§ 320. Decrees in rem. A decree in rem in a court of equity is one that determines the title to or an interest in real or personal property within the territorial jurisdiction of the court, without having any other effect upon a defendant who dwells beyond that jurisdiction and has not been served with process within it. Such an equitable decree must be distinguished from the decrees in rem of a court of admiralty, which establish a title conclusively against all the world; whereas it is only binding upon the parties to the action in which it is rendered. Such decrees were formerly very rare. In the Federal courts of equity they are purely statutory, and the power of those courts to make them depends entirely upon a strict compliance with the provisions of the statute. Whether or not, under this statute or otherwise, a decree can be made and enforced which requires the specific performance of a contract for the conveyance of property within the court's jurisdiction against a person not served there with process, has never been decided.3 Where the State statute authorized such a decree it was followed by the Federal court. § 321. Absolute and conditional decrees.- Decrees are either absolute, conditional, nisi, or in the nature of decrees nisi. An absolute decree is one that takes effect immediately upon its entry and is dependent for its enforcement upon no condition, and is not subject to be defeated by the occurrence of any subsequent event. A conditional decree is one that by its terms is not to take effect unless something shall be done by the party to whom relief is given by it. Under the present state of the authorities, it would be rash to attempt to lay down a rule as to when a conditional decree will be granted, and when the plaintiff will be denied relief unless he has made a specific offer or waiver in his bill. The following are a few of the cases where a conditional decree has been granted. An express company has been granted a decree compelling a railroad company to carry freight for it, upon condition that it § 320. But see Anon., 1 Atk. 18. 2 U. S. R. S., § 738; Act of March 3, 1875, ch. 137, §8 (18 St. at L. 472). See Grove v. Grove, 93 Fed. R. 855; supra, § 97. 3 See Ward v. Arredondo, Hopk. Ch. (N. Y.) R. 213; Anon., 1 Atk. 18; Rourke v. McLaughlin, 38 Cal. 196; 4 Single v. Scott P. Mfg. Co., 55 Fed. R. 553. § 321. See Moore v. Crawford, 130 U. S. 122, 140. should give the latter a bond to pay such charges as the court should subsequently consider reasonable. A decree for the redemption of a mortgage is upon condition that the plaintiff pay the balance reported due from him within six months, which it seems must be lunar not calendar months, after the report, in default whereof the plaintiff's bill against the defendant is from thenceforth to stand dismissed out of court with costs. Upon default, a final order, which will be granted as of course, is necessary to dismiss the bill. A decree allowing a junior incumbrancer to redeem may be upon condition that he pay off a prior incumbrance, and repay to its holder money paid by him in discharging still prior incumbrances, and for taxes, repairs, and insurance upon the mortgaged premises. Similarly, a decree upon a bill by a purchaser for the specific performance of an agreement for the sale of an estate may appoint a time and place for the payment of the purchase-money, with interest if any be due, and direct that in default of payment the bill be dismissed with costs. A decree for an accounting should always contain a submission by the plaintiff to account. It has been made a condition precedent to the entry of a decree to enjoin the infringement of a patent, that the complainant first file in the Patent Office a disclaimer of those of the claims in the patent to which he is not entitled.R For conditions of sale in suits to foreclose railway mortgages see the preceding section upon sales by masters. § 322. Decrees nisi.— A decree nisi is one giving a defendant a certain specified time within which to show cause against a decree or to perform some other act in relation thereto, in default whereof it shall be absolute against him. Such a decree is made against an infant or a mortgagor, or the latter's assigns. According to the English rule, every decree against an infant defendant which requires some act to be performed by him,' or which directs a conveyance or a foreclosure of his 2 Southern Exp. Co. v. St. Louis, I. M. & S. R. Co., 10 Fed. R. 210; reversed Express Cases, 117 U. S. 1. 