W. R. (William Randolph) Hill.

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received their distributive shares twice.

O'Xeall, J. The determination of this ancient and vexatious case,
on grounds satisfactory to the parties, is hardly to be expected ; but it is
to be hoped, that it may be sustained by such reasons, as will satisfy the
bar and the intelligent disinterested community, who have taken so deep
^ , an *interest in it. This hope is expressed, not with a view to
-• deprecate censure, or to prevent a critical examination of our
judgment; but from a feeling, which has been eloquently described by
our learned, venerable, and amiable Chancellor (De Saussure) when he
said iu this very cause, that " next to doing justice, the greatest consola-
tion of Judges, is so to administer that justice, as to satisfy the parties
that the merits of their causes have been fully brought out, ivell consid-
ered, and impay-tially decided.''''

It is first to be examined and determined whether the appellant has
now the right to go back beyond the decree of Chancellor James, at
June Term, 1822, and that of the Court of Appeals in Equity affirming
his decree, at December Term, 1823. This will depend upon the cha-
racter in which they are to be viewed ; if they are together a final
judgment in the cause, then there can be no doubt that the appellant will
be estopped. But if they have not this character, then they cannot
preclude the appellants from examining the whole case

The distinction between a final and an intei'locutory judgment has not
been heretofore generally understood ; and the Court have been again
and again eral^arrassed in determining on the question whether the party
had the right to appeal, which has been supposed to depend on the
question whether the decree was interlocutory or final. On looking into
the Act of 1808, 1 Brev. Dig. Tit. 58, sect. C3, I am perfectly satisfied
that a party has the right to appeal from " anij order or decree of any
Judge presiding on the Circuit." The words quoted are those used in
the Act when speaking of and directing the manner in which appeals are
to be taken. The distinction between interlocutory and final orders or
decrees is not noticed, and a general right of appeals is plainly given
from any order or decree from which any person may wish to appeal.
The circumstance, therefore, that Chancellor James's decree was appealed
from and affirmed by the Court of Appeals, does not aid us in giving
character to the judgment. Both may be interlocutory only.

In the case of Travis v. Waters, 1 John. Ch. Rep. 88, Chancellor

;»: i r j-i Kent, speaking of a decree which he declared to *be a final one,

-^ said, "It was made upon the coming in of the Master's report,

ascertaining the lands to be conveyed, and the balance to be previously

paid. It was the final end and closing of the controversy, and was



analogous to ^ final, as contradistinguished from an interlocutory judg-
ment at law." This concluding illustration of Chancellor Kent seems
to me to point us to the true conception of a final decree. Every one
having only a slight acquaintance with legal proceedings, knows that at
law an interlocutory judgment is predicated upon the default of one of
the parties, and determines that the party in whose favor it is rendered is
entitled to recover. But it may, as of course, be opened and set aside on
terms in some cases — in others it is Gnal as to the right to recover; but
the extent of the recovery is yet to be ascertained Keeping this illus-
tration in our minds we should class interlocutory orders or decrees into
two kinds. 1st. Those which are of course to be opened and set aside
on a party applying to have it done and complying with the usual terms ;
2d. Those which fix the right of the party to recover, and which cannot
be vacated by the Chancellor, but which still require something farther
to be done in order to ascertain and fix the nature, amount, or quantity
of the recovery.

The case of Travis v. Waters, was for a specific performance of a con-
tract, for the sale of land, and for an account. " In October, 1808, the
Court decreed a conveyance of part of the premises, and directed a Master
to take an account of the quantity to be conveyed, and of the payments,
and to ascertain the balance due, if any, to the defendant ; that the same
be paid, and that the conveyance thereupon be made ; and the question
of costs was reserved until the coming in of the Master's report. From
this decree there was an appeal to tiie Court of Errors, and the decree
was afBrmed." The question was, whether this decree, or that of 1813,
upon the Master's report, made up under its direction, was the final
decree ? The Chancellor, as I have before said, held the latter to be
final, and in declaring his judgment, assigned the reasons which I have
already quoted. Speaking of the decree of 1808, he said, it "cannot be
so regarded, (i. e. as a final decree) for though the right of *a r^^-c
specific performance was declared generally, yet the extent of '-
that right and the conditions upon which it was to depend, were not
ascertained." An appeal was taken from this decision of Chancellor
Kent, and his decree affirmed by the Court of Errors, 12 John. Rep.

