#### *Harvey and Wife v. Branson.

February, 1829.

(Absent Caberu and Coabter,* J.)

Chancery Practice — Decrees—When Final † — Case at Bar. — A decree in chancery, disposing- of the whole subí ect, deciding all questions in controversy, ascertaining the rights of all parties, and awarding the costs, though it appoint a commissioner to sell part of the subject, and account for and pay the proceeds to the parties, with liberty to them to apply to the court to add other or substitute new commissioners, or for a partition of the subject directed to be sold, in kind, is a final decree.

Levi Branson filed his bill against Harvey and wife and Peck, setting forth that his grand-father, Benjamin Borden the elder, by his will in 1742, among other things, directed that all his lands on the waters of James river should be sold, excepting 5000 acres of land, all good, which he gave to five of his daughters, Abigail Worthington, Rebecca Branson, Deborah Borden, Lydia Borden, and Elizabeth Borden, that is, 1000 acres of good land a-piece to every one of the said five daughters above mentioned, to them and their heirs and assigns forever: that his widow and eldest son and heir Benjamin Borden, the younger, were executors of this will: that the 1000 acres were never allotted to Rebecca Branson: that she was dead, and the plaintiff was her heir at law: that Benjamin Borden, the younger, as executor and heir, took possession of all the lands of his father: that he died leaving a daughter Martha, his heir, with whom the defendant Harvey intermarried: that all the lands unsold have passed into their hands: and, after some f-arther details, the bill prayed a decree against Harvey and wife and Peck (who was stated to have some of the lands in possession) for the 1000 acres of land. The answer of the defendants, acknowledged most of the facts in the bill, but stated, that Rebecca Branson and her husband, in 1745, conveyed the land by deed to Benjamin Borden, the younger, with general warranty; and, though it should appear that the right of Rebecca was not divested by that conveyance, jret *the defendants had a right to resort to the warranty of the plaintiff’s father, which descended upon him &c.

Soon after answering this bill, Harvey and wife filed a cross-bill against Branson, stating his claim for the 1000 acres, and the deed of his father and mother; that it was made for a valuable consideration, but the privy examination of the wife was not taken: charging, that Branson was bound by the warranty and covenants of his father, and that he has received or claims considerable estate from him, which they seek to have decreed them, if the plaintiff should recover the land: especially, a claim made by Branson for his father’s portion of a part of the estate of Benjamin Borden the elder, which that testator directed should be sold, and divided among his children. This bill was answered.

On a hearing of the original and cross-suits, in December 1813, the chancellor decided, that Branson was entitled to the 1000 acres of land devised to his mother: that the warranty in his father’s deed did not bind him, because no assets had descended to him: that this case, however, was not ready for a final decree, because it appeared, that the particular land claimed in the bill had been already appropriated in satisfaction of the claim of another daughter: And it being suggested to the court, that there were other persons possessed of land subject to the claim, leave was given to amend the bill, and make them parties. And, with respect to the cross-bill, the chancellor said, that though the warranty of his father did not bind Branson, yet that the covenants in the deed would bind the personal estate of the father, to answer any damages sustained by the breach of them: that Branson denied that he had received any personal assets from his father, and there was no evidence to prove that he had: that he was seeking, however, in another suit depending in this court (Borden’s representatives v. Bowyer & al.) to recover a sum of money-on account of the devise in the will of Benjamin Borden the elder, of certain lands to be sold, and the monies arising therefrom to be divided between his daugkter Rebecca Branson and others: *that the court held Mrs. Branson’s share of this last mentioned subject, a chattel interest, to which her husband and his personal representatives were entitled: and that the court would, therefore, provide, that whatever of that legacy the personal representatives of Branson, the father, would have been entitled to receive, should be held liable to the indemnification of Harvey.

*46Under the leave given, Branson amended his bill, and made several new defendants, in whose possession, it was stated, there were lands subject to his claim. These de- • fendants answered, and much evidence was taken.

