Caswell v. Comstock

• Decision Date: 01 June 1859
• Citation: 6 Mich. 391
• Court: Michigan Supreme Court
• Parties: David Caswell, Jr., v. Charles C. Comstock and others

6 Mich. 391

David Caswell, Jr., v. Charles C. Comstock and others

Supreme Court of Michigan

June 1, 1859

Heard May 31, 1859 [Syllabus Material]

Appeal by defendants from Kent Circuit in chancery.

G. V N. Lothrop moves to dismiss the case on the ground that the decree appealed from is not a final one, and, therefore, the appeal would not lie.

The following is the decree, omitting the formal portions only and sufficiently indicates what was the case upon which the decree was rendered:

"It appearing that the deed of conveyance, executed by complainant to defendant Comstock, dated December 6th, 1853, and the contract of same date, between same parties, and relating to same subject matter, were cotemporaneous acts, and part and parcel of the same transaction, and that said deed was not intended as an actual conveyance, but that said deed and contract were intended as a security to defendant Comstock for whatever advances he should make under said contract, and for the performance of the undertakings of complainant contained in said contract, with the option on the part of Comstock to purchase premises described in said deed, should he elect to do so within two years from the date of said deed and contract.

"Further, that by a subsequent contract between complainant and defendants Comstock and Chapin, dated August, 1854, Comstock waived his right to become absolute purchaser of said premises.

"Further, that the undertakings of complainant, contained in said last contract, respecting the completion of saw-mill, on said premises, were designed as a security to defendants for the payment of the sums of money agreed to be paid to them by complainant in said first contract, and not as a condition precedent to the performance of the undertakings of the defendants contained in said last contract.

"It is therefore ordered, adjudged, and decreed, that the said last contract, dated August 2d, 1854, be specifically performed by defendants Comstock and Chapin.

"Ordered that it be referred to William Ashley, Jr., to take proof respecting damages, alleged in bill of complaint to have been sustained by complainant on account of alleged breaches of contract of August 2d, 1854. Also, to take proofs of sale, disposition, or conversion, by defendants, of real estate, saw logs, or other personal property, the subject of said last contract, charged in bill of complaint to have been sold, disposed of, or converted by defendants contrary to the provisions of said contract.

"And that he report such proofs, together with the sums with which defendants are charged on account of such damages, and sale and disposition of property as aforesaid.

"And that he compute amount of payments made to defendants by complainant under said contract.

"And report the amount due to defendants from complainant under said contract, after deducting all payments, and all sums chargeable to defendants, as aforesaid, for damages sustained by complainant, and for property sold or converted, as aforesaid.

"And that, in case any balance should be found due to defendants, or either of them, upon the tender of such sum, the defendants, or such of them as hold the legal title thereto, execute, acknowledge and deliver to complainant deeds of bargain and sale of lands mentioned in the last contract [a description of which is given].

"And in case defendants shall, for the space of--days after the tender of sum found due as aforesaid, neglect or refuse to execute said deed, it shall be lawful for complainant to cause a certified copy of this decree to be recorded in the office of register of deeds for county of Kent, and said decree so recorded, shall have the effect of a deed of conveyance of said premises, and the record of said decree shall have the effect of a record of a deed, as notice to subsequent purchasers or incumbrancers, and for all other purposes for which deeds are required by law to be recorded.

"Decreed further, on neglect or refusal of complainant to pay said balance found due defendants, as hereinbefore stated, it shall be lawful for defendants to have premises described in contract of August 2d, 1854, or such portion thereof as shall be necessary, sold at public auction, due notice to be first given, by such person as this court shall appoint, and out of the avails to pay such balance, and costs and charges of sale, refunding surplus to complainant.

"Decreed further, that Comstock be perpetually enjoined from the further prosecution of the suit at law mentioned in bill of complaint."

Mr. Lothrop cited in support of the motion, The Palmyra, 10 Wheat. 502; Brown v. Swan, 9 Pet. 1; Forgay v. Conrad, 6 How. 202; Perkins v. Forniquet, Ibid., 206; Beebee v. Russell, 19 How. 283; Farrelly v. Woodfolk, Ibid., 288; Travis v. Waters, 12 Johns. 507; Jaques v. Methodist Church, 17 Johns. 559; Kane v. Whittick, 8 Wend. 224; Jenkins v. Wild, 14 Wend. 539; Berryhill v. McKee, 3 Yerg. 157; Wing v. Warner, 2 Doug. 288; Prentiss v. Rice, Ibid., 297; Morris v. Morris, 5 Mich. 171.

C. I. Walker, contra, claimed that under the statute the party may appeal from any decree, final or interlocutory--the words of the statute being "any decree or final order." As to what is a decree, he cited Dan. Ch. Pr., 1192. He claimed also, that this decree was final in its character, and did not necessarily contemplate or require further action by the court. He cited Benedict v. Thompson, 2 Doug. 302, 306; Taylor v. Reed, 4 Paige 567; Mills v. Hoag, 7 Paige 18; Dickinson v. Codwise, 11 Paige 189; Wright v. Miller, 3 Barb. Ch., 382; Travis v. Waters, 1 Johns. Ch., 87.

Manning, J. Christiancy and Campbell, JJ. concurred. Martin, Ch. J. did not sit in this cause.

OPINION

Manning J.:

A motion is made in this case to dismiss the appeal on the ground that the decree appealed from is not a final decree. Our attention was called by opposing counsel to the phraseology of the statute, which allows an appeal from "the decree or final order"--the word "final" being used in connection with "order," and not "decree." All decrees are like judgments at law, either interlocutory or final--the latter when they are the final determination of the court on the rights of the parties, and the former when they are auxiliary only to the final determination. And when the word decree alone is used in a statute, we think it is to be understood to mean a final decree, unless there be some thing in the context showing an interlocutory as well as a final decree is intended. The universal understanding--one that has been acted on by both the bench and bar--we believe, has been that a final decree only could be appealed from; and such, we think, is the true construction of the statute.

The decree, after stating a certain contract between the parties should be specifically performed by defen...