Opinion
12-06-1851
FLEMING & als. v. BOLLING & als.
Stanard and Bouldin, for the appellants. Grattan and Patton, for the appellees.
(Absent Cabell, P.)
A decree which passes upon the whole subject in issue so as to be final in its nature, is not converted into an interlocutory decree by the addition thereto of an order suspending the decree as to the amount of an item of the account involved in the cause, until the decision of another suit brought by another party against both the plaintiffs and defendants in the first suit, in which the amount of that item is claimed by the plaintiff.
Thomas M. Fleming of the county of Goochland, died in 1801, leaving a widow and three infant children. By his will he gave his land to his wife for her life, and at her death to his children. He emancipated his slaves, except those he had received by his wife; and these he gave to her. And he appointed several executors, of whom Edward Bolling, the brother of Mrs. Fleming, alone qualified.
Bolling seems to have acted not only as executor, but as agent for Mrs. Fleming for a number of years. The stock on the farm and the household furniture, he left on the farm for the use of Mrs. Fleming, according to the directions of the will; and he sold all the slaves emancipated by the will, and applied the proceeds of sale to the payment of debts. Some of these slaves he sold at private sale, and two of them he seems to have purchased back himself, selling them as was insisted in the progress of the cause, at much less than they would have brought at auction.
In 1815 Mrs. Fleming and her children instituted this suit in the late Chancery court at Richmond, against Bolling, as executor of Thomas M. Fleming, and his official sureties. In their bill, after stating the provisions of the will and the qualification of Bolling, they charge that he received and disposed of the crops grown on the land for a number of years, sold a large number of slaves, and that he had failed to apply the funds which came to his hands to the payment of the debts of the estate, and had not settled his accounts. And they pray for a settlement of the account, that the executor may be compelled to apply the assets in his hands to the payment of the debts of the estate; and that the balance remaining after discharging the debts may be paid over to them; and for general relief.
Bolling and his sureties answered the bill; and the accounts were referred to a commissioner. The report of the commissioner was twice recommitted. In the third report, which was returned in January 1826, the commissioner made alternate statements, presenting the views of the plaintiffs and defendants. On this last report the controverted questions were reduced to three: one was in relation to the price of the slaves sold by the executor at private sale; another was in relation to a debt which the executor claimed to have been due to him from Thomas M. Fleming at his death; and the third was in relation to a credit claimed by the executor for a sum of money paid to James Lyle on account of a debt due to him by Thomas M. Fleming in his life time. It appeared that a certain William R. Fleming had in December 1806, executed to the executor Bolling, his bond for £ 226. for slaves purchased by him; and that Bolling had assigned this bond to Lyle in part discharge of the debt due from Thomas M. Fleming to Lyle. William R. Fleming became insolvent, so that Lyle failed to recover the amount of the bond from him; and he insisted upon his right to have the amount paid to him either by Bolling the executor, or out of the land of Thomas M. Fleming, upon which he held a mortgage from Fleming for the security of his debt, which he was then seeking to enforce in the United States court.
By the statement A of the report, which gave the executor credit for this payment to Lyle, there was due to him from his testator's estate on the 31st of December 1808, the sum of 1129 dollars 29 cents; and it appeared by a former report that he was indebted on his account as agent at the same date, the sum of 665 dollars 34 cents.
At the June term 1826 the cause came on to be heard upon the report, when the Court made an entry that " the Court not being advised whet decree should be rendered in the premises, time is taken until the next term to consider thereof."
On the 6th of February 1828, James Lyle as administrator de bonis non with the will annexed of James Lyle sen'r, deceased, filed his bill in the late Chancery court at Richmond against Edward Bolling, as executor of Thomas M. Fleming, and the children of Thomas M. Fleming and others, in which he stated the indebtedness of Thomas M. Fleming to his testator, and that the debt was secured by a mortgage on Fleming's land; that in 1804 his testator had instituted a suit in equity in the Circuit court of the United States, against these same parties to have the mortgage foreclosed; and that an objection had been taken to the jurisdiction of the Court, upon which the plaintiff was advised that he must be turned out of Court. He further stated the assignment by Bolling, as executor of Fleming, of William R. Fleming's bond, which had not been paid, owing to the insolvency of the obligor, and that he was entitled to have satisfaction for the amount of said bond from Bolling and his sureties, or out of the land. That he had understood that in the suit of Thomas M. Fleming's devisees against Bolling and his sureties, Bolling was claiming a credit for the amount of this bond, and that it had been allowed him by the commissioner. He therefore prayed that the Court would suspend rendering a decision on the credit claimed by Bolling for the amount of this bond, until the matters contained in his bill could be fully heard and decided on in equity, that the Court would decree a foreclosure of the mortgage and the payment of the balance due thereon out of the proceeds of the mortgaged subject; or would decree the said balance of principal money, interest and costs, to be paid by the defendants or such of them as were liable to pay the same; and for general relief.