The two causes were again heard, together with the case of Borden’s representatives v. Bowyer, in July 1818; when the chancellor made an interlocutory decree, touching all the three causes, wherein he declared, that the great difficulty of selecting, at this day, lands to answer the devise of Benjamin Borden the elder, of 1000 acres of land to each of his daughters, and the injury which would result from it to persons, who, or those under whom they claimed, had been long in possession, rendered it proper, that the claim of Mrs. Branson’s heir (the only claim not yet satisfied) should be ascertained in money, and paid out of the shares of Robert Harvey and John Bowyer, of the monies received, or to be received, for the proceeds of the lands directed by a former decree of the court to be sold; and, if that should prove insufficient, then out of their own estates, in proportion to the amounts which they or their ancestors had received for lands (of B. B. the elder) sold by them. He further decided, that the claims of all the testator B. B’s. daughters, for shares of the proceeds of the lands devised to be sold, had been extinguished, except that of Mrs. Branson; and that the claims of two of his sons Joseph and John Borden, as well as that of Mrs. Branson, remained yet unextinguished. And he appointed commissioners to ascertain the compensation to which the heir of Mrs. Branson was entitled for the '1000 acres of land, specifically devised to her, but never assigned to her, with directions to ^report &c. And other directions were given, and reports ordered, in relation to the case of Borden v. Bowyer, not material to be particularly stated here.

It appeared, that the former decree, directing lands to be sold, referred to in the above mentioned decree of July 1818, was an interlocutory decree made in the case of Borden v. Bowyer; that the lands thereby decreed to be sold, were such of the lands devised by the will of Benjamin Borden the elder, to be sold, and the proceeds divided among all his children, as then remained unsold; that sales had been made; and that the proceeds thereof were then at the disposal of the court, or in a train of collection by Samuel Clarke, the commissioner who made them: so that the subject, which w'as afterwards to be disposed of, appertained to the case of Borden v. Bow-yer.

The commissioners appointed to ascertain the compensation due to Mrs. Branson’s heir, for the tract of 1000 acres devised to her, reported it to be 20,000 dollars; and to this report there was no exception.

The other reports, relating to the case of Borden v. Bowyer, required by the decree of July 1818, were also returned; and exceptions thereto were filed by the parties.

And, in August 1820, the three causes, Branson v. Harvey and wife and others, Harvey and wife v. Branson, and Borden’s representatives &c. v. Bowyer &c. were heard together; when the following decree was pronounced as to them all:

“These causes came on, together, this 5th day of August 1820, to be finally heard, on the decrees herein before rendered, and on the report of the commissioners and the exceptions thereto, and were argued by counsel: Whereupon the court doth overrule all the exceptions, taken by Bowyer and Harvey and wife, to the report of commissioner Samuel Clarke made in the case of Borden’s representatives against Bowyer et al. and doth also overrule the third exception taken to said report by the plaintiff’s counsel; but doth sustain the first exception of the plaintiffs, so far as to require *that the ¿£48. 8. 8. therein mentioned, with the interest allowed thereon, should be debited to the defendant Bowyer; and doth sustain the plaintiff’s second exception, requiring that - the value of the 260 acres of land therein mentioned, should be brought into the account, at the price of *£176.*according to the estimate of the commissioners in 1804, on which sum of ,£176. interest should be calculated at the rate of six per centum per annum from the 1st November 1804 to the 1st November 1818, and the amount added to the purchase money received by Hawkins and wife, with which the defendants Harvey and wife are chargeable. The report aforesaid, when reformed on these principles, will shew the following results: that the whole fund, proceeding from the sale of lands distributable under the will of Benjamin Borden the elder, calculated up to 1st November 1818, is 75,524 dollars 73 cents; of which the plaintiffs, the representatives of Joseph Borden, are entitled to one ninth, equal to 8,391 dollars 63 cents, and the defendant John Borden to one other ninth; and of which the defendants Harvey and wife are entitled to three ninths, and a moiety of the ninth which would have belonged to the representatives of Branson, equal to 29,370 dollars 72 cents, and the defendant Bowyer to the like amount; that, deducting from the sum aforesaid, to which the said Harvey and wife were entitled, the amount which has been received by them and the said Hawkins and wife, to wit, 8,140 dollars 80 cents, stated on the 23d page of the commissioner’s report, and 996 dollars on account of the aforesaid 260 acres of land, equal in the whole to 9,136 dollars 83 cents, there would remain due to the said Harvey and wife, of the fund aforesaid, a balance of 20,233 dollars 92 cents; and that deducting from the said Bowyer’s portion of the fund aforesaid, what has been received thereof by his testator, that is to say, 17,759 dollars 57 cents, stated on the said 23d page of the commissioner’s report, a,nd 352 dollars, the principal and interest of the aforesaid ^£48. 8. 8. equal in the whole to 18,111 dollars 94 cents, there would remain due of the fund aforesaid, to said Bowyer 11,258 ^dollars 78 cents. The said report, thus reformed, the court approves and confirms. The court, having heretofore decided, in the case of Branson v. Harvey and others, that the plaintiff must be compensated for the 1000 acres of land to which he was *47entitled, by the value thereof in money, to be paid out of that portion of the fund aforesaid to which the defendants Harvey and wife and Bowyer were entitled, and commissioners appointed for that purpose having ascertained and reported to this court, in the year 1818, that the value of said land was 20,000 dollars, which report is approved and confirmed, there must be now' appropriated to the said Branson, out of the balances above stated to be due to the said Harvey and wife and Bowyer, the said sum of 20,000 dollars; which being deducted in moieties, from the said balances, will leave due to the said Harvey and wife the sum of 10,233 dollars 92 cents, and to the said Bowyer the sum of 1,258 dollars 78 cents. (The several results herein stated will appear more distinctly by reference to a statement made and signed by the plaintiff’s counsel, marked A. B. filed among the papers, and approved by the court.) The court doth, therefore, adjudge, order and decree, that commissioner Samuel Clarke, to whom hath been entrusted the management of the fund aforesaid, under the direction of the court, do proceed, without delay, to collect the same with such additions as shall have been made thereto since the 1st November 1818, as the respective sums loaned out, or payable for the original purchase money, shall fall due, after retaining his commissions thereon, and paying therefrom the costs yet unpaid which have been expended, as well by the plaintiffs and the defendants Harvey and wife and Bowyer, in the original suit of Borden v. Bowyer, as by the plaintiffs and defendants in the original and cross-suits of Branson v. Harvey and wife, and Harvey and wife v. Branson and others: that he do pay unto the plaintiffs the representatives of Joseph Borden deceased, their agent or attorney, the aforesaid sum of 8,391 dollars 63 cents, with six per centum per annum interest thereon from the 1st November :t'1818 till paid : that he pay unto the defendant John Borden, his agent or attorney, a like sum with like interest: that he pay unto the representatives of Rebecca Branson deceased, their agent or attorney, the sum of 20,000 dollars, with like interest from the same period till paid: that he pay unto the aforesaid Robert Harvey and wife, the aforesaid sum of 10,233 dollars 92 cents, with like interest from the same period till paid: and that he do pay unto the aforesaid John Bowyer, the said sum of 1,258 dollars 78 cents, with like interest from the same period till paid. If the fund aforesaid should be inadequate to the payment of the said several sums, then the sums decreed to the said Joseph Borden’s representatives, John Borden, Harvey and wife and John Bowyer are to abate in the following manner; one-ninth of the deficiency is to be deducted from each of the sums decreed to said Joseph Borden’s representatives and said John Borden, and the residue of the deficiency is tc be deducted in equal moieties from the sums decreed to said Harvey and wife and Bowyer. If the said fund should be more than adequate to pay the said several sums, then the surplus shall be paid as followeth, one-ninth to said Joseph Borden’s representatives, one-ninth to John Borden, and the residue in equal moieties to said Harvey and wife and Bow-yer. It is further adjudged, ordered and decreed, that the agency of said Samuel Clarke in the sale of lands yet remaining unsold, continue as heretofore, and that he proceed to make sales thereof, in such manner as he may judge most conducive to the interest of the parties; and after retaining his commission, and the proper costs and charges of the sales, that he distribute the proceeds thereof, in the same manner as the surplus of the fund aforesaid is directed by this decree to be distributed. Leave is, however, reserved to the parties aforesaid, at any time whatever, to apply to this court, to supersede the appointment of said Clarke as commissioner to make sales as aforesaid, or to appoint any commissioner or commissioners to act with or to succeed him, or to have the said unsold lands divided amongst the parties aforesaid *in the foregoing proportions. If it should so turn out that one-ninth part of the unsold lands aforesaid, should be more than sufficient to remunerate the said Harvey and wife and Bowyer, for the balance of the 20,000 dollars with interest decreed to the representatives of Branson, after deducting therefrom the said Bran-son’s one-ninth of the fund aforesaid which has been assigned by this decree to the said Harvey and wife and Bowyer, then the surplus of the said one-ninth of the unsold lands shall go and be paid to the said representatives of Branson. It is further adjudged, ordered and decreed, that the bill of the plaintiffs be dismissed (but without cost) as to the defendants W’hose lands were surveyed and laid off, on the supposition that they were subject to the devise of a thousand acres in the will of Benjamin Borden the elder.”