In the case of the Methodist Episcopal Church v. Jaques, 1 John.
Ch. Rep. 450, decided in June, 1815, the decree declared the principles
on which the account should be taken, viz. : 1st. That the marriage set-
tlement of the 25th of September, is valid and binding ; 2d. Tliat the
defendant, J. D. J., should account for the whole personal estate of his
wife, which came to his hands, but without interest; 3d. That he should
account for the rents and profits which he received of her real estate,
including the leasehold and freehold estate purchased in by him, under
the operation of Heyl's mortgage. 4th. No allowance was to be made
to the defendant, J. D. J., for the maintenance of his wife and family,
during the coverture. 5th. That the real estate left by Mrs. Jaques,
including the lands in which the Chancellor, under his third head, had
set up a resulting trust in favor of her estate, should be sold, and the
proceeds brought into Court, to the end, that the same might be distri-
buted according to the deed and will of Mrs. J. In 2 John. Ch. Rep.
^543, September, 1817, the cause came again before the Chancellor on a


collateral question of practice, in relation to the evidence taken before
the Master; and in 3 John. Ch. Rep. 1, a disposition of i)art of the
fund in Court was decreed. In 3 John. Ch. Rep. 77, (in October and
November, 1817,) it was again presented to the Chancellor, on excep-
tions to the Master's report. Some of the exceptions were allowed,
others disallowed. In the course of his decree, he examined the question,
what power of disposition a feme covert has over her separate estate, and
decided that she was to be considered a feme sole, to the extent only of
the power given her by the marriage settlement. The case was re-com-
raitted to the Master, with instructions : he reported in conformity
thereto ; and in June, 1818, there was a confirmation generally. The
defendants, J. D. J. and R. J. appealed from this decree, and in January,
^ -, 1820, the cause was heard in *the Court of Errors, 17 John. Rep.
-J 548. A preliminary objection was interposed, which raised the
question, which is the final decree in the cause? It was held by all the
Court, that the decree of June, 1818, was the final decree. Ch. J.
Spencer, (at page, 559,) said, "an appeal from a final decree opens for
consideration all prior or interlocutory orders or decrees any ivay
connected with the merits of the final decree.''^ This rule was concurred
in by the whole Court, and the appellants were heard on the whole cause.
The Court reversed the Chancellor's decisions in various respects, holding
that a feme covert, in respect of her personal estate, is to be regarded as
Si feme sole in Equity, so far as regards her power of charging or dis-
])osing of the same, unless specially restrained by the instrument under
which acquires her separate estate. From the leading error of the
Chancellor, in this respect, (as the Court held it to be) they deduced the
corollaries that the Chancellor had erred, in the 2d, 3d, 4th and 5th
heads or principles of the decree of 1815, directing the account, or so
much of them as went to charge the husband with money or property,
given by the wife to the husband during coverture — to establish a result-
ing trust. in the lands purchased with the proceeds of choses in action,
once belonging to the Avife, but given by her to her husband ; or to
disallow the defendant, J. D. J., for the maintenance of his wife and
family during the coverture ; the wife having clearly agreed to bear the
ex]iense thereof out of her separate estate.

From these authorities, it would hardly admit of a question, that the
last decree (that of Chancellor Harper) in this case, was the final decree ;
and not the decree of Chancellor James, and that of the Court of Appeals
affirming it. For, by the latter, (Chancellor James's decree,) it was
decreed, that as the defendant, Nesbit, had sold all the negroes but one,
"that he do deliver up that one to the executor, pay for the other negroes,
according to their value at the time of his purchase, and their hire, and
the hire of the negro retained, from that time to the present time ;" and
" tliat the case be referred to the Commissioner, to ascertain the value
and hire of the said negroes."

