But upon an appeal from an interlocutory order of a vicechancellor, the chancellor may make a decree respecting the costs on such an appeal which will authorize the party to enrol the same, and to take out execution against the person, or the property of the party against whom such costs are adjudged.(1) So upon an appeal to the court of errors, if that court awards costs on appeals from interlocutory orders of the chancellor, the decree is in such cases final, so far as respects the costs awarded on the appeal; and these costs may be collected on an execution in the usual manner.(2) See further upon this subject, ante, title Costs, chap. 25. § iv. Until an actual levy no goods or chattels shall be bound by an execution as against a purchaser without notice. By the Laws of 1813, (1 R. S. 487, 4,) this provision extended to lands as well as goods. Every final decree made since the passage of the Revised Statutes, directing the payment of any debt, damages, costs or sum of money, shall bind and be a charge upon the lands, tenements, real estate and chattels real, of every person against whom such decree shall be rendered, which such person may have at the time of the docket thereof, or shall acquire at any time thereafter.(3) Such decree shall cease to be a lien, or bind any such property, against purchasers in good faith, and against incumbrancers subsequent to such decree by mortgage, judgment, decree or otherwise, from and after ten years from the time of filing such decree.(4) From the language of the different sections of the statute, it seems that nothing but a decree finally ascertaining and directing payment of a liquidated sum will bind lands. Compare sections 100, 101 and 102. A decree for an account, and to pay the sum found due upon such accounting, would not be a lien, even if it can be enrolled. (1) Brockway v. Copp, 2 Paige, 578. (3) 2 R. S., 182, § 102. (2) Ibid. (4) 2 R. S., 182, § 103. SECTION II. DISCHARGE. A decree is discharged by a written acknowledgment by the party in whose favor the decree was rendered, that he has been fully paid and satisfied the amount of all money directed to be paid by such decree.(1) See the form, Appendix, No. 241. This must be certified by a vice-chancellor, or master in chancery, to have been duly acknowledged before him by the party signing the same, and that such party was known or made known to him by competent proof.(2) Upon filing with the register, assistant register or clerk with whom the decree was docketted, this acknowledgment, he shall enter in the docket of such decree, a satisfaction and discharge thereof. Such decree shall thereupon be discharged.(3) The court may also order the docket of a decree to be discharged upon a hearing of the parties, and upon satisfactory evidence that it has been fully paid.(4) The register, &c., is to transmit to the clerks of the supreme court, a certificate of the discharge, who shall thereupon enter in the transcript of the docket of such decree the fact that the same is discharged, reversed or vacated.(5) SECTION III. Conveyances executed. EXECUTION OF A DECREE RELATING TO SPECIFIC REAL ESTATE. Where the decree directs deeds or other instruments to be exdecreed to be ecuted by a party to the suit, the ordinary process of contempt must be employed to enforce their execution.(6) There are, however, special cases under our system, in which an officer of the (1) 2 R. S., 182, § 104. (6) Ormsby v. Nicholson, (2) Ibid. (3) Ibid. (5) 2 R. S., 182, § 106. Vernon & Scriv. 115; 1 Turner & Vena court has been empowered by statute, to execute conveyances which before must have been executed by the parties.(1) And in England, by a late statute, 1 William IV., c. 36,(2) a provision has been adopted, that wherever a decree has been made for the execution of deeds by a party, and he neglects or refuses to execute them, and is in prison on process for his contempt, the court may appoint one of the master's to execute the same. A more extensive provision is contained in a statute of NewJersey, by which a decree for the execution of any conveyance shall be deemed equivalent at law and in equity to the conveyance itself. But in our state, except in the cases provided for by statute, I conceive that no legal title or estate can be conveyed by a deed of any master or other officer, however an equitable title may be acquired under the decree, which the court would enforce by delivering possession, and protect by a perpetual injunction. Still much embarrassment may arise to a purchaser without an estate at law, and generally he is not bound to accept a mere equitable title.(3) (1) Partition and Mortgage Cases, see post. (2) Sugden's Acts, by Jemmet, p. 106. (3) It has been necessary to pass a statute to empower masters to execute a conveyance upon mortgage sales. The history of this proceeding in our court is this:-In 1760, an act was passed, authorizing decrees against absent or concealed mortgagors after giving the notice prescribed by the aet, and that upon such decree a writ might be issued to the sheriff commanding him to make sale of the lands at public vendue. Van Schaack's edit. Laws, Vol. I. p. 386. Carpenter v. Guest, 7th June, 1786; Thompson v. Mere, 24th January, 1787. By an act of 1769, this law was continued to 1780. Ibid. Vol. II. 497. A similar act was passed 7th March, 1785, 1 Jones & Varick, 190. But a previous appraisement of the property was required. This was abolished by the law of 13th March, 1787, 2 Jones & Varick, 112. In other cases, however, than those in which the mortgagor was absent or concealed, the decree was