Stoddard v. Van Bussum.

the writ was actually returned, nor is the date of its filing marked upon it. But on the 16th of October-the word "October" being written over (not in the handwriting of the solicitor) the erasure of the word "September "-the chancellor made an order reciting the previous decree fixing the liability of the defendant to pay the deficiency, and the issuance of execution, and the return of the sheriff showing the deficiency above mentioned, directing that a writ of fieri facias issue pursuant to said final decree to levy and make said deficiency, to wit, the sum of $10,633.03, together with interest from the 19th of September, of the goods and lands of the said John Van Bussum, together with the costs of the order and writ.

Under that order an execution was issued against Van Bussum, which produced no results.

An abstract of the order of October 16th was duly docketed in the supreme court on the 17th of October.

Stoutenburgh died on the 6th of March, 1891.

Letters of administration de bonis non cum testamento annexo upon the estate of Terhune were duly issued to the complainant on the 17th of May, 1897, and the bill herein was filed on the 23d of August, 1897, more than twenty years after the date of the original decree of foreclosure fixing the liability of Van Bussum to pay the deficiency, but less than twenty years since the actual sale of the premises and the order for fieri facias.

Nothing has ever been paid on account of the amount so found to be due.

Mr. John B. Humphreys, for the complainant.

Mr. John Griffin, for the defendant.

PITNEY, V. C.

The question raised on the case made is somewhat nice, and its solution depends in part upon the construction of certain statutes which I will state.

The fourteenth section of the Limitation act (Gen. Stat. p. 1975) provides as follows:

Stoddard v. Van Bussum.

"That judgments in any court of record in this state may be revived by seire facias, or any action of debt may be brought thereon within twenty years next after the date of such judgment, and not after."

The fifty-sixth section of the Chancery act (Gen. Stat. p. 382) provides as follows:

"That the decree of the court of chancery shall, from the time of its being signed, have the force, operation and effect of a judgment at law in the supreme court from the time of the actual entry of such judgment, and all decrees and orders of the court of chancery whereby any sum of money shall be ordered to be paid by one person to another shall have the force, operation and effect of a judgment at law in the supreme court from the time of the actual entry of such judgment, and the chancellor may order such executions thereon as in other cases."

Then follows a provision that it shall not become a lien upon and bind any lands other than those mentioned in the decree until an abstract is filed in the supreme court.

The seventy-sixth section of the Chancery act (Gen. Stat. p. 386) provides as follows:

"That it shall be lawful for the chancellor, in any suit for the foreclosure or sale of mortgaged premises, to decree the payment of any excess of the mortgage debt, above the net proceeds of the sales, by any of the parties to such suit who may be liable, either at law or in equity, for the payment of the same; provided, that there be a prayer to that effect in the bill of complaint."

Section 110 of the Chancery act (Gen. Stat. p. 394) provides as follows:

"That execution may issue, without a revival of the decree, at any time within twenty years from the date of such decree; provided, the parties to the decree, or those of them during whose lives execution may now issue without a revival, be then living," &c.

So far as the fourteenth section of the Limitation act bears upon the question to be dealt with it acts only by analogy. The only difference between that section and the one hundred and tenth section of the Chancery act is that the latter does not, by express language, forbid the issuing of execution after twenty years from the date of the decree; but the force and effect of the

Stoddard v. Van Bussum.

Chancery clause is precisely the same, and, in my judgment, prevents by implication and without the aid of the fourteenth section of the Limitation act the issuing of an execution after twenty years have elapsed.

The character of the decree upon which an execution against the goods and chattels and lands of the defendant may issue is fixed by the fifty-sixth section of the Chancery act, which, in my judgment, limits it to a decree by which an ascertained and fixed sum of money is ordered to be paid by one person to another. Such a decree is declared to have the effect of a judgment at law, and that execution may issue upon it against the property generally of the defendant.