In April 1824, Harvey and wife presented a petition to the chancellor praying an appeal from the above decree of December 1820, as to the two suits between them and Branson, which he denied; and, in July 1824, they presented a petition for an appeal to a judge of this court, by whom it was allowed. And the cause being now called for hearing,

Johnson, for the appellee,

moved to dismiss the appeal, as having been improvidently allowed.

Whether it was so or no, depended on the character of the decree: if the decree was interlocutory, the cause was pending in the court of chancery when the appeal was allowed, and then the appeal might be allowed ; if the decree was final, the appeal from it was barred by the statute, 1 Rev. Code, ch. 66, $ 53, whereby the right to the appeal is limited to three years from the date of the decree.

He maintained, that the decree was final; final as to all the causes; final, at least, as to the two causes between Branson and Harvey, as to which only the appeal from the decree had been taken.

*If the decree were interlocutory as to Borden v. Bowyer, it was not therefore the less final as to Branson and Harvey. It disposed of every point and subject in controversy between them; it determined the suits pending between them; it was *48final then as to them, even if the suit of Borden v. Bowyer were still left pending as to the parties thereto. Royall v. Johnson, 1 Rand. 421.

But the decree was final, as to the case of Borden v. Bowyer too. The chancellor certainly intended it should be so; for the decree expressly stated, that the causes came on to be finally heard. In the decree of July 1818, it was determined, that all the claims to the subject to be disposed of in Borden v. Bowyer, were extinguished, except the claims of the parties remaining in the court, in the three causes, when they were heard in December 1820. The claims of these parties, claims to the subject collected and at the disposal of the court in Borden v. Bowyer, alone remained to be adjusted. The decree of December 1820 decided every question in dispute; ascertained the rights of all the parties, in all the causes, to the whole subject in controversy ; awarded the costs; and in short, left nothing to be done by the court, but to carry the decree into execution. The reservations made in the decree, had respect only to the future execution of it: liberty was not resgrved to any party, ever after-wards, to contest the rights declared by it, but only to resort to the chancellor, for his aid in carrying it iqto effect, for the benefit of ail parties. Reservations of this kind do not make a decree interlocutory. Sheppard v. Starke, 3 Munf. '29. If such reservations made a decree interlocutory, no decree could be final. Ror, in case of final, as well as interlocutory decrees, the parties have always a right to the aid of the court (whether liberty to apply for it be reserved or not) to execute the decrees they have obtained: indeed, they must resort to the court for the purpose, if the decree be not voluntarily and regularly fulfilled in all its provisions.

*Stanard, for the appellants,

contended, that the decree was interlocutory. He said, every decree which leaves any thing to be done in the cause, by the court, was interlocutory, as between the parties remaining in court, though it might be final, as to the other parties then or previously dismissed from the cause. Fairfax v. Muse, 2 Hen. & Munf. 557-8, n. 2; Allen v. Belches, Id. 595; Aldridge v. Giles, 3 Hen. & Munf. 136; Templeman v. Steptoe, 1 Munf. 339; Goodwin v. Miller, 2 Munf. 42; Mackey v. Bell, Id. 523; Chapman v. Armistead, 4 Munf. 382, 398; Alexander v. Coleman, 6 Munf. 328. In Mackey v. Bell, the rights of the parties were completely adjusted, and the costs were awarded; yet this court held the decree interlocutory, because commissioners, were appointed to carry the decree into effect: here, not only was a commissioner appointed to carry the decree into effect, but provisions were made for adding other or substituting .new commissioners, or for dispensing with the sales, and making partition of the lands, by subsequent orders in the causes. The stating in the preamble of the decree, that the causes came on to be finally heard, could not determine the character of the decree: it could only shew, at the most, that the chancellor intended to make, or supposed he was making a final decree: but such a design (if it could fairly be inferred) could not make the decree final, if it was in truth interlocutory. The decree, which this court held to be interlocutory in Chapman v. Armistead, was manifestly intended to be a final one, by the court that pronounced it. The decree in question here, was a single decree in the three cases of Branson v. Harvey, Harvey v. Branson, and Borden v. Bowyer; in the scheme of the decree, the first two-cases were indissolubly blended with the last; indeed, the whole of the subject, disposed of by the decree as between Branson and Harvey, grew out of, had been collected in, and appertained to, the case of Borden v. Bowyer: if, then, the decree was interlocutory as to Borden and Bowyer, it was so as to Branson and Harvey. Now, he said, the decree, as to Borden v.

