1811.

er endo

I am of opinion that the decree in this case ought to be OCTOBER, reversed, and the cause remanded to the Superior Court of Chancery for further proceedings, according to the

Mayo foregoing principles; but, a majority of the Court being Purcell. of a different opinion, the decree is affirmed.

Friday, April 3d, an argument took place, on a point propounded by the Court; whether the Chancellor haying omitted to direct, expressly, that a deed be made from Purcell to Mayo, this Court ought to reverse the decree; or to affirm it, and add the direction which the Chancellor should have given?

а

Wirt, for the appellant, contended that the decree ought
to be reversed. It does not provide for making a deed.
It directs the payment of a specific sum by Mayo, and
that he shall make a mortgage to Purcell; but it says
nothing about Purcell's making a deed to him, The
Court's opinion, " that the agreement ought to be specifi-
cally performed by both partics” cannot be considered
as directing a deed to Mayo; 1st, Because these words
are no part of the decree itself; they are only a recital
of the motive which led to the decree; not a direction of
what shall be done ; 2dly, Suppose these words a part
of the decree, they determine nothing: the suit calls for
a construction of the agreement : these words say, that
the

agreement shall be executed by both parties, without
deciding what the construction is. In the agreement
nothing is said about Purcell's making a title : that he
should make a title is a legal inference from the contract
of sale: the words in question leave this inference just
where the agreement left it. If Mayo had waited on
Purcell with a copy of this decree, and, relying on those
words, called on him for a title before he paid the money ;
might not Purcell well have answered, that the agree-
ment did not say that he should make a deed; and,
therefore, the Chancellor had not said so?

a

254

Supreme Court of Appeals.

v. Purcell,

OCTOBER, It is not by this general mode of expressing an opin1811.

ion, that the Court of equity makes a decree: it is by Mayo

directing what is to be done; it is the order given to the

parties under the opinion, which shows what they are to (u) Wyatt's do.(a) It may be said, that the direction that Mayo shall Prac. "Reg. make a mortgage of the land to Purcell, implies that

Purcell shall previously make a deed to Mayo: but
what sort of a decree is that in which the duties to be
performed on one side are expressed, and those on the
other side are left to implication? Such implication may
be denied. Its necessity does not appear : for Mayo may

:
make a mortgage, subjecting his equitable title, without
having any legal title himself. This would be incorrect
to be sure; but that is the very subject of complaint.
It is the province of a decree to leave nothing to dubious
implication; to put every thing out of dispute by the
clearness of its orders.

It may be objected, that this decree is interlocutory;
and although it omits to provide that a title shall be
made to Mayo, the chancellor may provide for it by his
final decree. But this is a final decree throughout, in
form and substance. Omitting the words that “the
plaintiff hath liberty to resort to the Court, as occasion
may require,” &c. it would be allowed on all hands to
be final. Nor do those words change its final character,
either as to Mayo or Purcell. Not as to Mayo ; because
they keep open the door expressly as to Purcell only.
Nor as to Purcell; for what are those words? They
mean one of two things : either, 1. That Purcell should
be at liberty to apply to the Court for process to force
Mayo to do what the decree commanded : that is, to
make the mortgage, or pay the money; (in which case
they mean nothing; because Purcell would have had
liberty to resort to the Court, for that purpose, without
those words; and, upon Mayo's complying with the de-
cree, it would certainly have been final,) or, 2. They
mean that he is to be at liberty to resort to the Court for
the accruing interest, toties quoties. Such decrees are

common on running contracts, where instalments are OCTOBER,

1811, yet to be due, and are always regarded as final. The cause is off the docket; both parties out of Court: it is Mayo never to be redocketed; but when the plaintiff comes Puroell. in, it is by a new bill.

But, if this decree is to be considered as interlocutory because there are instalments of interest yet to come, for which the plaintiff has leave to apply ; every decree for the future instalments will be equally interlocutory, until the whole shall be paid ; because the same leave will be reserved in every decree ; so that the decree for making the title need not come until after the twenty years ; after the payment of four or five thousand pounds of interest! Both in practice and principle, it is a final decree..

а

Hay, for the appellee. I admit, that where a decreo
is for the payment of purchase money, it ought to direct
a title to be made; and that here it has not been express-
ly directed in terms; but it is implied'y. The decree
says, that the contract ought to be specifically executed on
both sides. So, in the contract itself, there is no express
stipulation that a title shall be made : yet this was un-
derstood to be implied, of course.

