63 64 in collateral litigation. He cannot appeal from so much of the decree under which he bought as provides that he shall pay a specified claim to which a preference is then or has been subsequently awarded. Where the decree is reversed upon appeal subsequent to the sale, even although no supersedeas has been obtained, the court will usually order restitution by the purchaser or his assignee, who is treated as a mortgagor in possession. It has been held that after a decree has been reversed by a court of review for want of jurisdiction and the Circuit Court has been directed to remand the cause, the latter court cannot confirm a sale previously made under its orders by a receiver.67 66 65 63 Grape Cr. C. Co. v. Farmers' L. & Tr. Co., 80 Fed. R. 200. See also State of Tennessee v. Quin.ard, 80 Fed. R. 829, 835. 64 Swann v. Wright's Ex'rs, 110 U. S. 590; St. Louis S. W. Ry. Co. v. Stark, 55 Fed. R. 758. See supra, § 243; infra, § 482. 65 Robinson v. Alabama & G. Mfg. Co., 67 Fed. R. 189; s. c., 72 Fed. R. 708; s. c. as Huguley Mfg. Co. v. Galeton Cotton Mills, 94 Fed. R. 269. In that case the court overruled the contention that certain actions of the counsel for the mortgagor at the sale estopped his client. 66 Huguley Mfg. Co. v. Galeton Cotton Mills, 94 Fed. R. 269. 67 Colburn v. Hill (C. C. A.), 103 Fed. R. 840. CHAPTER XXIV. DECREES. § 317. Definition and classification of decrees. A decree is a sentence or order of a court of equity pronounced after a hearing of the points of issue, and corresponds to a judgment of a court of law. A decree should be distinguished from a decretal order. A decretal order is an order in the nature of a decree, made upon motion or petition, either before or after the hearing, or in an independent proceeding.1 According to the different standpoints from which they may be regarded, decrees are classified, as final or interlocutory; as in personam or in rem; as absolute, conditional, decrees nisi, or decrees in the nature of decrees nisi. $318. Final and interlocutory decrees.- Decrees are either final or interlocutory. These terms are used with different meanings in the English practice and in that in the courts of the United States. A final decree in the English Chancery was a complete determination of every question arising in a cause.1 An interlocutory decree was one which reserved the further consideration of any question arising in a cause till a future hearing.2 In strictness, moreover, every decree was said to be interlocutory until it was signed and enrolled.' In England, an appeal lay from an interlocutory as well as from a final decree; but, under the Judiciary Acts, before that of March 3, 1891, only final decrees of a Federal court could be brought to a court of appeal for revision. On account of the inconvenience which would have followed, had the old definition been applied to the term used in this statute, the Federal courts have refused to follow the English Chancery in this respect. As far as appeals are concerned, a decree is considered final which decides the right to property, and orders that it be sold or delivered to a party; or creates a lien upon prop § 317. 1 Barb. Ch. Pr. 337. § 318. Seton's Decrees (4th ed.), 2. 2 Seton's Decrees (4th ed.), 2; Richmond v. Atwood (C. C. A.), 52 Fed. R. 10, 21. 3 Forum Romanum, 183; Seton's Decrees (4th ed.), 2. 4 Forgay v. Conrad, 6 How. 201, 205. "U. S. R. S., §§ 631, 692. erty by the issue of receiver's certificates or otherwise; or directs a specific sum of money to be paid to a party either by another person or out of a fund in court, provided that the successful party is entitled to compel its immediate execution, even though the consideration of other matters arising upon the pleadings is reserved "for further consideration" in it." A decree is final which settles all the rights of the parties involved in the pleadings, though it gives leave to either one of them to apply at the foot of the decree "in relation to any matter not finally determined by it." A decree dismissing a bill with costs to be subsequently taxed was held to be a final decree, although a judgment for the costs was subsequently entered after their taxation. A decree dismissing a bill as to all matters except one severable from the rest was held to be a final decree as regards the matters which it then determined. 10 All other decrees which reserve any question for the court's further decision, even though they direct money to be paid into court," or property to be delivered to a new trustee appointed by the court,12 or dissolve an injunction, or punish a party for contempt, or direct 13 "Taney, C. J., in Forgay v. Conrad, 6 How. 201, 204; Michoud v. Girod, 4 How. 503; Ray v. Law, 3 Cranch, 179; Whiting v. Bank U. S., 13 Pet. 6; Wabash & E. C. Co. v. Beers, 1 Black, 54; Bronson v. Railroad Co., 2 Black, 524; Milwaukee & M. R. Co. v. Soutter, 2 Wall. 440; Thomson v. Dean, 7 Wall. 342; Railroad Co. v. Bradleys, 7 Wall. 575; Stovall v. Banks, 10 Wall. 583; French v. Shoemaker, 12 Wall. 86; Marin v. Lalley, 17 Wall. 14; Trustees v. Greenough, 105 U. S. 527; Farmers' L. & Tr. Co., Petitioner, 129 U. S. 206; Lewisburg Bank v. Sheffey, 140 U. S. 445. So is a decree directing the payment of a claim out of the proceeds of a future sale. Central Tr. Co. v. Grant Locomotive Works, 135 U. S. 207. See final chapter on Writs of Error and Appeals. 7 St. Louis, I. M. & S. R. Co. v. Southern Ex. Co., 108 U. S. 24; Mo., K. & T. R. Co. v. Dinsmore, 108 U. S. 30; Lewisburg Bank v. Sheffey, 140 U. S. 445. 