
    Lewis vs Outton’s Administrator.
    Error to the Madison Circuit.
    
      Decrees. Liens.
    
    Chancery.
    
      Case 121.
    
    
      May 18.
    Statement of the case and questions for xevis-* ion.
   Chief Justice Ewing

delivered the opinion bf the Court.

This record was before this Court at the last term, on the appeal of Portwood vs Outton’s administrator, and an opinion then delivered, settling the controversy between those parties. That opinion is referred to for a partial history of this case, which is now brought here by writ of error, sued out by Lewis against Outton’s administrator, assigning errors to the final decree which was rendered in September, 1839, which questions the correctness of the amounts ascertained and fixed by the Court at the previous February term, as due from Lewis to Outton, and intended to be secured by the settlement and article of agreement of 1833. Outton’s counsel has pleaded the statute of limitation as a bar to the writ of error, which presents the first question for consideration. The solution of this question turns upon the character of the decree of February, 1839. If that decree be final, as it ascertains and fixes the amount due from Lewis to Outton’s administrator, (the correctness of which is now questioned,) and was rendered more than three years before this writ was sued out, the plea is a good bar — if it was interlocutory only, then as it was within the power of the Court, and might be changed or modified at any time before the expiration of the term at which the final decree was rendered, no writ of error or appeal could have been taken from it — the plea is not a good bar, as the limitation does not commence running until the final decree was rendered.

The character of a decree ni si & decrees final.

The decree of February,' not only ascertains and fixes ihe amount due from Lewis to Outton’s administrator, “but orders and decrees that Lewis pay the same on or before the first day of the next June Court.” The terms of the decree imply that it is absolute and final, and, disconnected from the objects of the suit, we would feel bound so to regard it. It does not import on its face to be a decree ni si, which should not decree payment to be made absolutely, but should merely ascertain the amount due, and admonish the defendant, that unless payment is made on a future day designated, that a decree would be rendered enforcing the lien, on the property sought to be subjected. The mere fact that payment is ordered to be made at a future day cannot render the decree interlocutory. For if a complainant’s right to land were determined, and an order and decree rendered that a conveyance should be made, on or before some future ■day, the decree would be no less final, than if the order should be made for a conveyance forthwith. It is true that the Court might and would have control over the cause, for the purpose of enforcing execution of its decree: but the decree, notwithstanding, would be deemed at least so far final as to authorize an appeal or writ of error to this Court, and if so, then the statute would commence running from the rendition of the decree.

When the object of a bill is not merely the ascertainment of a sum claimed by the complainant, but the enforcement of a lien ' in satisfaction thereof (which is contested on the ground of jurisdiction) a decree ascertaining the balance and directing its payment is not final.

But though the decree in this case imports in its terms to be absolute and final, looking into the record and perceiving that the object of the suit was not merely the ascertainment and liquidation of the amount due, but the enforcement- of a lien upon property for its payment, and that but for the latter, object, the proceeding could mot have been instituted in chancery — indeed, that the, latter was the primary and main object of the proceeding — and if even the Chancellor could go beyond that object in his decree, he would not have the right to do so, orto decree personally against the defendant, until the property secured by the lien was exhausted: we must conclude-that the decree of February was intended»only as a monition to the defendant to make payment of the amount so ascertained, preparatory to a final decree for the sale of the property held under the lien, and that an execution was not intended to be sued out, nor could be-sued out on the decree, or other means used to enforce •it, than an enforcement of the lien upon the property, which was done by final decree at the subsequent September term. We think, therefore, that the latter decree is the final decree in this case, and which being rendered less than three years before this writ was sued out, the plea cannot be sustained.

Upon the merits, we would remark, that tve have looked into this record with scrupulous care and attention, as ■we have done twice before, between other parlies, and ■are constrained to come to the conclusion, that the amounts ascertained and fixed by the Court below, as the amount due and payable by Lewis to Outton’s administrator, greatly exceeds the amount that should have been ■decreed.

The art^c^e °f settlement between Lewis, Outton, Grimes, &.c. as to the amounts to be refunded by Lewis to Outton, is ambiguous in its terms, but we are inclined to think, that upon its face, and independent of extraneous facts, which will hereafter be noticed, it is'susceptible of being construed, and may be construed to embrace only the actual advances previously made by Outton, for the benefit of Lewis, and the costs and charges that he had been subjected to in the prosecution of the claims assigned to him to secure those advances, and should not be construed to embrace the entire amount of the claims so assigned.

