
    Goodwin and Others, Executors, Widow, and Devisees of Matthew Mayes, Deceased, v. Miller and Others.
    Thursday, March 28, 1811.
    Decrees — Interlocutory—What Constitutes. — A decree empowering1 an executor, for payment of debts, to sell the lands of his testator, and report his proceedings, in execution thereof, to the court, is not final, but interlocutory.
    See The President, &c. of William and Mary College y. Hodgson and others, and Fairfax v. Muse’s Ex’rs, 2 JI. & M. 557.
    See also Allen v. Belches and others, id. 595.
    
      
       Decrees — When Interlocutory — When Final —It will be seen from an examination of the numerous decisions on the subject of the finality of decrees, in reference to appeals, bills of review, etc., that they have all been founded upon the idea that a decree is not final unless the cause itself has been thereby terminated in the court below. Thus, though a decree decides upon the question of title, or otherwise settles the principles of the cause, Young v. Skipwith, 2 Wash. 300; Bowyer v. Lewis, l Hen. & M. 553 — though it dismisses the plaintiff’s bill as to one of two separate subjects of controversy, and as to the other also determines the rights of the parties, Ternpleman v. Steptoe, 1 Munf. 339 — though a decree nisi directs that the tract of land in the bill mentioned be surveyed and part thereof allotted to the plaintiff. and that the defendant shall execute to him a conveyance for such part, and pay the costs of the suit, Aldridge v. Giles, 3 Hen. & M. 136-though the decree directs the defendant to pay to the plaintiff hires to be ascertained by commissioners, and to deliver up the property to be sold by the commissioners. and the proceeds applied to payment of the plaintiff’s claim and the cost of suit, and the residue, if any, to be paid to the defendant, Mackey v. Bell, 2 Munf. 523, — though, at the suit of creditors against executors and devisees, it empowers the •executors to sell such of the lands held by the devisees, as after application of the testator's goods and credits, shall be necessary for the payment of his debts, Goodwin v. Miller, 2 Munf. 42“ though it awards to the plaintiff his principal money, interest, and costs, if it directs, in the event of an unproductive execution, that certain trust property shall be delivered by the defendant to the marshal to be sold, and the proceeds, after deducting a sum to be deposited for another, to be applied to the satisfaction of the plaintiff, Hill v. Fox, 10 Leigh 587 — though, iu a mortgage suit, it forecloses the mortgage, and directs tfie sale ot the property, Fairfax v. Muse, 2 Hen. & M. 558; Ellzey v. Lane, 2 Hen. & M. 592; Allen v. Belches, 2 Hen. & M 595 —yet. in all these cases, the decree is only interlocutory, if something yet remains to be done in the cause, and so the parties are not put out of court. For, no decree is final where the judicial action of the court in the cause has not been exhausted; not that the decree should respond to all the questions in controversy, but a decree is never fina] if something remains to be done in the cause to render it effectual. Cocke v. Gilpin, 1 Rob. 20, 21.
      On the subject of the finality of the decrees, the principal case is also cited with approval in Royall v. Johnson, 1 Rand. 427; Manion v. Fahy, 11 W. Va 493; foot-note to Fleming v. Bolling. 8 Gratt. 292 (containing an extract from Manion v. Fahy, 11 W. Va. 493); State v. Hays, 30 W. Va. 120, 3 S. E. Rep. 184 See further, monographic note on “Decrees” appended to Evans v. Spurgin, 11 Gratt. 615.
    
   In this suit, brought by certain creditors of Matthew Mayes, deceased, to subject the lands, devised by him, in the possession of the devisees, the late judge of the superior court of chancery for the Richmond district, on *the20th of May, 1805, decreed as follows: “The court, being of opinion that the lands, whereof the testator Matthew Mayes was seised at the time of his death, are by his testament made subject to payment of his debts, doth empower the defendants, who are executors thereof, if not before empowered, to sell such of the said lands as, after application of the testator’s goods and credits, shall be necessary to the payment of his debts, and report their proceedings, in execution of this decree, to the court.”

From this decree the chancellor, in vacation, granted an appeal: but it appearing to this court, on inspecting the record, “that the said appeal, having been allowed from an interlocutory decree, in time of vacation, was improvidently granted,” it was ordered that the same be dismissed, and that the cause be remanded for further proceedings._  