3 Seton on Decrees, 140; Waller v. Harris, 7 Paige (N. Y.), 167. 4 Seton on Decrees, 178. 5 McCormick v. Knox, 105 U. S. 122. 6 Lowther v. Andover, 1 Bro. C. C. 396. 7 Fowler v. Wyatt, 24 Beav. 232; Seton on Decrees (4th ed.), 775. 8 Sessions v. Romadka, 21 Fed. R. 124, 133; Hake v. Brown, 37 Fed. R. 783; Electrical Acc. Co. v. Julien El. Co., 38 Fed. R. 117. 9 Supra, § 316. § 322. Walsh v. Trevannion, 16 Simons, 178; Eyre v. Countess of interest in any real estate, must contain a clause giving him an opportunity to show cause against it after he has come of age.2 Where a sale of land is directed by such a decree, it usually contains a direction that, in the mean time, a purchaser under the sale shall hold and enjoy the estate against the infant until he attains full age; and the court so far protects a purchaser that it will not permit his title to be affected by a mere irregularity in the decree. Where a decree directed a conveyance by both adult and infant parties, as in a partition suit, by the English practice it would not direct a conveyance by any till the infant was of age and had had an opportunity to show cause against the decree, and, in the mean time, the decree would only extend so far as to give possession in accordance with the court's decision, and to order enjoyment accordingly until effectual conveyances could be made. It seems that in no other instances will a decree nisi be entered against an infant defendant, although there is some doubt upon this point. In a few exceptional cases, when an infant plaintiff in his bill exercised an election between two conflicting claims, the court has allowed him a day after he became of age in which to show cause against it. The usual form of the nisi clause in such a decree is as follows: "And this decree is to be binding on the defendant, the infant, unless on being served, after he shall have attained the age of twenty-one years, with subpoena to show cause against this decree, he shall within six months from the service of such subpoena show unto this court good cause to the contrary." Such a clause should be inserted in the order for making a decree of foreclosure absolute, as well as in the decree. The omission of a similar clause in such a decree is 8 Shaftsbury, 2 P. Wms. 102; Sheffield v. Duchess of Buckingham, 1 West, 682; Thoroton v. Blackborne, 2 W. Kel. 7; Seton on Decrees (4th ed.), 712, 713. 2 Williamson v. Gordon, 19 Ves. 114; Mallack v. Galton, 3 P. Wms. 352; Newbury v. Marten, 15 Jur. 166; Mills v. Dennis, 3 J. Ch. (N. Y.) 367; Seton on Decrees (4th ed.), 714. But see Croxon v. Lever, 12 W. R. 237. 3 Powell v. Powell, Mad. & Geld. 53. 4 Bennet v. Hamill, 2 Sch. & Lef. 566. 5 Agar v. Fairfax, 17 Ves. 533, 554; Atty. Gen. v. Hamilton, 1 Madd. 214. 6 Seton on Decrees (4th ed.), 714; Eyre v. Countess of Shaftsbury, 2 P. Wms. 102; Sheffield v. Duchess of Buckingham, 1 West, 682. See Kingsbury v. Buckner, 134 U. S. 650. 7 Gregory v. Molesworth, 3 Atk.626; Sir John Napier v. Lady Effingham, 2 P. Wms. 401; Lord Brook v. Lord Hertford, 2 P. Wms. 518; Taylor v. Philips, 2 Ves. Sen. 23. 8 Seton on Decrees (4th ed.), 711. 9 Williamson v. Gordon, 19 Ves. 114. 13 error.10 The six months after the service of process within which cause must be shown must be, it seems, lunar not calendar months. At the expiration of them and upon proof of the requisite facts, an order making the original decree absolute should be entered.12 A decree for a foreclosure should also be nisi, providing for either a strict foreclosure or a foreclosure sale, unless the whole amount due shall be paid within a reasonable time, usually six lunar months, from the time of the conclusion of the accounting and the certificate of what is due under the mortgage. An omission of such clause is error.14 At the expiration of the allotted time, if the debt be still unpaid, the plaintiff should obtain an order confirming the foreclosure or directing the sale.15 The time for payment may always, even after a peremptory order for a sale,16 be enlarged, upon terms, which usually are that the defendant give good security to pay the amount due, with interest and costs in full." A decree of foreclosure absolute may also be reopened; 18 but it has been said that this can only be done when it has been obtained by fraud or under circumstances of oppression.19 The Supreme Court has held that "what is indispensable to such a decree is, that there should be declared the fact, nature, and extent of the default which constituted the breach of the condition of the mortgage, and which justified the complainant in filing his bill to foreclose it, and the amount due on account thereof, which, with any further sums subsequently accruing, 10 Coffin v. Heath, 6 Met. (Mass.) 76. 