Supreme Court of United States.
*430 Mr. Richard T. Merrick and Mr. William F. Mattingly in support of the motion.
Mr. William A. Meloy, contra.
MR. CHIEF JUSTICE WAITE delivered the opinion of the court.
The rule is well settled that a decree to be final, within the meaning of that term as used in the acts of Congress giving this court jurisdiction on appeal, must terminate the litigation of the parties on the merits of the case, so that if there should *431 be an affirmance here, the court below would have nothing to do but to execute the decree it had already rendered. This subject was considered at the present term in Bostwick v. Brinkerhoff, ante, p. 3, where a large number of cases are cited. It has also been many times decided that a decree of sale in a foreclosure suit, which settles all the rights of the parties and leaves nothing to be done but to make the sale and pay out the proceeds, is a final decree for the purposes of an appeal. Ray v. Law, 3 Cranch, 179; Whiting v. Bank of the United States, 13 Pet. 6; Bronson v. Railroad Company, 2 Black, 524; Green v. Fisk, 103 U.S. 518. But in Railroad Company v. Swasey, 23 Wall. 405, it was held that "to justify such a sale, without consent, the amount due upon the debt must be determined... . Until this is done the rights of the parties are not all settled. Final process for the collection of money cannot issue until the amount to be paid or collected by the process, if not paid, has been adjudged." In this the court but followed the principle acted on in Barnard v. Gibson, 7 How. 650; Crawford v. Points, 13 id. 11; Humiston v. Stainthorp, 2 Wall. 106; and many other cases.
The present decree is not final according to this rule. It does not order a sale of the property. It overrules the defence of the appellant as set forth in his cross-bill, and declares that the appellee is the holder and owner of the debt secured by the deeds of trust, but refers the case to an auditor to ascertain the amount due upon the debt, the amount due certain judgment and lien creditors, the existence and priorities of liens, and the claims for taxes. It is true that the court finds the amount due the appellee largely exceeds the value of the property, but this is only as a foundation for the order appointing the receiver. If in point of fact it is not true, the finding will not conclude the parties in the final closing up of the suit. The order for the delivery of the property is only in aid of the foreclosure proceedings, and to subject the income, pending the suit, to the payment of any sum that may in the end be found to be due. If anything remains, either of the income or of the proceeds of the sale after the mortgage or trust debts are satisfied, it will go to the appellant, notwithstanding what has been decreed. There is no order as in Forgay v. Conrad, 6 How. *432 201, Thomson v. Dean, 7 Wall. 342, and other cases of a like character, adjudging the property to belong absolutely to the appellee, and ordering immediate delivery of possession. In Forgay v. Conrad, supra, which is a leading case on this question, it was expressly said by Mr. Chief Justice Taney (p. 204) that the rule did not extend to cases where property was directed to be delivered to a receiver. The reason is that the possession of the receiver is that of the court, and he holds, pending the suit, for the benefit of whomsoever it shall in the end be found to concern. Neither the title nor the rights of the parties are changed by his possession. He acts as the representative of the court in keeping the property so that it may be subjected to any decree that shall finally be rendered against it.
Appeal dismissed.
MR. JUSTICE MILLER dissented.
