Opinion of the court. testimony given by the defendants in the case, but it is without weight sufficient to counterpoise the conclusion to which we tend. Nor is it inappropriate for us to say, concerning much of the testimony introduced by Horatio Leonard, that, when the father of a family introduces the juvenile members of it as witnesses in such a litigation as this has been, it cannot be done without its being considered as a forlorn effort of parental obliquity. As a result, we concur in the opinion,―That it has been established by the proofs in this case, as the rules of evidence require the denials of the allegations in a bill of equity to be disproved, that the payment made by Nehemiah Leonard and Horatio Leonard, for the purchase of the homestead farm was intended by them to be an advance of money for the benefit of Jonathan Tobey: That the conveyances executed by Jonathan Tobey and his wife to Horatio Leonard, and the release given by the complainant to him, of all his interest in the real estate purporting to have been conveyed by them, were intended by the parties to them, and were so received by Horatio Leonard, as securities for the repayment of the notes with interest, for twenty-five hundred dollars paid by Nehemiah and Horatio Leonard to the heirs of Rotch for the homestead farm, and that the defendant, Horatio Leonard, agreed to reconvey the real estate property attached to it, and all the rest of the real estate conveyed to him, when payment should be made of the sum of money advanced by the Leonards for the benefit of Jonathan Tobey, and such reasonable compensation as might be claimed by them for their agency and aid in the transaction. We are also of opinion,-when the complainant tendered to Nehemiah Leonard the sum necessary to pay the notes with interest, which had been given to the Rotch heirs, at the same time asking for a reconveyance of the property,-that he was entitled to it, and that it should have been made, and that the subsequent sale of it, as it was made, was in fraud of the complainant's rights. Opinion of the court. We have carefully considered the answers of R. and J. and R. Ashley, Spooner, and Hawes, to the allegations of the complainant's bill. Notwithstanding their denials of them, their narratives in each of their answers of their purchases of parcels of the real estate in controversy, connected with the testimony, establish the fact, that when they respectively made their purchases of the real estate from Nehemiah Leonard, or from the Ashleys, that each of them had such notice of the rights claimed to all of the real estate by the complainant, and of what had been the rights to it by Jonathan Tobey before he made a sale of it to the complainant, and that neither of them can be protected in a court of equity, as having been bonâ fide purchasers without notice. Our attention has also been given to the supplemental answers of the defendants to the bill of the complainant, relating to a conditional conveyance by Jonathan Tobey, of real estate in the County of Bristol, to secure Clapp from any liability he might incur by indorsing Tobey's paper, and Tobey's release of his interest and transfer of all his rights in a conveyance to the Wareham Bank. In our opinion, this interposes no obstacle to rendering a decree for the complainant. From the opinion which we have above expressed of the character of the transaction between the Leonards and the Tobeys, it becomes unnecessary for us to discuss the point made by all of the defendants in the cause, that they were not liable to the complainant, as the statute of Massachusetts had declared that no action shall be brought upon any sale of lands, tenements, or hereditaments, or of any interest in or concerning them, unless the promise, contract, or agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the judge charged therewith, or by some person by him lawfully authorized. DECREE REVERSED, and the defendants ordered to reconvey to the complainant all the real and personal estate (Ashleys, Statement of the case. Spooner, and Hawes, to join in the conveyance of the real), on repayment of the $2500, with interest, deducting $840, with interest, received by the defendant, Horatio, for wood standing on the land and sold. The cause remanded, with directions to proceed accordingly. GRIER and CLIFFORD, JJ., dissented. MILWAUKIE AND MINNESOTA RAILROAD COMPANY AND FLEMING, Appellants, v. Soutter, SURVIVOR. An order of the Circuit Court, on a bill to foreclose a mortgage, ascertaining-in intended execution of a mandate from this court-the amount of interest due on the mortgage, directing payment within one year, and providing for an order of sale in default of payment, is a "decree" and a "final decree," so far as that any person aggrieved by supposed error in finding the amount of interest, or in the court's below having omitted to carry out the entire mandate of this court, may appeal. Appeal is a proper way in which to bring the matter before this court. A DECREE had been made some time since in this court, against