The first clause of the article upon this subject stipulates, “that Lewis pay back, the sums advanced, with interest, and his costs, in one and two years equal instalments, for which the upper ferry and the farm upon which Lewis resides be mortgaged, &c.” The second clause provides, that “the money to be paid Outton as within, is embraced by the judgments in the Jessamine Circuit Court in his favor, &c. with the costs in the Fayette Circuit Court, Singleton vs Outton; also the costs in Jessamine, against Matson and Grimes, and the amount now in the suit, after deducting the amount of Singleton’s judgment against Outton, &e.” The first item refers to thejudgment which had been assigned by Lewis to Out-ton for $800, against Grimes and Matson; the last item, to the $5000 note on Grimes and Matson, which had also been assigned, and in the suit to collect which the parties had been engaged in a long, angry and unsuccessful litigation.

If the last clause in the article referred to was intended to embrace the whole amount of those claims, language much more appropriate and unambiguous, might,, and most likely would have been used expressive of that object, as the article was drafted by a skillful attorney, who had been employed in the suit, and was well acquainted with all the facts involved. The amounts to be refunded, are the amounts advanced, and which are embraced by those judgments and note, and, looking to the object for which they were assigned, secured by them. But it is not stipulated or argued, that the sum to be refunded is the amount of those judgments and note. The advances may be embraced by those judgments and note, and they may have been assigned to secure them, yet not be equal to the amount of the same, • And, as will hereafter be shown, they were assigned, at least the note of $5000, as a security for advances, and not as an absolute sale of the note.

This construction is sustained and borne out by the facts and admissions of Outton in this cause. James Haggin, Outton’s attorney in the suit on the note against Grimes and Matson, states “that he took an active part in the negotiation of the compromise, and he believes that the terms were reduced to writing mostly by him; that it was his effort and desire so1 to arrange it that Outton should be reimbursed Ms money advanced, with simple interest, and Ms costs, and no more, and with that intent the writings were penned.”

In the first assignment by Lewis to Outton, of a note of $5000, payable in eight years, and of the article of agreement between Lewis and Grimes and Matson, about the sale of the ferry, when the note sued on was delivered up to Lewis, to enable him to take depositions to sustain its genuineness, the plea of non est factum having been pleaded — in the last clause of the assignment the following stipulation is contained: “I, (meaning Lewis,) do hereby assign and transfer to said Outton so much of said contract and note as may save him harmless from any loss on the assigned note in suit as aforesaid, and do authorize said Outton to dispose of them, or either of them, (after the termination of the suit aforesaid,) or so much thereof as may be necessary' to pay said Outton the amount of the interest he may hold in the said note, and the cost expended in the prosecution of said suit.” This stipulation clearly shows that Outton held only a certain interest in the note, and not the absolute right, and that it was placed in his hands to secure that interest, which it may reasonably be presumed was created by some advancement made by Outton to Lewis, and which will be made to appear evident hereafter. One thing is certain, that he was not entitled to the whole note, but it was held by him as security only for some amount. He cannot be entitled, therefore, to the whole' amount of the note, but only to such interest in it as he shall show himself entitled to, or to such sum as he shall show he has advanced on the security of the assignment, over and above the amount admitted by Lewis in his answer as having been advanced.

Again, Outton studiously avoids setting forth in his original bill any advances made by him ; nor does he intimate that he held only a partial interest in the judgments and note, nor that they were assigned to him to secure money advanced, but goes for the whole, together with all the costs which he has expended, amounting in the aggregate to over nine thousand dollars.