Before this bill was answered by any of the parties, the case of Flemings against Bolling and others came on to be heard on the 16th of February 1828, when the Court made a decree, whereby the statement A of the commissioner's report was approved, and the other statements were disallowed; and considering that against the balance of 1129 dollars 29 cents found due to the executor by that statement, ought to be set off the balance on the agency account stated in the commissioner's former report, of 665 dollars 34 cents, which would still leave due to the defendant Edward Bolling, a balance of 463 dollars 95 cents, with interest thereon from the 31st of December 1808, it was decreed that the plaintiff Tarlton Fleming, in his own right, and the other plaintiffs, should severally pay to the defendant Edward Bolling each a third part of the said balance last mentioned, as their respective portions, with interest thereon at the rate of six per cent. per annum, from the 31st of December 1808 until paid; and that they should pay to the defendants their costs. " But this decree, as to the amount due on a bond executed by William R. Fleming to the defendant Edward Bolling, executor of Thomas M. Fleming deceased, dated the 19th of December 1806, which bond was assigned by the defendant Edward Bolling to James Lyle, on the 22d of December 1806, and for the amount of which bond the said Edward Bolling has received a credit in his administration account settled in this cause, say for seven hundred and fifty-three dollars and thirty-three cents, with interest thereon from the 7th day of April 1806, is to be suspended until the cause depending in this Court between Lyle and Fleming's executor and others shall be decided."
After this decree was entered, the defendants to Lyle's suit answered the bill contesting his right to recover the amount of William R. Fleming's bond; and it appeared that allowing them a credit for that bond, the whole of Lyle's debt was discharged.
In the progress of that cause a decree was entered in both causes in 1829, directing the plaintiffs in the first cause to pay into bank the amount decreed against them. There were also orders made in the causes removing them first to the Circuit court for the county of Henrico; and afterwards to the Circuit court of the town of Petersburg.
The case of Lyle v. Bolling ex'or, and others, came on finally to be heard on the 14th of July 1842, when the Court dismissed the bill with costs. And in June 1843, the plaintiffs in the first cause applied to the Court for leave to file a bill of review to the decree of February 1828; or if the Court should not consider that decree final, then for a rehearing of that cause. But the Court rejected both motions; the decree having been pronounced according to the admissions of the plaintiffs' counsel ten years before the motion was submitted. Whereupon the plaintiffs applied to this Court for an appeal, which was allowed.
Stanard and Bouldin, for the appellants.
Grattan and Patton, for the appellees.
OPINION
MONCURE, J.
The petition for the appeal in this case was preferred in 1844, and complains of errors in a decree of the late Superior court of chancery for the Richmond district, rendered on the 16th of February 1828--sixteen years before the petition was preferred. The question which first presents itself for the decision of the Court is, whether the decree was final or interlocutory. If final, the appeal when applied for was barred by the limitation prescribed by law, and must be dismissed as having been improvidently allowed; if interlocutory, it will then be necessary to decide the other questions arising in the case.
It will be admitted on all hands that the decree would have been final in form and substance, but for the suspending order contained in the latter part of it. The former part of the decree bears every mark of finality upon its face. In the report of the commissioner on which the decree was rendered, alternative statements were made embracing all the subjects of controversy in the case; and the Court approving of one of the statements and disallowing the others, ascertained a balance due from the plaintiffs to the defendant, apportioned it among the plaintiffs, and decreed the payment of the same and the costs of the suit by them to the defendant. At the conclusion of the decree an order of suspension was made in these words: " But this decree as to the amount due on a bond executed by William R. Fleming to the defendant Edward Bolling, executor of Thomas M. Fleming deceased, dated the 19th of December 1806, which bond was assigned by the defendant Edward Bolling to James Lyle, on the 22d of December 1806, and for the amount of which bond the said Edward Bolling has received a credit in his administration account settled in this cause, say for seven hundred and fifty-three dollars and thirty-three cents, with interest thereon from the 7th day of April 1806, is to be suspended until the cause depending in this Court between Lyle and Fleming's executor and others shall be decided." Does this order of suspension make the decree interlocutory?