The authority of the court of chancery to make a decree for deficiency against a bondsman in a foreclosure suit like the present-mortgagee against mortgagor-as a part of that proceeding, is found in the seventy-sixth section of the Chancery act enacted March 29th, 1866 (Nix. Dig. (4th ed.) p. 119), of which the present section is a transcript, with the added provision "that there be a prayer to that effect in the bill of complaint." This act worked a decided change in the practice, and, it seems to me, added to the power of the court and enabled it to combine and administer a purely legal with an equitable right. Chancellor Kent, in Dunkley v. Van Buren, 3 Johns. Ch. 331, refused, in the absence of statutory aid, to make such a decree; and Chancellor Green, in Klapworth v. Dressler, 2 Beas. 62 (at p. 65), recognized the soundness of that decision, and based the right to relief there given on the ground of the absence of legal remedy. The power of the chancellor to make a decree in personam was therefore plainly limited by the act to a decree for a duly ascertained deficiency; and, strictly speaking, as it seems to me, it could not be made until after that deficiency had been ascertained. For non constat that there would be a deficiency, and until one appeared the court could not give any judgment or decree. The utmost it could do in anticipation of a deficiency was to simply declare the right of the complainant as against the bondsman defendant, and to that office, as it seems to me, must the addendum to the decree for foreclosure and sale in this

Stoddard v. Van Bussum.

case be confined. The decree made use of in this case, which follows the form found in "Dickinson's Forms" and is the usual one, not only declares the liability but attempts to go further by directing that a fieri facias issue for the purpose of enforcing the liability of the defendant to pay a deficiency which might never arise, and the amount of which could not as yet be ascertained, and directs the sheriff to make his return of the proceedings under that fieri facias. It seems to me that that part of the decree was expletive and quite unwarranted by the seventy-sixth section of the Chancery act.

This view of the law seems to put the true character and essential quality of the decree of March 6th beyond all dispute. It must be held to be purely interlocutory, inchoate and contingent in its character. It resembles the interlocutory judgment at common law under the old practice, where, after reciting that the defendant, though duly summoned, says nothing in bar or preclusion of the action, whereby the plaintiff remains entirely undefended against him, proceeds:

"Wherefore the said plaintiff ought to recover against the said defendant his damages on occasion of the premises, but because it is unknown to the court what damages the said plaintiff has sustained by reason thereof, the sheriff is commanded that, by the oath of twelve men, &c., he diligently inquire what damages the plaintiff hath sustained by reason of the premises, and that he send the inquisition which he will take thereon to our court," &c., after the return of which inquisition ascertaining the damages, follows the judgment: "Theretofore it is considered that the said plaintiff do recover against the said defendant his damages, costs and charges so found," &c.

This has been the character allotted to such a decree by the decisions in this state. Bell v. Gilmore, 10 C. E. Gr. 104, where the chancellor (near the top of p. 106) says of a like decree that it was merely a contingent decree, and quotes with approbation the language of a California judge in treating of a similar decree, where he says: "There was no personal judgment for this amount, nor was there anything in the nature of a personal judgment beyond the mere direction for the issuance of the execution in the event of the insufficiency of the mortgaged prop

Stoddard v. Van Bussum.

erty to pay the debt. The whole matter was contingent, indefinite and uncertain, and so long as this continued to be the case no effect whatever could be given to it."

And again, in Mutual Life Insurance Co. v. Southard, 10 C. E. Gr. 337, in which the same view is taken (at p. 339); and he says that the first decree was, in fact, an inchoate decree merely, and that until the excess, if any, of the mortgage debt over the net proceeds of sale had been ascertained, it could not have the force, effect or operation of a judgment at law; that the power of the court which the statute confers is to make a personal decree for the excess.

The same view is taken by Vice-Chancellor Van Fleet in Newark Savings Institution v. Forman, 6 Stew. Eq. 436 (at top of p. 441), and by Mr. Justice Depue in Dawes v. Wheeler, 16 Vr. 67, where he holds that a decree like that of March 6th, 1877, in this case was not a decree for the payment of money; and again by Vice-Chancellor Van Fleet in Mutual Life Insurance Co. of New York v. Hopper, 16 Stew. Eq. 387 (at p. 390).

But the question is not so much as to the character of the decree of March 6th, 1877, as it is to that of the order or decree of October 16th, 1877. That order recites at length that part of the previous decree of March 6th which declares the liability of the defendant to pay the deficiency, and also recites and adopts the ascertainment by the sheriff of the precise amount of the deficiency and directs that execution issue for that amount. It does not, indeed, in express language, direct or order a certain sum of money to be paid by the defendant to the complainant in accordance with the language of the fifty-sixth section of the Chancery act, but it directs that a fieri facias do issue, pursuant to the first decree, to levy and make the sum ascertained as the deficiency. That, it seems to me, should be held to be, in effect, a decree that the defendant pay to the complainant so much money. The order should be read and construed as if the previous direction that the defendant do pay the deficiency when ascertained had been actually written in the decretal part of the order instead of being merely recited. Such was the view taken of a similar decree by the court of errors and appeals in Roll v.