No particular form of words is necessary in a decree.
The Chancellor's opinion, being expressed, is equivalent
to an order. The Clerk, therefore, under this decree,
would not issue an execution against Mayo until Purcell
had complied with the agreement on his part, by tender-
ing a deed.
But suppose it not a fair inference from the decree

a
that a deed is to be made ; yet this Court, approving the
decree as far as it goes, may add the direction which the
Court below ought to have added. According to a fair
exposition of the 19th section of the Act of Assembly
concerning the Court of Appeals, (a) which says, that (9) Revised

Code, 1st vol. such decree or judgment may be given, “if it be not affirmed or reversed in the whole, as the Court whose error is sought to be corrected, ought to have given,"?

P. 65.

1811.

V. Purcell.

der v. Mor

also Heffner Purcell.

256

Supreme Court of Appeals.
October, there can be no question but this may be done. And

it has been the practice, in affirming a decree, to make Mayo

any necessary addition.(a) Indeed, the Court has even

gone further, and added a restrictive explanation to the (a) Alexan- judgment of a Court of law.(6) ris, 3 Call, 105. Argen

Wickham, in reply. Is this decree legal, or not? I bright v. Campbell, s have a right to say, on behalf of Mayo, that he appealed, H. & M. 199. (6) Preston because it directed him to pay the money absolutely, v. Harvey, 2 H. & M. 68.* when it should have been conditionally; that is, with a

• Note. See proviso, that a title should be previously made him by V. Miller, 2

In Pollard v. Rogers, decided June 11th,
Munf. 43.

1791, the very point now in question was decided : and
in Grantland v. Wight, 2 Munf. 179. a similar decision

2
took place; the Court determined the claim of Grantland
to be one of the most unfounded that ever was'; yet, for
the oversight of the Chancellor, in omitting to direct a
title to be made, the decree was reversed.

The expression of an opinion by the Chancellor, that
the agreement ought to be specifically executed on both
sides, contains an implication that Purcell had executed
it on his side, and that Mayo ought to execute it on his
side; not that Purcell ought now to make a deed. If it
was to be understood as an opinion that Purcell ought to
do it; nevertheless, it was not directed to be done. The
clerk of the Court of Chancery was bound to issue the
execution. Mayo could not get the error rectified with-
out appealing to this Court, or by a bill of review.

a

Curia advisari vult.

Thursday, November 19th, 1812, the following opinion of the Court was delivered by Judge ROANE.

The decree of the Court of Chancery being, inter alia, that the agreement should be specifically performed by both the parties, and that the appellant should execute a mortgage on the lands in the proceedings mentioned ; which presupposes that a title should first be made to

1811.

him, therefor, by the appellee ; this Court (thus under. OCTOBER,
standing that decree,) is of opinion, that the same iś cor-
rect upon the merits ; and the same is consequently af- Thatcher and
armed.

Taylor and
Cochrane,
trustees, &c.
of Miller.

Thatcher and Herndon against Taylor and Thursday,

Cochrane, trustees, &c. of Miller.

,

1812.

ter

AN action of debt on a bond was brought by William 1. In debt on

a bond, if the Taylor and Thomas Cochrane, trustees and executors of defendant, af

craving Thomas Miller, deceased, against Elisha Thatcher, God.

oyer, plead love Heiskell, and William Herndon, in the County Court payment, "

and it appear, of Spottsylvania. The declaration was in the usual from the con

dition of the form, demanding a debt of 2,000 dollars, and saying no- hond, that onthing about a condition to the bond.

The defendants the debt had

ly a part of

become due praying oyer, the writ and bond were spread on the re

at the time of cord. The writ bore date the 1st of April, 1806, and institution of

the suit ; the was returned executed. The bond was dated November plea extends

to that part 7th, 1803, in the penal sum of 2,000 dollars, conditioned only, and not to be discharged by the payment of the legal interest on might become

due thereaf3,660 dollars, annually, during the life of John Miller, brother of the said Thomas Miller; (the first payment to

2. A judgbe made the first day of September, 1804, and, then, ment

bond, for payevery first day of September thereafter;) also, by the ment of .

debt by inpayment of 1,830 dollars, in one year after the death of stalments

,

, the said John Miller, and the further sum of 1,830 dol- « for the celst

in the declalars, in one year thereafter. The defendants then pleaded“ payment," and in No- tioned, to be

discharged by vember, 1806, a verdict was found for “ the debt in the the sum due

at the time of declaration mentioned, to be discharged by the payment institution of

the suit; re

serving liber. ty to the plaintiff to resort to a scire facias to recover such other damages as might there after arise under the condition of the bond,',*

ter.

iedot

on

ration

men.