*'Bowyer, was clearly interlocutory part of the lands remained to be sold by the commissioner; he was ordered to-sell them; and those sales were of course to be reported to the court, and might be confirmed or set aside: accounts of subsequent collections of the proceeds of former as well as of subsequent sales, were to be rendered, were liable to exception, and were subject to the examination of the. court. Otherwise, the chancellor’s decree, in effect, constituted his commissioner a vice-chancellor. And, in those subsequent proceedings, all the parties in all the causes were interested, Branson as well as the others: for, by those proceedings, it was to be ascertained, whether the ninth part of the proceeds of the lands yet to be sold, will be more than sufficient to remunerate Harvey and Bowyer, for the balance of the 20,000-dollars and interest decreed to Branson, after deducting his ninth part of the fund in hand assigned by the decree to Harvey and Bowyer; in which case, the decree-provided, that the surplus of the ninth, part of the proceeds of the unsold lands shall be paid to Branson. The rights of the-parties were not completely adjusted. The reservations contained in the decree, were therefore proper; and they were such as-were proper only in an interlocutory decree, being reservations intended to be made effectual by subsequent orders or decrees in the same causes. If the decree were final, those reservations could only lay the-foundation of new suits.

*

 Coabter, J., did not .sit, because he had been formerly counsel in the canse.

†

Decrees — When Final.— On this question, the principal case is cited in *foot-note*to Vanmeter v. Vanmeters. 3 Gratt. 148; *foot-note*to Fleming v. Bolling. 8 Gratt. 292: *foot-note*to Rogers v. Strother, 27 Gratt. 417; Thorntons v. Fitzhugh, 4 Leigh 213, 218, 219. 220; Tennent v. Pattons, 6 Leigh 208; Cocke v. Gilpin, 1 Rob. 36, 43, 40, 52 (see *note)*; Ambrouse v. Keller, 22 Gratt. 774; Smith v. Blackwell, 31 Gratt. 300: Ryan v. McLeod. 32 Gratt. 376 (see *note);*Rawlings v. Rawlings, 75 Va. 83, 87; Wayland y. Crank, 79 Va. 605; Parker v. Logan, 82 Va. 379, 4 S. E. Rep. 615; Roanoke Nat. Bk. v. Farmers’ Nat. Bank, 84 Va. 610, 5 S. E. Rep. 682 ; Barker v. Jenkins, 84 Va. 899, 6 S. E. Rep. 459; Jameson v. Jameson, 86 Va. 51, 9 S. E. Rep. 180; Serles v. Cromer, 88 Va. 428, 13 S. E. Rep. 859: Sexton v. Patterson, 1 Va. Dec. 554: Manion v. Fahy, 11 W. Va. 493; Ruhl v. Ruhl, 24 W. Va. 283; Core v. Strickler, 24 W. Va. 698, 695; State v. Hays, 30 W. Va. 120, 3 S. E. Rep. 185; Williamson v. Jones, 39 W. Va. 262, 19 S. E. Rep. 444. See monographic *note*on “Decrees” appended to Evans v. Spurgin, 11 Gratt. 615.

CARR, J.

All decrees are either interlocutory or final: there is no middle class. In the progress of a cause, it often becomes necessary to make orders of different kinds,, in order to enable the court to come at the whole case, or to settle the details, after the principles of the cause are decided r all these are interlocutory orders or decrees. But when a decree makes an end of a case, and decides the whole matter in contest, costs and all, leaving nothing further for the court to do, it is certainly a final decree. Get us try the case before us by this test.

