#### BAKER *v.*LEHMAN, ET AL.

Appeal — final sentence or decree — mortgage—sale when oné instalment is due — serre ‘facias law cumulative.

That is a final sentence or decree which settles the merits or principles of the cause, and if passed without appealing will conclude the parties.

An appeal in chancery is allowed from any final sentence or decree — sentence is inappropriate • to chancery proceedings, as used it means *order.*

A decree for the sale oí mortgaged premises and to foreclose the equity, is final, and may be appealed from, although the case is continued for report of the sale.

A decree for a sale of mortgaged premises will be decreed for non-compliance with the covenants. If the money is to he paid in instalments, and the contract to be void if the money is paid accordingly, the omission to pay either instalment forfeits the condition and a sale will be decreed, without waiting for the other instalments to fall due.

The act allowing mortgagees to proceed by scire facias was cumulative, and never suspended the jurisdiction of chancery in such cases.

In Chancery. Bill for the sale of mortgaged premises, to make the mortgage money, and a foreclosure. The mortgager, a junior mortgagee and judgment creditors of the mortgager are made defendants. The cause came on to hearing in the Common Pleas upon the answer of the mortgager. As to the other defendants, the bill was taken as confessed. The Court ascertained the amountdue the complainant on the mortgage, and decreed the payment of the money, that a master sell the premises, and for the coming in *523<oF the report, the cause was continued. From this decree the defendants appealed to this court.

*N. Wright,*for the complainant,

now moved, to quash the appeal because the decree was only *interlocutory,*not *final.*He cited 12 *John. R.*508, 534; 17 *John. R.*559/ 3 *Crunch. R.*179.

*Fox*and *Hammond*contended,

that no decree for sale or foreclosure could be made, until the last instalment is due. They cited *Pow. on M.*170, 932, 998,1016, *n. p.;*13 Fes.202; 5 *Bro. Pari. Ca.*
      *524548; 18 *John R.*10, 113, 132; 2 *Cain. C. E.69; Bac. Ab. Tender F.*

*523Wright J.

The statute (29 O. *L.*90) allows appeals from ‘any final *sentence*or *decree*made in *any cause*in Chancery.’ This language would hardly have been employed unless the general assembly contemplated an *appeal*from something other than the *last*or *concluding*order or decree in the cause. If we suppose the word *sentence,*which more appropriately belongs to an admiralty or a criminal court than to chancery, was inadvertently used instead of the usual term order, which is used in chancery proceedings, and give to it the same signification we should give to the term order, and we do not know what other meaning to give it, there will be little difficulty in construing the statute. That is, *a final decree*which determines the *merits*or *principles*of the cause. The Supreme Court of the United States in 3 *Granch*179, determined that a decree for a sale under a mortgage, was *such*a *final decree*as might be *appealed*from. The act of congress allows appeals only from ‘a *final judgment*or decree.’ We hold a *decree*or *order final,*and within the legislative provision allowing an' appeal, which is conclusive as to the subject, or object of it — which determines the rights of the parties as to that matter. Such we understood to have been the uniform construction of this court. . The deeree before us is *filial*as to the complainant’s right to charge the mortgaged premises with his debt, and to foreclose the mortgager and other parties of all their equities in favor of the purchaser. After the sale, if one take place, nothing more is requisite, than for the chancellor to examine the proceedings of the master, confirm them, if found regular, and order- the proper application of the proceeds. An appeal after the sale, would leave the decree determining the *right to sell,*the main matter in controversy, in full operation, untouched: (1 *O.*i2. 271; 3 O. ¿2. 448.)

The motion to quash is overruled.

The ease afterwards came to hearing on'the pleadings and argument. The execution of the mortgage to secure a sum of money in instalments was admitted, and it was also admitted, that all the instalments secured by the mortgage were not yet due.

*524
      *N. Wright,*contra.

Lane, J.

The right of the complainant to a decree, must depend upon the assent of the parties, the condition of the mortgage, upon which the conveyance was to become absolute, and its construction. The condition here is, that if the mortgager shall pay said money according to the stipulations of the contract, the deed shall be void. It is conceded, he has failed to pay, yet he contends the court shall declare the contract inoperative, until he has failed in further compliance, and construe his contract to be, to make the deed void, if he pay at any time, instead of construing it accoi’ding to its plain terms, to make it void, if he comply with the' condition stipulated. It is the contract made that we are to enforce; we are not to make a *new*one for the parties. By paying what is now due, the proceeding may be stayed, otherwise the right to sell remains. The proceedings in New York under the statute of that state, shed no light upon our path. Nor does the repealed statute of Ohio, which allowed a *sci. fa.*after all the money fell due; that statute gave to the mortgagee a cumulative remedy on a mortgage. It never took away the right to proceed in equity. Sale ordered, and cause continued for report.