
    Hiram Rankin and Wife v. James M. Hannan, Administrator of James H. Guthrie.
    A petition was filed by H., as administrator of O.. the assignee of a judg ment for money and order of sale of real estate, to satisfy the same, the object of which was to enable the plaintiff to enforce and carry this same into effect. The answer, reply and order of reference to a master, made by agreement of the parties, presented an issue of an equitable nature, which, if determined in favor of defendant, satisfied the judgment and extinguished the plaintiff’s right to enforce the same. The judgment based upon the master’s-report found, upon the issues joined, in favor of the plaintiff for part of the amount of said judgment still unsatisfied, and ordered a sale of the real estate in favor of the plaintiff, to satisfy the same. Held, that the defendant had the right to appeal from this judgment.
    Error to the District Court of Gallia County.
    . The only error assigned for a reversal of the judgment is, that the district court erred in dismissing an appeal by plaintiffs in error, from a judgment rendered against them in the court of common picas.
    It is essential to a clear understanding of this question, that a full statement should be made of the issues joined, and of the matters heard and determined befoi’e the master and in the court of common pleas, from'which an appeal was sought.
    The petition of defendant in error, plaintiff below, states as a cause of action, that at the May term, 1869, of the same court, one Isaac Carter recovered a judgment against said Hiram Rankin for $1,719.05, and costs, and also'a judgment and order of sale against said Rankin and wife to sell certain real estate, to satisfy the same; that subsequently, said Carter sold and assigned said judgment and order of sale to said Guthrie, who died in 1877 intestate; that said Hannan has been duly appointed and qualified as his administrator, and that no» part of said judgment has been paid.
    The prayer is, that said judgment and order of sale be revived, “ and for all other proper relief.”
    The defendant .answers: 1st. That said judgment has been fully paid. 2d. That on December 11, 1869, there was an account stated, including this Carter judgment, showing a balance due from defendant to said Guthrie for all indebtedness whatever of $2,639.18, and that in such statement sundry credits were omitted, which should be allowed in addition to those included in the account stated. 3d. That since said account stated sundry payments were made; the dates and amounts of which are set out, amounting in the aggregate to $2,900.90, which more than pays all that was owing to Guthrie, including the Carter judgment.
    The prayer is, that so much of said payments as are necessary be applied to satisfy said judgment and order of sale, and that defendants have judgment for the excess. To this, the plaintiff replies: 1st. Denying generally the special matter of the answer. 2d. Stating that, at the time the alleged payments were made, Rankin was largely indebted to Guthrie, on other and different matters than said judgment, and to a larger amount than all of said payments, and that all such payments have been rightfully applied thereon, leaving said judgment wholly unsatisfied.
    By the agreement of parties, the issues thus joined were referred to a special master to take the testimony and report specifically on the following points :
    1st. The amount due from Rankin to Guthrie before he purchased the Carter judgment.
    2d. The amount due at the time he purchased the same.
    3d. The amount of indebtedness accruing to Guthrie from Rankin upon other matters subsequent to such purchase.
    4th. All payments made on any of such indebtedness, upon what claims such payments were applied, and on what claims they were legally applicable.
    5th. What real estate embraced in the order has been sold, how has the purchase-money been applied, and what remains unsold.
    6th. And generally said master was ordered “ to hear all evidence and make findings on all points and facts, that said parties or either of them may request, in any way connected with a full and just understanding and adjustment of the matters in dispute between the parties in the action.”
    The master, after hearing the evidence, submitted a very elaborate report showing:
    1st. The amount due from Rankin to Guthrie, May 25,1869, the date of said judgment in favoi: of Carter.
    2d. The amount due June 24, 1869, the date of the purchase and transfer of the Carter judgment, including the same, after deducting sundry credits.
    3d. The balance due December 8, 1869, the date of said account stated, including the Carter judgment, after allowing sundry credits shown to have been made.
    4th. The amount of other indebtedness, incurred after said account was stated, and during the time said payments were being made, and the payments made thereon.
    5th. The master finds that sundry payments were made from time to time, and that by agreement between Guthrie and Ranlnn, all such payments were to be and were applied to the satisfaction of the various claims due Guthrie, other than the Carter judgment. lie states an account between tbe parties, and shows that, properly applying all the credits to the satisfaction of the other claims, there is still a balance applicable to the redaction of the Carter judgment, which being so applied, leaves a balance due thereon of $1,201.08.
    The master makes some further findings not necessary to be noticed in this connection. To this report, the defendant excepted, and upon a hearing the exceptions were overruled and the report was confirmed. It was therefore adjudged and oi’dered that that said judgment and decree referred to in the petition stand revived for the use and benefit of said plaintiff for the sum of $1,201.08, with interest and costs. The court then specially finds that certain lands covered by the original decree have been sold by consent of parties, and are exempt from the order of sale, and that certain other lands are subject to said order.
    From this judgment the defendant appealed, and the district court, on motion of defendant, dismissed1 the appeal on the ground that the case was not appealable.
    
      W. H. C. Ecker, D. A. Russell and Harrison, Olds & Marsh, for plaintiffs in error.
    
      W. J. Gilmore and S. H. Nash, for defendants in error.
   Johnson, J.

The judgment rendered against the plaintiffs in error, and in favor of Isaac Carter, may be regarded as two judgments: 1st. A judgment at law for money; and, 2nd. A judgment in equity for the sale of real estate for the amount found due in the judgment at law, to satisfy the debt.