The distinction between final and interlocutory decrees has been often considered by this Court, and there are many cases on the subject in our reports. In the case of Thorntons v. Fitzhugh, 4 Leigh 209, Judge Carr, after referring to some of the previous cases, and repeating expressions which had fallen from some of the Judges in deciding them, says, " These cases seem to me to take the true and clear distinction; where any thing is reserved by the Court for future adjudication, in order to settle the matters in controversy, the decree is interlocutory; but where upon the hearing all these matters are settled by the decree, such decree is final though much may remain to be done before it can be completely carried into execution, and though to effectuate such execution the cause is retained and leave given the parties to apply for the future aid of the Court." In the case of Cocke v. Gilpin, 1 Rob. R. 20, Judge Baldwin investigated the subject very fully, and after adverting to the necessity of resorting to some criterion by which the distinction between the two kinds of decree may be preserved, remarks, " For my own part I am aware of no proper criterion but this: Where the further action of the Court in the cause, (which he contradistinguishes from the action of the Court beyond the cause, to which he afterwards adverts) is necessary to give completely the relief contemplated by the Court, there the decree upon which the question arises is to be regarded not as final but as interlocutory."
Let us apply these rules laid down by Judge Carr, and Judge Baldwin, (and approved by this Court) to this case; and enquire in the language of the former, " whether any thing was reserved by the Court, in the decree in question, for future adjudication in order to settle the matters in controversy?" or in the language of the latter, " whether the future action of the Court in the cause was necessary to give completely the relief contemplated by the Court?" To ascertain what was contemplated by the Court in making the suspending order before mentioned, it will be necessary to take some notice of the facts and proceedings in the case. Thomas M. Fleming died in 1801, and Edward Bolling qualified as his executor. In 1815 the widow and children, devisees and legatees of Fleming, exhibited their bill against Bolling and his securities, in the late Superior court of chancery for the Richmond district, for the purpose of obtaining a settlement of the executorial account, and a decree for the balance that might be found due thereon. This suit was pending in said Court until the 16th of February 1828, when the decree before mentioned was rendered. During the progress of the suit three different reports were made by the commissioner under different orders of the Court; the last of which reports bears date in January 1826. Among the subjects of controversy before the commissioner and the Court, was the right of the executor to a credit for the amount of William R. Fleming's bond mentioned in the order of suspension aforesaid. That bond had been given for the purchase of slaves belonging to the testator's estate, and on the 22d of December 1806 was assigned by Bolling as executor to Lyle, on account of a mortgage on the testator's real estate. Suit was not brought on the bond until 1808; judgment was not obtained until 1810; and after several executions had been sued out on the judgment, one of which had been levied on slaves which were discharged for want of an indemnifying bond, a fi. fa. was returned nulla bona. On the one hand Lyle contended that this bond was assigned to him with the understanding that Miller would sign it as surety, and that the proceeds, when collected, and not till then, were to be applied to the payment of the mortgage, and insisted that Miller having refused to sign the bond, Bolling was bound to take it back but refused or failed though required to do so; whereupon he brought suit on the bond & c., but having failed to recover the money, credit should not be given therefor. While on the other hand Bolling contended that the bond was assigned by him to Lyle in part payment of the mortgage, that Lyle's only recourse was upon the assignment, and that he had lost that recourse by want of due diligence. To the last report of the commissioner in the case an exception was taken by the plaintiffs for allowing credit to the executor for the said payment to Lyle, " because (in the language of the exception,) that payment is not established, and a suit is now actually pending in the Circuit court of the United States at Richmond, to compel the payment of that very amount from the representatives of Thomas M. Fleming, and if allowed on this account the estate may be compelled to pay the same twice; and plaintiffs refer to the proceedings in said suit." That suit had been instituted in 1804 to foreclose the mortgage, was then pending, and in it a controversy was then going on about the propriety of a credit for the said bond of William R. Fleming. It would seem that the Court suspended the decision of this case for some time, with a view of ascertaining what would be the decision in that suit in regard to the said credit; for in July 1826, the next term after the the said last report was returned, an entry was made that " the Court not being advised what decree should be rendered in the premises, time is taken until the next term to consider thereof:" And the next order which was made in the case was the decree of the 16th of February 1828. When that decree was rendered it had been ascertained that the suit in the Federal court would be dismissed for want of jurisdiction: And in the same month in which the said decree was rendered, and a few days before, to wit, on the 6th of February 1828, Lyle exhibited his bill in the said late Superior court of chancery where this case was then pending, making Bolling the executor, and his sureties, and the heirs of Thomas M. Fleming defendants, giving an account of the case in the Federal court and of the assignment of William R. Fleming's bond, and the proceedings thereon; and praying a foreclosure of the mortgage, a sale of the mortgaged premises, and payment of the balance due on the mortgage debt out of the proceeds of sale, or by such of the defendants as might be liable therefor. He refers to the bill in this case, states that he had been informed that in an account taken in the case Bolling had improperly claimed and been allowed a credit for the amount of said bond, which said Lyle was ready to shew said Bolling was not entitled to, and prays the Court to suspend rendering any decision on the said credit until the matters contained in said bill could be fully heard and decided on in equity.