*Branson filed his bill to recover 100 acres of land: this was the sole object of it. The defendants Harvey and wife filed their cross-bill, claiming that if Branson should recover the land, they might be indemnified out of the assets of *49his father descended to him. To Branson the chancellor said, he could not give him land, but he would give him the value o£ it in money ; and he decreed his receiver to pay him 20,000 dollars. To Harvey and wife he said, that no lands had descended to Branson from his father, in respect of which he was liable on his father’s warranty ; but that there was a fund in the power of the court, which he was seeking, and which the court held liable to their indemnity ; and that fund they should have, so far as it would go: accordingly he directed his receiver to pay this fund, so far as it was in hand, and to continue to apply it in the same way, as it shall accrue. The costs are given in both cases; and the bill dismissed as to some of the defendants, against whom no decree could be made. Now, did not this make an end of the business? What remained to be acted upon? What more did the -court mean to do, or could it do? I cannot conceive. It is said, that the land was not all sold, from which the fund was to arise: btit that, in my judgment, has no effect on the character of the decree. The court had done all it meant to do, or could do; and, in the suit of Borden v. Bowyer, the rights and interests in this land, and in the proceeds of it, had been settled, and also the mode of sale and distribution. Branson’s share both of the money raised and of the land to be sold, was settled at a ninth: all his share of the money in hand, the court had decreed to Harvey and Bowyer, and all the proceeds of future sales, till they should be paid. To say that this was not a final decree, would be saying that no final decree could be made in such a case. How many decrees do we see, directing money to be paid at stated times, thereafter; decreeing an annuity for instance: but it never was doubted, that such decrees were final, if intended to be so.

”But it is said, that this case is so blended with that of Borden v. Bowyer, as to have become a part of the same cause, and that the decree being, as to Borden v. Bowyer, clearly interlocutory, this must be so as to Branson v. Harvey too. But how are these blended? there has been no order of consolidation, and I do not understand how without that, two distinct causes can become one. A consolidation of them, would seem to me very improper; their objects are different, and so are the parties in interest. The suit of Borden v. Bowyer is not before us; we have no copy of the record; I can speak of it, therefore, only from extracts from it, introduced into this case. Its general object seems to have been, a call upon the representatives of Benjamin Borden the younger, to account for and distribute the proceeds of all the lands, which Benjamin Borden the elder directed should be sold, and the proceeds divided among his children. To this suit all the children or their representatives must have been parties., But the bill of Branson, was for a specific devise of 1000 acres of land to his mother; and no child was made a party to this; nobody but Harvey and wife. Plow then could the suits have been consolidated? Would it have been right to have clogged Branson, who had a specific object in view, by forcing him into the general contest, and affecting him by all the costs and all the delays, arising from such a number of parties, and such numerous subjects and points of litigation? The causes were connected in this way only: the chancellor' declining to give Branson land, threw him upon Harvey and Bowyer’s portion of the general fund, collected in Borden v. Bowyer; and also gave Harvey and Bow-yer indemnity out of Branson’s share of that same fund: but this could not make the two suits one.

It is said the chancellor heard them together, and pronounced one decree in them all. It is true the chancellor found it more convenient to have one hearing, and to pronounce one decree, than two; but it was never in his *'lhought, that by this proceeding he was consolidating them: for throughout both his decrees, he treats them as distinct and separate suits; and it may be seen at a glance, what part of the decree is referrable to the one, and what to the pther.

I cannot think then, that this case is, in any respect, made a part of Borden v. Bowyer. But if it were, and if the decree in Borden v. Bowyer, was clearly interlocutor, it would not follow, that the decree here must of necessity be so too. The claim of Branson was certainly a distinct one: none of the parties to the other suit, none of the heirs of Borden, participated in that claim: he claimed for himself alone, the share of his mother;' her 1000 acres. Even, then, if he had carried this separate claim into the general suit, there might have been a final decree as to him, without any decree on the other parts of the cause. For, I think, this court clearly right in Royal’s adm’r. v. Johnson, where it decided that where a decree is made as to one of several defendants, the interests of that one being wholly unconnected with the others, and he being directed to receive or pay costs, such decree is final as to him, though the cause may be still pending in court as to the rest. Now, I have shewn, that the decree makes a complete disposition of the subjects of the bill and cross-bill of Branson v. Harvey, with the costs; and these subjects are so entirely unconnected with the objects of Borden v. Bowyer, that it would be difficult to imagine, how any thing subsequently done in this last, could affect the right or interest of Branson.