Lewis answered, alledging-specifically, that Outton had, at different times, loaned him money, at 2i per cent, per month, till the sum amounted to $1500, when he drew a bill for the same, which was endorsed by Cunningham, bearing date about the 20th of October, 1828, payable in twelve months, and embracing 2i per cent, interest per month; that this bill, at the the-time it was given, embraced the whole amount, with the illegal interest that Was then owing from him'to Outton; that a part of the bill was paid at maturity, and the balance secured by another bill, carrying the same interest, amounting to $1056, beating date the 31st Oct. 1829, and payable in twelve months; that he made another arrangement with Outton, by which he procured other advances at the same rate of interest, and for which he executed two notes or bills secured by Wm. McConnell, the aggregate amounts of which, with- the usurious interest, evidenced by a memorandum in his possession, in the hand writing of the complainant, is $586 50 and $268 92. “He is certain that those notes did run a considerable time at that illegal rate of interest, and that a large portion of them is illegal interest.” That the complainant also settled for him with Steele $10, and that he obtained also another advance from the complainant, at the same rate of interest, to secure which he assigned him a nóte for $300 on John Curd. And he expressly denies that he ever received any other sums, or advancements, from the complainant, prior to the assignment of the note of $5000 and of the judgment of $800, or that any other advancements were made by Outton before the commencement of the legal controversy on those claims, -and that they were assigned only to secure those advancements, and no other.

An -evasive -answer to chaige of usury construed into an admission.

In the conclusion of his answer, he calls on the complainant to answer on oath, and say what advances he has made for or to him? When were they made? To whom, and in what were they made? What was the interest reserved? Was it not at the rate stated? Was it not embraced in the bills or notes? Did he not prepare and hand to be copied, that clause in the agreement which states, “that the demands to be secured to him were embraced by the judgments, &c. ?” And charges that if said clause be construed to embrace more than the actual advances made by Outton, and the costs, that it was inserted and made to bear that construction by the fraud of Outton, and was signed by him in entire mistake of its import.

Outton answers the cross answer of Lewis, as to the usury, evasively and suspiciously, and resorts to the usual device, that “he does not recollect,” &e. and endeavors to escape from responsibility, by alledging that “he purchased the acceptances of others, or the notes of Lewis from others, and paid his drafts on him ; that they occasionally settled, and in one of those settlements he received from him the two judgments,” &c. He says he bought the $1500 bill in market, at what rate of discount he does not recollect — so with respect to the McConnell bill, &c. — denies that one cent of usury was added to the ■Curd note. He thus tacitly admits the claims set out and •charged by Lewis, as embracing the whole amount of the •advances made to him or for him, and sets u.p or claims no •other, and does not deny that any other than those charged were made, nor that the Cunningham bill was reduced by payments to $1056, and for that sum renewed — nor pretend to deny that the judgments and note were assign, ed to secure those advancements, and for no other purpose. Nor does he deny that the advances only, and costs, were intended to be secured by the article, ox that the second clause, which seems to bear a different import, was prepared and handed in to be copied into the article fraudulently, &c. These evasions, admissions and omissions to answer, lead the mind irresistibly to the conclusion, that the charges made by Lewis are substantially true, and that consequently, usurious interest, by colorable pretences, was exacted at some rate, and most likely at the rate charged, and that no other advances were made before the commencement of the suits upon the claims assigned, than those speciefid in the answer of Lewis, and to secure them and them only were the assignments made. Nor have we any evidence in this cause, that any other was made after the commencement of the suits, except the advances made in the payment of costs, and other claims specifically mention, ed and provided for, or alluded to in the article of settlement.

Harlan Craddock and Caperlon and Robertson for plaintiff: Turner for defendant.

Upon the whole, we are perfectly satisfied that the Circuit Court erred in assuming as the basis of its decree, the whole amount of the several claims mentioned in the article as having been assigned, and that the decree is greatly beyond the amount that should have been decreed. But it is impracticable for this Court, in the present state of the record, to ascertain, with any certainty the amount that should be decreed — to attempt it, great injustice might be done to the one or the other party. It is, therefore, the opinion of this Court, that the decree of the Circuit Court be reversed, and cause remanded, that further steps be taken to ascertain the amount of the advancements made by Outton, to or for the benefit of Lewis, and also, the amount of usury exacted. Or that the case be submitted to an auditor, with power to hear proof, .examine the parties who are living, on oath, make a statement of the accounts, and report to Court, with a view to a final decree upon data more certain than ihat which is afforded by the record now before us.

And the plaintiff in error is entitled to his costs in this Court.

.[Judge Breck did not sit is this case.]

Guthrie for plaintiffs: Duncan and Ripley and Browne for defendants.  