In this state of things the decree of the 16th of February 1828 was rendered, and the question recurs did the Court which rendered it contemplate any further judicial action in the case to settle the matters in controversy therein? This Court is of opinion that it did not. The case had been pending about thirteen years. It involved the settlement of old transactions, some of which had been subjects of much controversy; and it was doubtless desirable, both to the Court and the parties, that the case should be ended; provided it could be ended without detriment to any of the parties, arising from the pretensions of Lyle in regard to the credit for the amount of William R. Fleming's bond. The suit in the Federal court being about to be dismissed; and a new suit having just been commenced by Lyle which might last, as it actually did, some thirteen years longer; the Court seems to have determined to decide this case, and turn the parties over to the suit just brought by Lyle for any further adjustment of their rights and liabilities in regard to the said bond which the result of that suit might render proper. The right of the executor to a credit for the amount of said bond was a question legitimately raised and regularly controverted in the case: being maintained by the executor on the one side, and denied by the legatees on the other. The proper parties were all before the Court. Lyle was neither a necessary nor a proper party to the case. The case was therefore in a situation to be decided, (if it was not the duty of the Court to decide it, if desired by the parties,) without waiting for the decision of Lyle's suit. In deciding it, the Court was of opinion that the executor was entitled to credit for the amount of said bond, and therefore allowed it; the effect of which allowance was to give the executor a decree against the legatees for 463 dollars 95 cents, with interest from the 31st of December 1808. The amount of the credit was 753 dollars 33 cents, with interest from the 7th of April 1806; and if it had been disallowed, the decree would have been the other way for the difference between the two sums, and interest. While however the Court deemed it proper to decide the case, yet, as Lyle was not a party to it, and therefore not bound by the decree, it deemed it also proper to protect the legatees against the possible consequences of a different decision in Lyle's suit, of the question in regard to the propriety of the credit for the amount of William R. Fleming's bond. Therefore the suspending order was added to the decree; the object of which seems to have been, not to reserve the question for future decision by the Court in this case, but to prevent the enforcement of the decree until Lyle's suit was decided; and to subject the parties to such directions as might seem proper to the Court in that suit, when it should be decided.