the La Crosse and Milwaukie, and the Milwaukie and Minnesota Railroad Companies, the road being then in the hands of a receiver, on a bill in equity, filed in the Federal court of Wisconsin, to foreclose a mortgage given by the former company on its road, &c., to two persons, named Bronson and Soutter (of whom the former was now dead), to secure certain bonds which the former road had issued, on which the interest was unpaid. The mandate to the court below, ran thus: "It is ordered that this cause be remanded, &c., with directions to enter a decree for all the interest due, and secured by the mortgage, with costs; that the courts ascertain the amount of moneys in the hands of the receiver or receivers, from the earnings of the road covered by the mortgage, which may be applicable to the discharge of the interest, and apply it to the same; and that if the Argument for dismissal. money thus applied is not sufficient to discharge the interest due on the first day of March, 1864, then to ascertain the balance remaining due at that date. And in case such balance is not paid within one year from the date of the order of the court ascertaining it, then an order shall be entered, directing a sale of the mortgaged premises." The court below, acting under this mandate and intending to execute it, did ascertain the amount of interest due, and directed payment within a year, and provided for an order of sale in default of payment; but that court did not ascertain the amount of money in the hands of the receiver or receivers, or apply any such amount in reduction of interest, or find the balance due on the first of March, or at the date of the order. The amount of interest was ascertained, and an order of sale provided for in default of payment within one year; nothing more. From this order of the court below the railroad company took an appeal here; which appeal a motion was made, on behalf of Soutter & Bronson, to dismiss. Mr. Cary, with whom was Mr. Carlisle, in favor of the motion: The order appealed from is not a final decree, nor in the nature of such a decree. The ordinary decree of foreclosure and sale, although not strictly a final decree, has been treated, in the practice of this court, as so far final that an appeal might be taken therefrom. But this is not a decree of foreclosure and sale. It is nothing more in effect than an order settling the amount found due on the mortgage, and a statement or determination of the time when the court will proceed to enter a final decree of foreclosure and sale, provided said amount is not paid. It is not a decree authorizing a sale if that amount is not paid. The court refused to make such a decree. This order, by its terms, requires that another decree shall be made before we are to have execution. To say that such a decree is final is a contradiction in terms. We can have no execution or benefit of this decree until a further and final decree is made. No appeal, therefore, can lie to this court. Argument against dismissal. No doubt the railroad company can have relief if it has suffered injustice; but its remedy is by application for mandamus to vacate the order below. Mr. Carpenter, contra: In Blossom v. The Railroad Company,* it was decided that a mere bidder at a marshal's sale, made on a foreclosure of a mortgage, might by his bid, though no party to the suit originally, so far be made a party to the proceedings in that court as to be entitled to an appeal here; and that, whether or not, this court would not dismiss an appeal by such person on mere motion of the other side, in a case where merits were involved. So, in Orchard v. Hughes, this court refused to dismiss an appeal from an order confirming a sale under a decree of foreclosure, and directed that the case should be heard with the appeal from the principal decree in the suit which ordered the sale. These cases, or the first of them, went further than what was declared in Perkins v. Fourniquet, which goes far enough for us. There a decree had been made in this court, affirming, "with costs and damages at the rate of 6 per cent. per annum," a decree, in the Circuit Court of Mississippi, for a sum of money; and a mandate was sent below reciting the judgment here, and directing it to be carried into effect. But an execution was issued for the principal sum, with interest at 8 per cent., the legal rate of Mississippi, and damages at 6 per cent., in addition, in all 14 per cent. An appeal was accordingly taken here. One question was, whether the execution had issued under a final "decree,” and so one that could be appealed from. Taney, C. J., speaking for the court says, "There was substantially an equity proceeding and final decree after the mandate was filed. It is true, they were summary; and necessarily so, as the matters in dispute under the execution were brought before the court on motion. . . . Plenary and formal proceedings are not necessary, and are never required where the dispute is confined to matters arising under process of * 1 Wallace, 655. + Id. 657. 14 Howard, 330. |