14 8 French v. Shoemaker, 12 Wall. 86. 9 Fowler v. Hamill, 139 U. S. 549. 10 Hill v. Chicago & E. R. Co., 140 U. S. 52. But see Keystone Iron Co. v. Martin, 132 U. S. 91. 11 Forgay v. Conrad, 6 How. 201; Beebe v. Russell, 19 How. 283; Louisiana Bank v. Whitney, 121 U. S. 284. But see Wabash & E. C. Co. v. Beers, 1 Black, 54. 12 Pulliam v. Christian, 6 How. 209. As to receiverships before 31 St. at L. 660, see Tornanses v. Melsing (C. C. A.), 106 Fed. R. 775; Re McKenzie, 180 U. S. 536; Forgay v. Conrad, 6 How. 201; Beebe v. Russell, 19 How. 283; Hentig v. Page, 102 U. S. 219; but see Wabash & E. C. Co. v. Beers, 1 Black, 54. 13 Young v. Grundy, 6 Cranch, 51; Moses v. Mayor, 15 Wall. 387; Verden v. Coleman, 18 How. 86; Knox County v. Harshman, 132 U. S. 14. 14 Hayes v. Fischer, 102 U. S. 121. 15 a sale, but do not sufficiently specifically determine the property to be sold to warrant an immediate sale, or direct a sale, but do not appoint the time of sale, or confirm a report of commissioners to locate boundaries and direct them to determine and make the boundary lines in accordance with such report and then to make a further report of their findings," are, it seems, interlocutory decrees from which no appeal can be taken under the Judiciary Acts; although, if the decision of the court in making them was erroneous, the final decree may be reversed on that account upon an appeal by a party who was thereby injured,18 or on the entry of the final decree the court which made them may correct the error.19 It has been held that the Federal court should not enjoin from acting under or otherwise interfere with the interlocutory decree of another court, and that the proper remedy is an application to the court which made the decree for a modification of the same,20 at least when such decree is not a contempt of the Federal court. $319. Decrees in personam.- Decrees are either in personam or in rem. Decrees in personam are those which contain a command to one of the parties to a suit in equity. Decrees in rem are such as, without containing a command to either of the parties, transfer the title to property. Decrees in personam may direct the performance of, or the abstention from, an act or acts. The ordinary decree of a court of equity is a decree in personam. Such a decree may be made even though it directs the performance of or abstention from an act, or directs a transfer, or otherwise affects the title to property beyond the jurisdiction of the court. Where in order to obtain the relief 19 Iowa v. Illinois, 151 U. S. 238; See also Carpenter v. Strange, 141 infra, § 350. U. S. 87. A statute provides that 20 Furnald v. Glenn (C. C. A.), 64 "the original jurisdiction of the CirFed. R. 49. cuit Court for the Southern District § 319. Arglasse v. Muschamp, 1 of New York shall not be construed sought it would be necessary for the court to take possession by its officers of land beyond its territorial jurisdiction, it has been said that such a decree should not be granted. Thus, it seems that the court will not decree a partition of land beyond the jurisdiction, since no commission appointed by it could have authority to act there; but it may decree specific performance of a contract, or the foreclosure of a mortgage affecting land no matter where it may be situated. It seems that it cannot direct a sale in another State. It has been held in England that the court will make no decree in a suit between two foreigners not residents of the country concerning a contract made or land situated elsewhere. And a Georgia case holds that a court of equity will not compel a corporation to perform a contract to open ditches and keep fences in repair in a State where it has no corporate existence. It often happens, however, that the court can do a thing itself more easily and effectively than it can compel it to be done by the party concerned, as, for example, when it wishes to sell property or to cancel an instrument in writing, and it then will perform that duty by means of a master or receiver. When all the defendants are within the jurisdiction, such a decree is usually accompanied by a command to them to confirm the sale or other action of the court, or to assist in the transaction directed by the decree. When a defendant is beyond the jurisdiction, the court sometimes acts by a decree in rem. to extend to causes of action arising within the Northern District of said State." U. S. R. S., § 657; Hodge v. Hudson River R. Co., 3 Fish. Pat. Cas. 410; s. c., 6 Blatchf. 85; Locomotive E. S. T. Co. v. Erie R. Co., 10 Blatchf. 292; Black v. Thorne, 10 Blatchf. 66; supra, § 23. 2 Muller v. Dows, 94 U. S. 444, 449; Macgregor v. Macgregor, 9 Iowa, 65; Glen v. Gibson, 9 Barb. (N. Y.) 634; Story's Eq. Jur., § 1292; 2 Spence, 8, n. (d); Smith's Eq. 30; Bispham's Eq., § 47. 32 Spence, 8, n. (d); Story's Eq. Jur., § 1292; Smith's Eq. 30; Bispham's Eq., § 47. 4 Penn v. Lord Baltimore, 1 Ves. Sen. 444; Massie v. Watts, 6 Cranch, 148; Muller v. Dows, 94 U. S. 444; McElrath v. Pittsburg & S. R. Co., 5 Pa. St. 189. 5 Lynde v. Columbus, C. & I. C. Ry. Co., 57 Fed. R. 993; Farmers' L. & Tr. Co. v. Postal Tel. Co., 55 Conn. 334; s. C., 11 Atl. R. 184; Carpenter v. Strange, 141 U. S. 87, 106; Mercantile Tr. Co. v. Kanawha & O. Ry. Co., 39 Fed. R. 337; In re Anderson, 94 Fed. R. 487; supra, § 316. 6 Matthaei v. Galitzin, L. R. 18 Eq. 340; Blake v. Blake, 18 W. R. 944. 7 Port Royal R. Co. v. Hammond, 58 Ga. 523. 8 Deck v. Whitman, 96 Fed. R. 873; Langdell's Eq. Pl., § 44. See infra, § 349. |