
    THE FREEDMAN’S SAVINGS AND TRUST COMPANY v. ROBERT P. DODGE, PHILIP A. DARNEILLE, FREDERICK W. JONES, WILLIAM L. DUNLOP, AND EMILIE M. DARNEILLE.
    
      Equity. —
    No. 3217.
    A decree was passed for the sale of real estate described in a deed of trust, and that complainant should recover of the defendant any deficiency over and above the proceeds of sale. The decree was upon appeal affirmed by the Supreme Court of the United States, and the case remanded to this court; and the proceeds of sale being insufficient to pay the debt, a personal judgment against the defendant was allowed, in conformity with the original decree.
    STATEMENT OE THE CASE.
    The Freedman’s Savings and Trust Company filed the original bill, praying to set aside a release of a trust deed on the ground of fraud in its execution. On the 19th day of January, 1869, the defendant Dodge made three promissory notes in the sum of $18,000, payable to the order of one Benjamin Darby, and at the same time, with his wife, executed and delivered to the defendants Jones and Darneille the deed of trust in question, on certain real estate in the city of Georgetown, to secure the payment of said notes. The latter were endorsed by said Darby, and were for a valuable consideration sold and delivered to the complainant, and have ever since belonged to it. The bill then alleges that on or about the 22d day of July, 1871, the said Jones and Darneille, without the knowledge, authority, or consent, and in fraud of the rights of the complainant, and while the complainant was the holder and owner of the notes, executed and delivered to said Dodge a release bearing date December 31,1870, of the said deed of trust, and thereby undertook to discharge the real estate embraced therein from the operation of said trust, and that said Dodge, Jones, and Darneille knew that the notes were then due and unpaid, and that they were the property of and held by the complainant. The bill concludes with a prayer that the release be decreed to be null and void, and of no effect as against the complainant, and that the real estate be sold under the decree of this court, and that out of the proceeds the amount due the complainant on said notes be paid; and that complainant may have a judgment against said Dodge, and execution thereof as at law. The cause was heard at the special term upon pleadings and proofs, and the bill dismissed. The general term reversed this determination, and passed a decree annulling the release, and setting aside two other conveyances of the property that had been made by the parties, and directed the sale of the property in parcels, and that the proceeds arising from such sale should be applied to tbe extinguishment of the amount due upon the said promissory notes. The decree then provides that “ the plaintiff have and recover of the defendant Kobert P. Dodge whatever amount may remain due upon the three promissory notes mentioned and described in the bill of complainant, and made by the said Robert P. Dodge after the application thereto of the proceeds of said sales, together with the costs of this suit, and that the said plaintiff have execution therefor as at law.”
    From this decree an appeal was taken to the Supreme Court of the United States, and it was there affirmed. (2 Otto, 370.) Upon the remittitur of the case to this court, an application was made on the decree of the general term, and on the decree of the Supreme Court of the United States affirming same, for the appointment of á trustee to sell the property; and on the 14th day of March, 1877, an order was passed appointing a trustee, and directing the manner of his proceedings in conducting such sale. The report of the trustee being made, a reference to the auditor took place to state his accopnt and to make the proper distribution of the fund. The report of the auditor shows that the proceeds of the sale are insufficient to pay the debt and interest thereon, and that such deficiency amounts to over the sum of $7,000. A motion was then made in the special term for a personal judgment against the defendant Dodge for the amount of the deficiency, as provided for in the decree of the general term, and that motion has been certified here to be heard in the first instance.
    
