whiting, by James Richardson administrator of Ruggles Whiting, and
by Gabriel J. Johnson and Enfield Johnson against the Bank of the
United States, and after stating the proceedings in the original
suit upon the mortgage and that the sale was made at a great
Page 38 U. S. 13
sacrifice of the property, it relies on the following grounds of
error in the proceedings, decree, and sale in the original suit. 1.
That it was irregular and erroneous to entertain the bill and
pronounce the decree for foreclosure and sale, without
Breckenridge's being made a party defendant. 2. That it was
irregular and erroneous to sell the property mortgaged without a
revival of the suit against the heirs of Whiting. 3. That it was
unjust and oppressive to sell in the manner and at the price when
the sale took place.
The answer of the bank denies all equity in the plaintiffs and
insists that the decree and sale were fair and just. It also denies
that Whiting or Breckenridge had any title to the property and
insists that they joined in the mortgage merely to complete the
arrangements made between Johnson and themselves. It also denies
that the death of Whiting was known at the time of the sale. It
states that the property was, after the purchase by the bank,
improved and parts thereof sold to
bona fide purchasers
for valuable considerations, and by reason of the improvements and
the extension of the city, parts of the grounds so sold are now
among the most beautiful and densely built parts of the city. The
answer also states that Whiting died insolvent and deeply indebted
to the bank by certain other judgments and notes.
Such are the material facts and statements in the case, and upon
them, so far at least as the present bill of review is concerned,
there is no controversy between the parties. The prayer of the bill
is that the proceedings may be revived (as the word stands on the
record, probably by mistake, for "reviewed"), and that the decrees
and sale may be set aside, that the plaintiffs may be permitted to
redeem, and for other relief.
Some suggestions have been made as to the nature and character
of the present bill -- whether it is to be treated as a bill of
review or what other is its appropriate denomination. As the
original decree, which it seeks to review, was properly, according
to our course of practice, to be deemed recorded and enrolled as of
the term in which the final decree was passed, it is certainly a
bill of review, in contradistinction to a bill in the nature of a
bill of review, which latter bill lies only when there has been no
enrollment of the decree. Being a bill brought by the original
parties and their privies in representation, it is also properly a
bill of review in contradistinction to an original bill in the
nature of a bill of review, which latter bill brings forward the
interests affected by the decree other than those which are founded
in privity of representation. The present bill seeks to revive the
suit by introducing the heirs of Whiting before the court, and so
far it has the character of a bill of revivor. It seeks also to
state a new fact,
viz., the death of Whiting before the
sale, and so far it is supplementary. It is therefore a compound
bill of review, of supplement, and of revivor, and it is entirely
maintainable as such if it presents facts which go to the merits of
the original decree of foreclosure and sale.
It has also been suggested at the bar that no bill of review
lies
Page 38 U. S. 14
for errors of law except where such errors are apparent on the
face of the decree of the court. That is true in the sense in which
the language is used in the English practice. In England, the
decree always recites the substance of the bill and answer and
pleadings and also the facts on which the court founds its decree.
But in America the decree does not ordinarily recite either the
bill or answer or pleadings, and generally not the facts on which
the decree is founded. But with us, the bill, answer, and other
pleadings, together with the decree, constitute what is properly
considered as the record. And therefore, in truth, the rule in each
country is precisely the same in legal effect, although expressed
in different language,
viz., that the bill of review must
be founded on some error apparent upon the bill, answer, and other
pleadings and decree, and that you are not at liberty to go into
the evidence at large in order to establish an objection to the
decree founded on the supposed mistake of the court in its own
deductions from the evidence.
Having made these explanations, which seemed proper with
reference to the arguments pressed at the bar, we may now return to
the consideration of the direct points presented for the
consideration of the Court. The third and last error relied on in
the bill has been abandoned at the argument, and therefore it need
not be examined. The other two remain to be disposed of. And first
as to the supposed error in not making Breckenridge a party to the
original bill. Assuming that he was a proper party to that bill,
still it is to be considered that it was an objection which ought
properly to have been taken by the present parties at the original
hearing, or upon the appeal (if any) before the appellate court.
And upon a bill of review it cannot properly be relied on as matter
of error unless it can be shown that the nonjoinder has operated as
an injury or mischief to the rights of the present plaintiffs. No
such injury or mischief has been shown or is pretended.
