Hart v. Linsday. raise the money, and wished complainant to wait until the first of June, 1842; to which complainant stated he should have to go or send to Detroit to consult counsel as to whether he could do so without prejudicing his rights, and if he could, and defendant would pay all the costs in the case, and *$30 [*74] for his trouble and expenses in going to Detroit to consult counsel, he would wait until that time. After counsel had been consulted, the agreement was concluded, and the $30 and Master's costs were paid, and the complainant was to be at liberty, if the mortgage debt was not paid, to advertise the premises before the first of June, to be sold after that day. The premises were sold by the Master, and bid in by the complainant on June 13th, 1842. The affidavit of True P. Tucker confirmed the statement of the complainant as to the agreement to postpone the payment to the first of June, the payment of the $30, and the right to advertise the premises before the first of June, to be sold after that time. H. II. Emmons, in support of the motion. II. T. Backus, contra. tion. THE CHANCELLOR. After a decree has been entered on a bill regularly taken as confessed, the question of opening it to let in a defense on the merits, should be brought before the Court by petition In Wooster v. Woodhull, 1 J. C. R., 541; Parker v. Grant, id., 630; Lansing v. McPherson, 3 J. C. R., 424, and Russell v. Waite, ante, 31, the application was by petiAnd the answer the defendant proposes to put in should accompany the petition, that the Court may see its materiality, and that it is a full and sufficient answer. A decree regularly entered will not be opened, unless under special circumstances. A stronger case must be made out than is ordinarily required to vacate an order for taking the bill as confessed, before a decree has been entered upon it. This may be done on motion or petition. But, to enable the Court to judge of the merits of the application, the defendant must set forth the nature VOL. I.-6 81 Hart v. Linsday. [*75] ture of his defense, in the affi lavit or petition, *or produce the sworn answer he proposes to file in the case. Stockton v. Williams, 1 Har. Ch. R., 241. The defendant has not satisfactorily accounted for his delay in not making his application sooner. From his own statement he appears to have been guilty of gross negligence. The bill was filed June 21st, 1839, the subpoena served the same month, and the decree entered September 12th, 1840. Soon after the subpoena was served, he swears he employed, as he supposed, Messrs. Witherell & Buel to attend to the suit for him, and that he heard nothing more of it until August, 1841, -two years and more,-when he learned the complainant had obtained a decree against him. During this time he makes no inquiries of his solicitors as to the progress of the suit, nor does he so much as call on them, or give himself any trouble whatever about it. When he is informed a decree has been taken against him by default, what does he do? He does not go to his solicitors to learn the cause, but applies to complainant to give him until the following June to pay the money, and enters into an agreement for that purpose. He then waits. until the time has expired, or is about to expire, before he makes his application to this Court. To open the decree under such circumstances, would be establishing a most dangerous precedent. The agreement for further time is, of itself, a sufficient reason why this part of the defendant's motion should be denied. The costs were taxed September 14th, 1840. The reasons stated for refusing to open the decree apply to a re-taxation of the costs. They are a part of the decrce and were paid in part, under the agreement of the parties. In Morris v. Morris, 1 J. C. R. 44, the Court refused to order a re-taxation of costs after two terms had intervened, on the ground the application came too late. In the present case, nearly two years [76] have elapsed since the costs *were taxed, and a year since they were paid by the defendant. In Stockholm v. Robbins, 24 Wend. R. 109, and the cases there cited, the question of costs was between attorney and client, and not between the par Weed v. Lyon. ties to the suit. The Master should not have taxed the costs without the affidavit required by the ninety-third rule of the Court, but it is too late now to object to the irregularity. The costs of selling the mortgaged premises were taxed by the Master at $42.34. Of this amount, $20 were for printing the notice of sale, and $22.34 Master's fees. The sale was adjourned five several times, at the request of complainant, and on account of the illness of the Master. The expense of adjournments should not be borne by the defendant, unless made at his request. The Master charges a commission of $10. I think this too high. Commissions on mortgage sales should be one per cent on the first $500, and one-half of one per cent