^, - >.-| *This decree, so far as it related to the value and hire of the
'-I negroes, is like that in the case of Travis r. Waters In both
a general right of recovery is established, "yet the extent of that recovery"
is "not ascertained." Compare, however, this case, in this respect, Avilh
the case of the Methodist Episco]ial Church v. Jaqnes, and it seems to
me that the decree (of June, 1815^, in the latter went further to fix and*

*J:57] COLUMBIA, JANUARY, 1834. 311

establish a rig'ht of recovery, than the decree in hand. For it will be
remembered that it. declared a resulting trust in the land purchased by
the defendant, J. D. J., and directed it to be sold, and the money brought
into the Court to be distributed according to the deed and will of Mrs.
J. This was certainly as final as that part of Chancellor James's decree,
directing the delivery of the negroes. For the decree establishing the
resulting trust, denied the equitable title to be in J. D. J., and the decree
of sale a direction for distribution, established the rights of the com-
plainants. The reference in each case was, however, necessary to enable
the Court to " end the controversy," and all the decrees prior to the decree
confirming the Commissioner's report, are to be regarded as not conclu-
sive of the right of the parties to I'e-examine them on appeal. For the
appeal from the final decree, "opens for consideration all prior or inter-
locutory orders or decrees any way connected with the merits of the final

But it was supposed in the argument, that the fact that the case had
been adjudged by the Court of Appeals in Equity, was conclusive of the
rights of the parties. Independent of the reason which I have already
assigned, why the decree of the Court of Appeals cannot give character
as a final decree, to Chancellor James's decree, it may be remarked that
in Travis v. Waters, a decree of affirmance by the Court of Errors, in
New York, (which is there as well as the Court of Appeals is here, the
Court in the last resort) was held not to be final, and it would, of course,
be examinable on an appeal from the fin_al decree.

I agree with the respondent's counsel, that if the decree could be
regarded as sl final decree, that it never could be again examined, either
by appeal, by a bill of review, or a *re-hearing. Haskel and r^irn
others v. Raoul, 1 M'C. Ch. Hep. 22 ; Perkins v. Lang, 1 M'C. L ^^^
Cli. Rep. 30, note; Carr i'. Green, Carolina Law Journal, 371- The
Court of Appeals, under the Acts of 1808 and 1824, is the Court in the last
resort ; and like the House of Lords in Great Britain, and the Court of
Error in New York, a decree by it of affirmance or reversal of a final
decree, cannot be examined by a bill of review, or on a motion for re-
hearing, for error in matter of law, apparent on the face of the decree.
Li such a case there can be no appeal to bring the decision in question,
for the controversy is ended. But if the decree of the Court of Appeals
does not end the controversy, and still leaves somcting to be dune, to
enable the Court to pronounce a judgment, it will be examinable on an
appeal from such final judgment.

In the case of Harrison v. Jenkins, decided December Term, 182S, at
Columbia, the defendant did not appeal from the decree of the ClianceUor,
directing the land in dispute to be delivered up, and the defendant to
account for the rents and profits. When the account for the rents and
])rofits was about to be taken, the complainant entered a disclaimer for
the rents and profits, and then the appeal was entered. It was held that
the defendant was not bound to appeal, until the account for rents and
profits had been taken ; and in that case, which is one of vast importance
to the profession, and ought to have been long since published, Judge
Nott, on the question as to the party's right to ap])eal, makes the fol-
lowing remarks, " I tliink that, generally, where the object of the bill is
to obtain the possession of a specific property, the party may and [)erhaps


ought to appeal from the decree, and not to wait tlie event of a reference to
take an account of hire, or I'ents and profits, which are mere incidents that
necessarily follow from the decision of the principal question. Perhaps
he viay not lose his right by thus loaiting, unless some change of property
or circumstances would render it improper for the Court to interfere ; or,
unless by some act or acquiescence of the party, he may have waived his
right. But in a case like this, where the Court has no jurisdiction of even a
. ^Q-i fibre of the *case, he will be entitled to appeal as long as there is
-^ a fragment on which he ea.n lay hold."