Breckenridge is not bound by the original decree, because he was no
party thereto, and therefore his interests cannot be prejudiced
thereby. But if they were, he and he alone has a right to complain
and to seek redress from the court, and not the plaintiffs, who are
not his representatives or entrusted with the vindication of his
rights. Breckenridge has made no complaint and sought no redress.
We think, therefore, that this error, if any there be, not being to
the prejudice of the plaintiffs, cannot furnish any ground for them
to maintain the present bill, for no party to a decree can, by the
general principles of equity, claim a reversal of a decree upon a
bill of review unless he has been aggrieved by it, whatever may
have been his rights to insist on the error at the original hearing
or on an appeal.
In the next place as to the sale of the mortgaged premises after
the death of Whiting without a revival of the suit against his
heirs. It is not even pretended in the bill of review that there
was any fraud in the sale, nor upon the argument has any
irregularity even been insisted on. What then is the gravamen? That
the land was sold honestly and fairly, but for a less price than
its real value.
Page 38 U. S. 15
Now such an objection, even in the mouth of Whiting himself, if
he had been living, would have constituted no valid objection to
the sale or the confirmation thereof, but at most would have
furnished only a motive to induce the court, in its discretion, to
have ordered a resale or to have opened the biddings. It would be
no matter of error whatever. If this be a correct view of the
subject, it is plain that the heirs of Whiting cannot be entitled
to be put in a better predicament than Whiting himself, and no
decree in equity ought to be reversed for matter of mere favor, and
not of right.
But is the objection itself in principle well founded? That
depends upon this -- whether the decree of foreclosure and sale is
to be considered as the final decree in the sense of a court of
equity, and the proceedings on that decree a mere mode of enforcing
the rights of the creditor, and for the benefit of the debtor, or
whether the decree is to be deemed final only after the return and
confirmation of the sale by a decretal order of the court. We are
of opinion that the former is the true view of the matter. The
original decree of foreclosure and sale was final upon the merits
of the controversy. The defendants had a right to appeal from that
decree, as final upon those merits, as soon as it was pronounced in
order to prevent an irreparable mischief to themselves. For if the
sale had been completed under the decree, the title of the
purchaser under the decree 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,
and their redress upon the reversal would have been of a different
sort from that of a restitution of the land sold. In
Ray v. Law, 3
Cranch 179, it was held by this Court that a decree of sale of
mortgaged premises was a final decree in the sense of the act of
Congress, upon which an appeal would lie to the Supreme Court. This
decision must have been made upon the general ground that a decree,
final upon the merits of the controversy between the parties, is a
decree upon which a bill of review would lie without and
independent of any ulterior proceedings. Indeed, the ulterior
proceedings are but a mode of executing the original decree, like
the award of an execution at law. If this be the true view of the
present decree and the proceedings thereon, then it is plain that
this bill of review is not maintainable for two reasons, each of
which is equally conclusive. The first is that no error is shown in
the original decree, for the only pretended error is in the sale
under the decree. The second is that this bill of review was not
brought within five years after the original decree was rendered in
the lifetime of Whiting, and the statute of limitations, having
once begun to run, cannot be stopped by any subsequent intervening
disabilities.
If, then, the original decree was unobjectionable and
conclusive, if there has been no fraud in the subsequent sale
pursuant to that decree, and if there has been in a legal sense no
prejudice to any rights of the plaintiffs in the original decree or
the sale, then,
Page 38 U. S. 16
although there was no revivor before the sale, there is no error
upon which a bill of review will lie to entitle the parties to a
reversal. We do not say whether the circuit court might or might
not in its discretion have required a revival of the suit before
the sale was confirmed, if the fact of the death of Whiting had
been distinctly brought to its knowledge. But we do mean to say
that the nonrevival was not matter of error for which the
proceeding on the sale under the original decree (for that is all
which the present bill seeks to redress) can or ought to be
reversed.
The decree of the circuit court dismissing the bill is
therefore
Affirmed with costs.
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
Kentucky and was argued by counsel. On consideration whereof it is
now here ordered and decreed by this Court that the decree of the
said circuit court in this cause be and the same is hereby affirmed
with costs.
