Grant v. Phoenix Mut Ins Co

• Decision Date: 18 December 1882
• Citation: 1 S.Ct. 414,27 L.Ed. 237,106 U.S. 429
• Parties: GRANT v. PHOENIX MUT. L. INS. CO
• Court: U.S. Supreme Court

106 U.S. 429

1 S.Ct. 414

27 L.Ed. 237

GRANT v. PHOENIX MUT. L. INS. CO.

December 18, 1882.

This is an appeal from the following decree in a suit for the forclosure of certain deeds of trust in the nature of mortgages to secure the payment of money:

'The cause came on to be heard upon the pleadings and proofs therein, and having been submitted by the counsel of the respective parties and duly considered by the court, and it appearing to the court that said defendant, Albert Grant, is not entitled to any relief under his cross-bill in this cause; that the plaintiff is the holder and owner of the several obligations of said Grant, secured by the deeds of trust on the real estate prayed in the original bill of complaint herein to be sold for the payment of the indebtedness thereon, and mentioned and set forth in the third, fourth, fifth, sixth, seventh, and eighth paragraphs of said bill; that said Grant has made default in the payment of his said obligations, on which he is indebted to the plaintiff in large sums of money, with long arrearages of interest; that said Grant has not paid taxes on said real estate for a number of years, and the same are in arrears for upwards of $20,000; that said indebtedness of said defendant, Grant, to the plaintiff largely exceeds the value of said real estate, and that the plaintiff has no personal security for its said debt; it is this second day of March, A. D. 1882, ordered, adjudged, and decreed that this cause be, and the same hereby is, referred to the auditor of the court to state the account between the plaintiff and the defendant, Albert Grant; the amount due under said several deeds of trust on said real estate prayed to be sold in said bill; the amounts due said judgment and mechanic's lien creditors referred to in said bill; whether the same are liens upon any of said real estate; the relative priorities of the claims of said creditors and the plaintiff, and the value of the said real estate,—all from the proofs in this cause, except as to said mechanic's lien,—and report the same to this court. And said auditor shall further ascertain and report to this court the amount due for taxes in arrears on said real estate, and whether the same or any part thereof has been sold for taxes, and if so, when, for what taxes, for what amount, and to whom.'

To this was added an order appointing a receiver to take possession of the property, make leases, etc.

Wm. A. Meloy, for appellant.

W. F. Mattingly and R. T. Merrick, for appellee.

WAITE, C. J.

A motion is now made to dismiss because the decree appealed from is not a final decree.

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 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, 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...