Supreme Court of United States.
*450 Mr. A.C. Snyder for appellant.
Mr. James Bumgardner, Jr., and Mr. A.B. Browne for appellees. Mr. A.T. Britton was with them on the brief.
MR. CHIEF JUSTICE FULLER delivered the opinion of the court.
Describing the decree of May 4, 1878, as "interlocutory," and that of November 30, 1887, as "final," appellant assigns errors as follows: That the decree of May 4 is erroneous, because it in effect overruled the demurrer to the bill; and denied appellant's motion to file its amended and supplemental answer; and that the decree of November 30, 1887, is erroneous, because (1) it rejected the petition for a rehearing; (2) held the deed of November 20, 1876, valid; (3) overruled appellant's exceptions to the master's report; (4) held that the deed to plaintiffs had priority over that of October 11, 1875; *451 (5) held that the debt of appellant was not entitled to priority under the provisions of the deed to plaintiffs; and because (6) it should have held that the appellant was entitled to the fund in controversy, if for no other reason, upon the ground of its judgment obtained after Glendy had acquired the legal title to the land. If the decree of May 4, 1878, were final, no errors can now be assigned to it or considered upon this appeal. And if that decree, being final, covered all the grounds of error urged to the decree of November 30, 1887, then the latter decree must necessarily be affirmed. The application for a rehearing was confessedly made after the adjournment of the May term, at which the prior decree was entered, and too late if that decree were final. Equity Rule 88; McMicken v. Perin, 18 How. 507, 511; Roemer v. Simon, 91 U.S. 149; Central Trust Co. v. Grant Locomotive Works, 135 U.S. 207, 224.
The controversy raised by the pleadings and to be determined by the court was whether the property passed under the deed to plaintiffs, or under that to Mathews and whether the bank was entitled to priority. The effect of the sale by consent was merely to substitute the fund in place of the real estate and did not change the issues. On behalf of the bank it was claimed that the trust deed to the plaintiffs was void on its face, and that by the terms of that deed, if valid, the debt of the bank was preferred. By the amended and supplemental answer, which it sought to file, the bank raised the question that Glendy, not having the legal title when he executed the deed to the plaintiffs, and having by his prior deed to the bank divested himself of his equitable title, the plaintiffs did not, as Glendy's grantees, under a conveyance "without any warranty whatever," occupy the position of bona fide purchasers, nor were they protected by the recording statutes of the State; and the facts set forth therein involved, moreover, the position urged in the petition for rehearing, that the deed to the plaintiffs being simply a grant without covenants, Glendy's after-acquired legal title did not enure to them and that the bank became entitled to the fund by virtue of its judgment, which was recovered after Glendy acquired the legal title. *452 So that all these matters were necessarily passed upon by the court and the decree in terms declared that the facts stated in the amended and supplemental answer did not change the rights of the parties in the cause, made the injunction perpetual and directed the fund to be brought into court for distribution "in accordance with the provisions of the deed of Robert J. Glendy to Hugh W. Sheffey and James Bumgardner, Jr., bearing date on the 20th day of November, 1876." This finally determined the entire controversy litigated between the parties and nothing remained but to carry the decree into execution. The bringing of the fund into court was for the final distribution as decreed, and not to be held pending the ascertainment of the principles upon which it should be distributed. Hill v. Chicago & Evanston Railroad Co., ante, 52, and cases cited.
The subject was much considered and many cases referred to and classified and the distinctions indicated, in Keystone Iron Co. v. Martin, 132 U.S. 91. It is there shown that where the entire subject matter of a suit is disposed of by a decree, the mere fact that accounts remain to be adjusted and the bill is retained for that purpose, does not deprive the adjudication of its character as a final and appealable decree.
It is true, as pointed out by Mr. Justice Field in Hill v. Chicago & Evanston Railway, supra, that an appeal may be taken from a decree in an equity cause, notwithstanding it is merely in execution of a prior decree in the same suit, for the purpose of correcting errors which may have originated in the subsequent proceeding. This was so held in Chicago & Vincennes Railroad v. Fosdick, 106 U.S. 47, 83, and was the rule sanctioned and adopted in Forgay v. Conrad, 6 How. 201, and Blossom v. Milwaukee &c. Railroad Co., 1 Wall. 655. An appeal will lie from such decrees according to the nature of the subject matter and the rights of the parties affected.
But the errors assigned here relate solely to matters included within the adjudication of May 4, 1878, except as the refusal to permit the petition for rehearing to be filed may be otherwise regarded, though that petition was itself predicated upon one of the aspects of the controversy. And as to that allegation *453 of error, we have already seen that the objection is not well taken, even if open to consideration at all. Brockett v. Brockett, 2 How. 238.
Decree affirmed.