It was not the object of the petition to revive the money judgment, for it is not suggested that it was dormant. It would become dormant in one of two ways only; either by the death of Isaac Carter, the judgment creditor, or by failure to sue out, execution for five years. Unless it had become dormant there, was no legal impediment to its collection by execution, the assignee using the name of the assignor for that purpose.

. Neither was the judgment in equity, or decree for the sale of land dormant, if, as we may assume, Isaac Carter is still living..

Decrees of this nature do not become dormant by a failure to issue execution for five years, as do money judgments.

' While the parties to the decree live, the case, for the purposes of the decree, is a lis pendens, though under the code practice the clerk is directed to leave it off the trial docket. Moore v. Ogden, 35 Ohio St. 430 ; Beaumont v. Ogden, 24 Ohio St. 456 ; Fox v. Reeder, 29 Ohio St. 181; Hunter v. Hopeton, 4 McQueen, 972.

By the death of Guthrie his right to enforce the judgment in equity, as well as his legal right to collect the judgment at law, vested in plaintiff as his personal representative. He might, as such representative,' have maintained an action for a money judgment on the original judgment at law, and had a new judgment in his own name for the amount found due at the time such new judgment should be rendered, and have enforced the same by execution. Healy v. Robey, 6 Ohio, 521; Tyler v. Winslow, 15 Ohio St. 364; Moore v. Ogden, 35 Ohio St. 433, 434. .This he has not sought to do. In substance the prayer is to authorize him, as the representative of the assignee, to carry into effect the original decree, and not to make a new decree or judgment.

Bills to enforce or carry into effect decrees in equity were well known in chancery practice. Mitford Eq. PI. ch. 1, § III., ¶ 6 ; 2 Daniels Ch. p. 1585, § YII.; Story Eq. PI. 429-432. .

Lord Redesdale, in the paragraph from Mitford, says: “ A bill of this nature was generally, partly an original bill, and partly a bill in the nature of an original bill, though not strictly original; and sometimes it is likewise a bill of revivor, or a supplemental bill, or both. The frame of the bill is varied ac-. cordingly.”

The necessity for such a bill arises from different causes, as where either of the parties under a decree has sold his interest therein, or in the subject-matter affected thereby. It may be brought by or against a person claiming as assignee of a party. The form of the final judgment is that the original decree be enforced with such modifications as events subsequent to its rendition render necessary to protect the rights of all parties. Mitford Eq. PI. cb. 1, § III., ¶ 6; Daniels Ch. Pr.; Story Eq. PI. supra ; Organ v. Gardner, 1 Cases in Ch. 231; Binks v. Rinks, 2 Bligh, 593 ; Cartarel v. Pasckal, 3 Peere Wms. 196 ; McGrew v. Andrews, 12 Met. 363.

While, under our civil code of practice, names and'forms of proceedings have been changed, yet the substantial rights of parties, in equity as well as at law, remain the same, except where changed by statute. We may therefore treat this petition as in the nature of a bill in equity to enforce the former decree for the sale of real estate, in favor of the personal representative of Guthrie, who became the owner by assignment.

Again, the answer, reply and order of reference, made by agreement of the parties, present issues of unquestioned equitable cognizance. They involve the question of a settlement between the parties, by an account stated, made by Guthrie with Rankin, who became the owner of the Carter claim, the correction of a mistake therein, the settlement of claims arising after said account stated, the proper application of numerous payments made by Rankin on these various claims and demands, the elimination of usurious interest, the ascertainment of what lands had been sold, since the original decree, what had been done with the purchase-money, and what lands remained subject to the decree. The report of the master is an elaborate response to these issues. ■ It involved an examination and adjustment of a number of claims and demands, other than the Carter judgment, and an equitable application of sundry payments. The issues thus presented, heard and determined, were founded on the answer, or, more properly, the cross-petition of defendant. To defeat the plaintiff’s right to enforce the decree, the defendant must show such a state of facts as would entitle him to have the same satisfied and canceled in whole or in part.

By express agreement of parties all these issues were referred to a master clothed with the largest powers. He was ordered, “ to hear evidence and make findings on all points and facts that said parties or either of them may request, in any way connected with a full and just understanding and adjustment, of the matters in dispute between the parties.”

An adjustment of the. matters in dispute other than the amount due on the Carter judgment became necessary, as the master found that these several payments were made under an express agreement that they should be applied first to the satisfaction of these other claims.

The master’s report shows that he was called on to exercise these enlarged powers, and to review and adjust large and complicated transactions between these parties, running through a series of years. This was a necessity arising out of the agreement above stated, as in no other way could the court determine whether said judgment had been satisfied in whole or in part. If we concede, however, that the petition tendered an issue at law, triable by a jury, the issue made up by agreement of parties, and founded upon the answer, was purely equitable in its nature and triable by the court. If the defense set up was found to be true, the right sought to be asserted by the plaintiff did not exist. The equitable matters involved in the issues raised on the answer and order of reference amount to a cause of action in favor of defendants, which if established, extinguished or superseded the plaintiff’s cause of 'action. This brings the case directly within the principle settled in Buckner v. Mears, 26 Ohio St. 514; Taylor v. Leith, 26 Ohio St. 427, where it was held the case was appealable from a final judgment thereon.

Judgment of the district covert reversed and cause remanded  