The case of Harrison i;. Jenkins, it seems to me, is decisive of the
question we are considering. The Act of 1808, after directing that the
Circuit Court of Equity should be held by any one of the five Judges
who were by it clothed with equitable powers, provides "that the orders
and decrees of the said Judges in all cases wherein appeals shall not be
made to the Court of appeals, hereinafter established, shall have the same
effect with decrees sanctioned by the Court of Appeals." The defendant
has lost the right of appeal from the circuit decree, directing the land to
be delivered up, by not giving notice of his appeal in due time, and on
this account the case had been struck from the appeal docket, at Spring
Terra, 1828. The circuit decree, according to the Act of 1808, was
entitled to have the same effect as if it had been afSrmed by the Court of
Appeals. In that point of view, the riglit to appeal from the final decree,
on the account for the rents and profits, whether the account was taken
or disclaimed, would, if pursued, open all prior decrees, whether of the
Chancellor or Court of Appeals, for consideration, and according to the
most just, righteous and legal result of that case, all prior decrees might
be reversed.

So long as a decree operates merely as authority, or as the reasoning
of the Court to prove the party's right in whose favor it is pronounced,
it may be reviewed and reversed whenever it comes up properly before
the Court of Appeals in any of the subsequent stages of the case. Hall
V. Goodwvn, 4 M'C. 442; Pevton v. Smith, lb. 476; Dunlap v. Craw-
ford, 2 M'C. Ch. Rep. 171; Lenoir u Silvester, 1 Bail. 641; Rose v.
Tidynian, in equity, February Term, 1832, Charleston. The decrees of
Chancellor Ja,mes, and of the Court of Appeals in equity, being not final,
are to be regarded as authority constituting a strong reason why the
cora])lainants are entitled to recover; l)ut examinable on the appeal from
the final decree. I concede to them not only the respect of authority,
but also of the veneration and admiration with which I always have and
*irni ^'^^''"^3'^ shall regard several of *the names then composing the
-J Court of Appeals in Equity ; Init still that both of those decrees
are manifestly wrong, is, I think, so plain and obvious, that the only
reason which can be given why it has so happened, is, because the case
was never brought out before either the Chancellor or the Court of
Appeals. Each decree is predicated upon a statement of facts, which, if
the case had rested upon them alone, would have justified the decrees.
But the bill itself stated other facts which rendered those on which the
decree were based wholly unimportant, and which showed that Price, the
executor had no right to recover the slaves, and that the only real con-
troversy was between Rebecca Turner and the defendant, whether her

*460] COLUMBIA, JANUARY, 1834. 313

conveyance to Mathias Turner should be set aside as fraudulent. This
question was not touched, not even hinted at in either of the decrees.

I shall now proceed to show that, taking everything for granted as
stated in the bill, that Price, the executor has no right to recover. The
bill, after setting out the will, and the fact that the witnesses refused to
prove it, and that administration was granted to Rebecca Turner, who
under the order of the Ordinary, sold the personal estate and purchased a
considerable part of it — that subsequently the will was proved, and the

executor, Price, qualified — that there were no debts against the testator

that the Ordinary had decreed against Rebecca Turner as administra-
trix, a sura of which she was in arrear on account of her administration,
including the price of the negroes sold and pui'chased hy her, refers to
a copy of the decree filed as an exhibit, from which it appears, that
"Joseph Price, executor of the estate of John Turner, returned the cita-
tion issued requiring the attendance of Rebecca Turner, administratrix
of said estate, with an acknowledgment of the service, but refused to
attend — and at the request of the executor, to find each legatee's distribu-
tory share of said estate under the administration, find her proceedings to
stand as follows : An inventory was returned, but there were orders from
the Ordinary to sell at different periods, the whole of the goods and
chattels of the said deceased, which I suppose (says the Ordinary) to
have been done, and the sale bills being returned of different sales amount
to $4,308 15 ; deduct *one-third for the widow, leaves $2,812 10. ^^ .,
There being twelve legatees, the twelfth part of that sum is ^
$239 34, exclusive of expenses, there being no return thereof — which is
each legatee's distributive, which the executor ought to have the govern-
ment of, agreeably to the returns of the administratrix, which is the
decree of the Ordinary." The bill also set out the conveyance by Rebecca
to Mathias, which she alleges to be fraudulent and which has not been
tried, and the sale by Mathias to Nesbit with notice.