That the Court did not intend to reserve the question in regard to the propriety of said credit for future decision in the case, seems to be manifest from the terms of the decree. By it the Court expressly approved the account of the commissioner containing the credit, disallowed the accounts from which the credit was excluded, ascertained the balance due to the executor, and decreed the payment of the same with costs. This was a plain action of the judicial mind upon this question, between these parties; and seems to be wholly inconsistent with an intention in the same decree to suspend judicial action on the same question. If however the Court intended to say, that while it judicially acted upon the question in this case, and between these parties, it did so without prejudice to any judicial action which might appear to the Court in Lyle's suit to be proper; then the decree is consistent and reasonable in itself. If the Court intended to suspend judicial action on the question, why was any decree made in the case? Or, if there was any advantage in deciding on all the questions in controversy except that in regard to William R. Fleming's bond; why was not the report confirmed as to all other matters, and left open as to that? Or, if the Court intended to decree on the whole matter but reserve to itself the power of reforming the decree on motion, if the decision of Lyle's suit should render such reformation proper; why was not such reservation expressly made in the decree? Whether such a reservation would have made the decree interlocutory, is a question which need not be considered, as no such reservation is contained in the decree. The object which the Court seems to have had in view could better be attained by rendering a final decree in the case without prejudice to any order that might be proper to be made in Lyle's suit in regard to the single matter of William R. Fleming's bond. By that course old and troublesome transactions would be settled by a decree, which, as the law then was, could not be disturbed after the lapse of three years; while, at the same time, the plaintiffs would be secured against all possible danger by the suspension of the decree until Lyle's suit should be decided. That danger was a remote one to say the most of it. If Lyle should fail in his suit, as the Court when it rendered the decree must have expected he would, and as turned out to be the case, then there would be an end of the suspension, and the decree in this case might be enforced. If Lyle should succeed, his first recourse would be against Bolling and his sureties, who in that case would undoubtedly be bound in the first place for the amount of William R. Fleming's bond; and, upon payment by them, they would be entitled to enforce the said decree. The only contingency upon which it would be necessary to resort to the plaintiffs in this case, was the success of Lyle in the suit, and the inability of Bolling and his sureties to pay the amount of the recovery. In that double contingency the mortgage would be enforced for the payment of the amount, and the heirs of the mortgagor (the plaintiffs in this case) would be protected by a perpetual injunction of the decree in Bolling's favour, and by a decree over against Bolling and his sureties, to such extent as might be proper. All the parties concerned being before the Court in Lyle's suit, the principles of equity would enable and require it to do justice among them by laying the burden at once on the right shoulders, or giving one defendant a decree over against another, or by the exercise of its restraining powers, as might seem to be just and proper.
But it is said that the period of suspension was indefinite, and that the Court could not have intended to leave it to the clerk to determine when the suspension was ended, but must have intended to decide that question itself. The period of suspension being capable of being rendered certain, is in effect as definite as if it had been for a given time. And in the event which occurred, to wit: the decision of Lyle's suit against him, it was only necessary to exhibit an official copy of the decision to enable the clerk to issue execution on the decree. That was in point of fact the very course pursued; and the execution was quashed, only because more than a year had elapsed after the decree was rendered, before execution was sued out. On a scire facias afterwards issued, the execution was awarded by the Court. Had Lyle's suit been decided differently, and any occasion had arisen for preventing the execution of the decree in this case, such order would have been made by the Court in that case as would have relieved the clerk from all embarrassment in regard to the propriety of suing out the execution. And even if it had been necessary to refer to the Court the decision of the question, whether the period of suspension was ended, or whether an execution might be issued on the decree, it is not perceived that such necessity would render the decree less final; being matter relating only to the execution of the decree.
Again it is said that the decree was treated as interlocutory by the Court and counsel; orders having been afterwards made in the case. The only orders afterwards made in the case were in relation to the transfer of it, at different times, to Courts which succeeded to the late Superior court of chancery of the Richmond district, and in 1840 to the Circuit court of Petersburg; and in relation to the payment of the amount of the decree into bank. On the other hand the Court treated the decree as final on the ground assigned for overruling the motion for leave to file a bill of review, and in awarding execution upon the scire facias. But if the decree was in fact final, its character could not be changed by the manner in which it was afterwards treated by the Court.
And again it is said that to treat the decree, under the circumstances of this case, as final, would operate a surprise upon the appellants, and subject them, at the same time, to great and irremediable injury. If this be so, the necessity of so treating the decree must be matter of extreme regret to the Court. But might it not on the other hand be said that to treat the decree as interlocutory, would subject the appellees to at least as great and irremediable injury. The law limiting the right of appeal was intended to remedy a great evil; and to put an end to litigation. The period of limitation, when the decree in this case was rendered, was three years; but has been since extended to five years. More than five times the former, and three times the latter period elapsed after the rendition of the decree, before the appeal was applied for. Had the decree been interlocutory in keeping open a single matter, yet being certainly intended to be final as to all other matters, the appellants could at once have appealed from it; and no good reason appears for their not having done so. Were this Court now to set aside a decree made twenty-five years ago, and require a resettlement of transactions which commenced fifty years ago, which could not be settled without great difficulty when they were comparatively fresh, and the parties and their witnesses alive, and which, now that the parties and witnesses may all be dead and the vouchers lost, could not be expected to be correctly settled at all, great and irremediable injury might be done to the appellees. But it is the duty of the Court to decide the question of law whether the decree is interlocutory or final, without being influenced by the consequences of the decision, except so far as they may throw light on the question to be decided. And the Court being of opinion that the decree is final, the appeal must therefore be dismissed.
DANIEL, J. dissented.
APPEAL DISMISSED.