13 Clark v. Reyburn, 8 Wall. 318; Howell v. Western R. Co., 94 U. S. 463; Chicago & V. R. Co. v. Fosdick, 106 U. S. 47; Perine v. Dunn, 4 J. Ch. (N. Y.) 140. Twenty days has been held insufficient. Chicago & V. R. Co. v. Fosdick, 106 U. S. 47. In one case it was held that eighteen months should be allowed. American L. & Tr. Co. v. Union Depot Co., 80 Fed. R. 36. In another, four months was held to be sufficient. Columbia F. & Tr. Co. v. Kentucky Union Ry. Co. (C. C. A.), 60 Fed. R. 794. 14 Clark v. Reyburn, 8 Wall. 318. 15 Seton on Decrees (4th ed.), 1091; Chicago & V. R. Co. v. Fosdick, 106 U. S. 47, 71; Sheriff v. Sparks, West, 130; Senhouse v. Earl, 2 Ves. Sen. 450; Whiting v. Bank of U. S., 13 Pet. 6. 16 Edwards v. Cunliffe, 1 Madd. 287; Seton on Decrees (4th ed.), 1088. 17 Monkhouse v. Corp. of Bedford, 17 Ves. 380; Geldard v. Hornby, 1 Hare, 251; Holford v. Yate, 1 K. & J. 677; Coombe v. Stewart, 13 Beav. 11. 18 Campbell v. Holyland, L. R. 7 Ch. D. 166; Seton on Decrees (4th ed.), 1088. 19 Patch v. Ward, L. R. 3 Ch. 203, 212; Seton on Decrees (4th ed.), 1098. and having become due, according to the terms of the security, the mortgagor is required to pay within a reasonable time, to be fixed by the court, and which if not paid, a sale of the mortgaged premises is directed.20 By rule, "in suits in equity for the foreclosure of mortgages in the Circuit Courts of the United States, or in any court of the Territories having jurisdiction of the same, a decree may be rendered for any balance that may be found due to the complainant over and above the proceeds of the sale or sales, and execution may issue for the collection of the same, as is provided in the eighth rule of the Supreme Court regulating the equity practice, when the decree is solely for the payment of money." It has been held that this rule obviates the necessity of a prayer in the bill for such relief, although it is the better practice to pray for it specifically." 21 20 Chicago & V. R. Co. v. Fosdick, 106 U. S. 47, 70, per Matthews, J. But see Grape C. C. Co. v. Farmers' L. & Tr. Co., 63 Fed. R. 893, 986; supra, § 316, note 4. 21 Equity Rule 92; Northwestern M. L. I. Co. v. Keith (C. C. A.), 77 Fed. R. 374. 22 Seattle, L. S. & E. Ry. Co. v. Union Tr. Co. (C. C. A.), 79 Fed. R. 179. The court may, however, where the mortgage does not provide that the principal shall become due upon a default in interest, direct that the property be sold as an entirety and that the principal as well as the interest be paid out of the proceeds. In such a case it is a fatal error to declare in the decree of foreclosure that the whole debt is due. The power to treat the principal as due upon a default in interest is not implied by a provision giving the trustee the right to take possession upon such a default, to apply the income on account of principal after payment of overdue interest, and to cause the property to be sold as an entirety; where the mortgage also provides for the surrender by the trustee of possession upon payment of arrears of interest, costs and expenses at any time before the sale. Grape C. C. Co. v. Farmers' L. & Tr. Co. (C. C. A.), 63 Fed. R. 891. A mortgage and the bonds secured thereby are to be construed together, and a provision in a mortgage concerning the method of distribution in case of a foreclosure, which is not contained in the bonds, will control. Low v. Blackford (C. C. A.), 87 Fed. R. 392. It has been said that if the trustee improvidently declares the principal due, the court may set that declaration aside. Mercantile T. Co. v. Baltimore & O. R. Co., 89 Fed. R. 606, 610. A decree directing that the surplus upon a foreclosure sale after payment of preferential claims should be divided equally among the bondholders was held not to deprive the coupon holders of a preference given them in the mortgage. Burke v. Short, 79 Fed. R. 6. A provision that the mortgagor shall remain in possession for six months after default in interest was held not to preclude him from bringing a foreclosure suit immediately upon the default. Farmers' L. & Tr. Co. v. Winona S. W. Ry. Co., 59 Fed. R. 957. Such and similar provisions are usually construed as cumulative to the ordinary remedy |