for a sale under the direction of a master, and all proper parties to join in the same and in the conveyance. Wilkins v. Rivington, 7th March, 1799. If there was an infant, he had his day to show cause in the usual form. Samler v. Scott, 10th January, 1801. By the act concerning the court of chancery, 3d April, 1801, (Webster's edit., Vol. I. 439,) it was first provided, that all sales of mortgaged premises, to be made under any decree of the court should be made, and deeds executed by the master. So in partition, by the settled English law, the parties are directed to Absent defendants. The cases in which the decree must necessarily be for the parties to execute conveyances, are those of bills for a specific performance to set aside a deed and reconvey; and in England, a decree upon a redemption bill, although, from the doctrine of our court as to the legal estate, it might not be necessary here. In the case of a decree against an absent or absconding defendant, it is specially provided, (§ 129,) that upon the coming in of the report, the chancellor shall make such order thereupon as shall be just. And process shall then issue to compel the performance of such decree, either by sequestration of the real and personal estate of the defendant; or where any execute conveyances to each other mutually; for although at law the legal estate is vested by a partition, yet in equity only an equitable title passes. Whaley v. Dawson, 2 Sch. & Lefroy, 372; Anon. Trin. 1742; 3 Swanst. 139; n. Trickfield v. Butler, from a MSS. of Sir George Hampson; Seaton's Forms of Decrees, 195. A sale under a bill for partition is unknown in England, and was permitted by statute in our state upon the report of commissioners of the situation of the premises, (1 R. L., 1813, 508, 510,) and they were authorized to execute conveyances. In the year 1818, in the case of Tabele v. Taylor, the inquiry whether the premises in question were incapable of a division without great prejudice to the owners was for the first time referred to a master, the court being satisfied that such preliminary inquiry might be conducted before him as well as by commissioners. This practice was afterwards frequently adopted in New-York. It was then also suggested whether the court could not employ a master to sell and convey. The opinion of counsel was, that it had no power to do so; that it could not by any possibility transfer the legal estate through a master. In the year 1826, a statute was passed, the same as that contained in the Revised Statutes, authorizing sales and conveyances by a master. The case of Mason v. Codwise arose in the year 1821. It was a creditor's bill against executors, who had a power of sale, and the personal estate was insufficient. On the 22d November, 1821, an order was made for the sale of the property, with the usual directions as to notice, &c., and the decrce proceeded: "And it is further ordered, that the said master, together with the said executors, execute deeds of conveyance to the several purchasers of the land so to be sold." The clause italicized was not in the order as drafted. I suggested the difficulty as to the master's power to convey, to the counsel and to Chancellor Kent. I well remember his quick manner of demanding, "Why! cannot I order my masters to execute any thing, and wont it be binding?" He became soon satisfied that he could not endue them with the power of giving a legal estate vested in others. specific estate or effects are demanded by the bill, by causing possession of the property so demanded to be delivered to the complainant.(1) I consider that this provision would not (in a creditor's bill for example) supersede a decree of sale, with a direction for all parties to join, which could be enforced when the absent defendant came within the jurisdiction. But the difficulty as to the legal estate still occurs. Ante, p. 95, and note. For the proceedings upon a sequestration, see Vol., I., 145. The writ in this case may be applied for at once, the fact of absence, &c., doing away of course the necessity of any process against the person. But there should be a motion or petition to the court, stating the fact of absence for the sequestration to issue. Under the statute respecting suits against heirs, devisees, &c. (2 R. S. 454,) every final decrce rendered in a suit by a creditor against an heir or devisee shall have preference as a lien on the real estate descended, to any judgment, or decree obtained against such heir personally, for any debt or demand in his own right.(2.) And a sale under an execution upon such decree will overreach all alienations of the estate made subsequent to the commencement of the suit.(3) In the case of Morris v. Mowatt, 2 Paige, 592, the chancellor thought it probable that in order to give the purchaser a legal title, sufficient to protect him in a court of law from a sale under a previous judgment against an heir, it might be necessary to issue an execution upon the decree, and have the property sold by the sheriff in the usual manner. Under the same statute, where the bill is against several heirs or devisees jointly, the amount of the recovery is to be apportioned among the several heirs, &c., as well as the costs, and only such proportion is to be recovered of each heir. The decree must express the amount thus apportioned, and the execution must conform to the decree.(4) If such a decree is rendered against infants, no execution shall be executed against them until the expiration of one year (1) 2 R. S., 187, § 130. (3) Ibid. § 49; 2 Paige, 592. VOL. II. (2) 2 R. S., 454, § 48. 13 |