But I am strongly inclined to think this decree is final as to Borden v. Bowyer itself. I can only judge from the extracts from the record of that case, before mentioned, and the decree itself. The objection taken at the bar, I understood to be, not that the court had left any part of the case undecided, but that the decision was not final, because the commissioner of the court was still to go on and sell the lands, and because liberty was reserved to the parties to apply to the court to supersede him, or to appoint one or '*more commissioners to act with him, or to succeed him, or to have the unsold lands divided among the parties in the proportions settled by the decree. But this does not seem to me, to make the decree interlocutory. The *50commissioner was not to report his proceedings: the court did not mean to pass upon them, in order to their validity. The power to sell, included the power to convey: and he was to distribute the money in settled proportions, as it came to hand. The liberty reserved to the parties to apply to the court, was merely to enable it to stop the commissioner, if he should be found abusing his trust; or to stop him, if all the parties should agree to divide the unsold lands, in the proportions settled by the decree. No leave was given to apply to the court to change any part of the decree in principle. We know, that in all cases where lands are to be sold, and the money applied to the use of particular persons, if all interested be sui juris and agree upon it, they may apply to equity, and elect to have the land. The leave given here, was nothing more: they could have done it of themselves in pais. But does not the very circumstance of leave being given to the parties, shew that the decree is final, and they out of court? If the case was still pending, and the parties in court, what need could there be of leave to apply to the court? In England, I find it every day’s practice to appeal from decrees, where lea ce is granted to apply to the court for its assistance. It seems never to have been thought of there, that such leave makes the decree interlocutory.

It seems to me, that such a doctrine in this case, would be calculated to do much mischief. . How long will you keep the decree open? The parties may apply or not: it is perfectly optional with them. The decree may be foi°years in a course of execution. There seem to be various scraps and slipes of land, the remnants of a large body, scattered here and there, through two or three counties. The commissioner is not to sell at once, or at auction: this would involve a sacrifice, which the parties did not wish. Years may *pass away, before he closes the agency. And would it not be productive of fearful mischief, to decide, that during all that time, there shall be a lis pendens? that every thing done in the cause, may be undone? that all the titles, (perhaps, two or three hundred) suppose to have been settled by the decree, are still liable to be disturbed? and that every one who has purchased since the decree, resting (as he thought) on the firm foundation of a final decree not appealed from, is to be taken as a lite pendente purchaser? Such a doctrine promulgated, would shake many titles to their foundation.

I have met with but one case in our reports, which may seem to apply to this point; the case of Sheppard v. Starke. That was a bill brought against an executor by a distributee, for an account, and division of the residuum: a certain sum was decreed against the executor, to be paid to the children on their executing bonds &c.: “and liberty was reserved to the parties, or either of them, to resort to the court for its further interposition, if - it should be found necessary.” To this decree, the executor filed a bill of review, upon which proceedings and a decree were had; and the cause came up by appeal. On the argument here, not a word was said about the character of the decree, or the regularity of the bill of review. This court prefaced its opinion on the merits, by saying, “the court is of opinion, that though either of the parties to the original decree pronounced in this cause, might, in a summary way, have resorted to the court of chancery, for its further interposition, if deemed necessary, (under the special reservation in the decree contained,) they might also proceed by bill, as was done in the' present instance; that mode being equally justified by the reservation aforesaid, and beneficial to the parties.” It is clear to me, that the court had no intention, there, of expressing an opinion, that the decree was interlocutory : if so, it could not have sustained the bill of review, which, we know, can only be filed after a final decree; for not even the consent of parties can make a decree final, which in its nature and terms *is interlocutory, as the court had decided in M’Call v. Peachy, 3 Munf. 296.

Upon the whole, I am of opinion, that the decree in the two suits of Branson v. Harvey, was final, and not being appealed from in time, the appeal must be dismissed.

GREEN, J.

I am of the same opinion. In *my*judgment, every decree which leaves nothing more to be done in the cause, no subject to be acted upon or disposed of, no question to be decided by the court, is in its nature final; and that, therefore, this decree, in respect both to the case of Borden v. Bowyer and the cases of Branson and Harvey, is final. But I have some doubts, whether this opinion be quite conformable with former adjudications of the court, on questions touching the character of decrees, whether interlocutory or final.

BROOKE, President.

I concur in the opinion, that the decree is final and conclusive, as to all the cases; and this, as well upon the former decisions of the court on like questions, as upon principle. I consider the case of Sheppard v. Starke, as in point: the court there, must have regarded the decree as final, else it could not have entertained the bill of review as regular and proper. As to the reservations in this decree, those and all similar reservations, are, in my view, simply provisions for the execution of the decree, as one final and conclusive, not reservations of any points for future consideration and decision.

The appeal was dismissed.