In the case of Benson, administrator, v. Price and Byers, 2 N". & M'C.
577, it was held that the sale by Rebecca Turner as administratrix was
valid. In that case as well as the one before us, there was no fraud
alleged on the part of the administratrix. In it Judge Colcock who
delivered the opinion says, "when an administration which has been
granted, is properly revoked, the latter administrator may sue the former,
for money had and received, or in trover for any goods remaining in his
possession by him converted or not duly administered. Any other doc-
trine would be fraught with the most monstrous inconvenience. The
community who are not under the authority of judicial power should be
certain of protection in their rights," In the case of Foster c. Brown,
1 Bail. 221, administration had been obtained by a fraudulent suppres-
sion of the will in which the executor as well as the administrators con-
curred ; at the administrators' sale the slave in dispute was jiurchased by
one of the administrators, from whose possession he went into that of the
defendant, the administrator's son-in-law. It was held that "all-acts
done in the due and legal course of administration are valid and binding
on all interested, although it be afterwards revoked. Nor can the matter
of obtaining the administration, whether fairly or fraudulently, vary the
question." To this I would add as another necessary conclusion from
the facts of that case and the reasoning of my brother Johnson, that as


between the executor and the administrator, the fact that the latter
l)ought at his own sale would not, when he had bona fide parted with
the possession of the slave, render the sale invalid.
*ir9l From these cases I deduce two conclusions, either of which *is
^-' fatal to the plaintiff" Price's right of recovery, as executor. The
first is that if he pursued the property as unadministered assets of his
testator, his only remedy was by action of detinue or trover at common
law. For in this point of view he sets up a legal title, and for its
enforcement he has plain and adequate remedy at law. That he could
not recover at law, is no reason why he should come into Equity ; unless
there was some impediment at law which prevented the assertion of his
legal title and which this Court could remove. He has stated none in his
bill. For the fact that the administratrix might not be able to pay the dis-
tributees or legatees their respective sharf^s of the sum which she was in
arrear, is no ground for the interference of the Court of Equity : it may
be true, and the parties wholly remediless, and the Court of Equity might
be unable to aid them. But if the administratrix was unable to pay, her
securities in the administration bond we should legally presume to be
sufficient for that purpose ; and in the cuse before us it turns out that
Nesbit, the very defendant sought to be charged by this bill with the
value of the slaves, is the security of the administratrix. So there is
nothing in law or fact in this respect to give color to the jurisdiction of
the Court. The second conclusion from the cases cited, is that Price's
legal title as executor is defeated. It does not lie in the mouth of the
executor to say to the administrator whom he may succeed, "you pur-
chased at your own sale and therefore your title is defeated." The lega-
tees may if they choose say so : it is at their election whether the sale is
to be set aside or supported. If the administrator had the slaves in
possession the executor might be entitled to recover — his legal right
would be paramount to that of the administratrix, on showing that she
liad not accounted for the price. But until then, according to Brown r.
Foster, he could not recover. It can be shown that Price has no title
to recover the slaves from the administratrix. For on looking through
the proceedings it appears, that exclusive of her own share, she or
Matthias Turner paid to the legatees more than the value of the slaves
in dispute.

The conveyance by the administratrix to Matthias Turner is to be
^ ,po-i regarded as fair and bona fide, according to its *terms, until the
-" contrary is shown, and for present purposes is conceded to be so
by the former decrees. This was before the Act of 1824, and according
to the case of Legge v. Magwood, State Rep. 116, her conveyance con-
veyed to the defendants the legal estate in the said slaves. This too at
once ousts the executor's title, which is altogether a legal one. The
legatees might possibly set up the trusts of the will against the adminis-
tratrix's voluntary donee, or her alienee with notice.

If the purchase by the administratrix at her own sale may be set aside,
it is equally clear that it may be confirmed. If the executor could have
raised the question, the decree of tlie Ordinary, which as to him is con-
clusive, must be regarded as a confirmation of the sale. Conceding for
the present, that the executor had the right to set aside the sale, and
pursue the specific property — or to have an account for its value, he has

*463] COLUMBIA, JANUARY, 1834. 315

elected the latter, in the account before the Ordinary, and is bound by
his decree, which estops him from averring that the sale was void.

Online LibraryW. R. (William Randolph) HillReports of cases in chancery argued and determined in the Court of Appeals of South Carolina → online text (page 43 of 124)