on the balance, the whole commissions in no case to exceed $10. Most of the other items were charged in the bill of costs taxed in September, 1840, and had been paid by the defendant, who should not have been charged with them a second time. The defendant may have an order for the re-taxation of these costs, and, on ascertaining the amount overpaid, a further order requiring complainant to repay the same to defendant, with the $35 balance of the purchase money still in his hands, with interest on both sums from the day of sale, and, on the same being paid to the defendant, or to the Register of this Court for him, the Master's report of sale to stand confirmed. *NATHANIEL WEED et al. v. JAMES LYON et al. [*77] The right of appeal is a statutory right, and, where a party has failed to comply with the provisions of the statute, within the time prescribed, the Court will not allow a re-entry of the decree to enable him to appeal.1 MOTION to re-enter a decree, to enable the complainants to appeal to the Supreme Court. 1 See Canfield v. Brig City of Erie, 21 Mich., 160; Elliott v. Dudley, 8 id., 62; Moore v. Ellis, 18 id., 77. 1w 77 54 376 Walker. 1w 77 82 555 Weed v. Lyon. A decree was entered March 18th, dismissing the complainants' bill with costs. At the same time, notice was given of an appeal, and, April 25th, application was made to the Chancel. lor to fix the amount of the appeal bond, which was ordered to be in the sum of $100. On the 28th day of the same month, & bond was prepared and executed, and handed by the complainants' solicitor to his clerk, with instructions to have it approved and filed; but, owing to the negligence of the clerk, it was not filed with the Register within the ninety days required by the statute. G. C Bates, in support of the motion. H. N. Walker, contra. THE CHANCELLOR. The statute regulating appeals from this Court, says: "Such appeal shall be claimed and entered within ninety days from the time of the making of such decree, or final order, and the appellant shall, within the said ninety days, file a bond to the appellee, with sufficient sureties to be approved by the Chancellor," &c. R. S. 379, § 122. The next section is in these words: "If the appeal shall not be entered and such bond be filed within the time above limited, no appeal shall be allowed." [*78] *It was conceded on the argument, that the Court has no power to enlarge the time given by the statute for appealing; but it was insisted it has power to permit a re-entry of the decree dismissing the bill, and, in that way, to restore to the complainants what they have lost. The Court may, undoubtedly, allow a decree to be re-entered, on a proper case being made out for that purpose; but it cannot for the purpose of evading or getting round the statute, which is positive, that the appeal shall be claimed and entered, and the bond filed, within ninety days from the making of the decree. The exercise of such a power would, in effect, be claiming for the Court a power to do indirectly what it cannot do directly; nay, more, a power to resuscitate a lost right, or to reinstate the complainants in what they have lost by their omission to comply Rood v. Chapin. with the statute, and not through any fraud or improper conduct of the defendants. The right of appeal from this Court to the Supreme Court, is a statutory right, given to either party who may be dissatisfied with the decision, on certain conditions, which can no more be dispensed with by a court of equity, than by a court of law, where the right has been lost by an omission to comply with the statute. It is the complainants' misfortune that the appeal bond was not filed within the ninety days; but it is not in the power of the Court, under the circumstances of the case, to give relief. See 2 Paige R. 413; 7 id. 245. Motion denied. *MILES V. ROOD v. MIRZA CHAPIN & MERRICK [79] S. CHAPIN. Where a party sold land for which other land was given in part payment, and was deceived in regard to the latter, the bargain was set aside and a reconveyance decreed. Where a party purchases land in possession of a third person, with a knowledge of that fact, he takes it subject to all equities existing between his vendor and the person in possession.1 THE bill in this case was filed to set aside a conveyance of real estate for fraud. It states, that the complainant, on the 28th of August, 1840, conveyed to Mirza Chapin, one of the defendants, forty acres of land situate in Genesee county, in consideration of a yoke of oxen, a cow, and forty acres of land situate in Wayne county. That complainant was induced to make the trade by the false and fraudulent representations of 'See Godfroy v. Disbrow, post, 260; Disbrow v. Jones, Harr. ch. 48; Norris r. Showerman, 2 Doug., 16; McKee v. Wilcox, 11 Mich., 358; Woodward r. Clark, 15 id., 104; Dawson v. The Danbury Bank, 15 id., 489; Bloomer v. Henderson, 8 id., 395; Hubbard v. Smith, 2 id., 207. |