      Enoch Totten, for complainant.
    Courts of equity have always rendered judgments for the payment of money, and their rules provide for the enforcement of such judgments.
    In the courts of equity in England, a decree for the payment of a specific sum of money has the effect of a judgment at law, and may be enforced by a writ of fieri facias. (Adams Eq., 395; 2 Dan. Ch. Pr., 1020.) By the eighth rule in equity prescribed by the Supreme Court of the United States, it is provided that in cases where the decree is solely for the payment of money, the final process for its execution shall be a writ of execution in'the form used in suits at common law in actions of assumpsit.-
    
    Our own rule on this subject is as follows: “Final process to execute any decree may, if the decree be solely for the payment of money, be by a writ of fieri facias, or by sequestration attachment against real estate, goods, chattels, or credits of the defendant.” (Eq. Rule 84.)
    It seems to be clear that, according to the equity practice which has prevailed from time immemorial, and which now prevails, this court has not only the power, but it is its plain duty, to render a personal judgment for the balance due on the notes. The whole case is before the court, and the facts ’are undisputed. The balance due has been ascertained. In addition to the force of precedents and immemorial usage, we have a statute prescribing the method of proceeding in-cases of this kind. The tenth section of the act of February 22, 1867, provides that “the proceeding to enforce any lien shall be by bill or petition in equity, and the decree, besides subjecting the thing upon which the lien has attached to the satisfaction of the plaintiff’s demand against the defendant, shall adjudge that the plaintiff’ recover his demand against the defendant, and that he may have execution thereof as at. law.” (14 Stats., 404; Rev. Stats. D. C., sec. 808.) The decree in this case was framed upon this statute.
    
      W. S. Cox, for defendant Dodge.
    The decree in personam was interlocutory. It simply declared that jn a contingency which might never have occurred, to wit, the failure of the proceeds of sale to satisfy the debt, the plaintiff should recover of the defendant a sum yet to be ascertained. It is evident that no execution could issue on such a decree, and that a further decree is necessary therefor. The distinction between final and interlocutory decrees is clearly drawn by the Supreme Court of the United States. A decree is final which leaves nothing to be litigated between the parties and awards execution. (Witenburg v. United States, 5 Wall., 819; Bernard v. Gibson, 7 How., 650; Chace v. Vasquez, 11 Wheat., 429; Young v. Smith, 15 Pet., 287; Perkins v. Fourinquet, 6 How., 206; Craighead v. Wilson, 18 How., 199; Beebe v. Russell, 19 How., 283; Farelly v. Woodfolk, Id., 288.)
    The decree in personam is erroneous, and was inadvertently passed without argument or special consideration. This bill was filed, primarily, to set aside a release of a deed of trust and to reinstate the trust. Incidentally, the bill went further, and prayed that the property might be sold under decree of the court. The highest effect that can be given to the -case in favor of the complainant is to treat it as a foreclosure suit. But in such a suit a court of equity cannot give a personal decree against the mortgagor, according to the general principles and practice of equity. (Noonan v. Lee, 2 Black, 500; Orchard v. Hughes, 1 Wall., 77.) It may be supposed to be authorized by act of Congress of February 22, 1867, chapter 64, volume 10; but this is clearly an error.
    The decree in personam being erroneous, and being merely interlocutory, the court ought not to enforce it by a final decree, if it can be avoided, and it can be by either rescinding or disregarding it. Thus it was held, in Fourinquet v. Perkins, 16 How., 82, that where a case is before the court on final hearing, the judge may reverse his former decision in the cause and dismiss the bill if justice requires it; all previous interlocutory orders are open for revision. In that case, after an interlocutory decree had been passed, a decision by the Supreme Court in another case showed it to be erroneous ; wherefore it was reversed by the same court which rendered it.
   Mr. Justice MacArthur

delivered the opinion of the court. After stating the case, he continued as follows:

The first objection made to this motion is, that the portion of the original decree directing that the complainant have and l’ecover of the defendant Dodge any balance remaining unsatisfied over and above the sales of the property, is a decree in personam- and interlocutory. We think, however, that, after the affirmance of that decree by the Supreme Court upon his own general appeal, he is estopped from raising this point now. It is a matter of settled practice that all interlocutory orders or decrees are subject to review and revision by an appellate tribunal upon an appeal from a final decree in the same cause, and that whatever might have been properly decided is to be considered as settled and finally determined. The appeal was general; the affirmance being equally general, how can we limit its effect ? Moreover, it was the defendant’s own appeal. A decree of foreclosure was before the Supreme Court in Noonan v. Lee, 2 Black, 499, which contained a clause that the mortgagor should pay the balance which riaight remain unsatisfied after exhausting the proceeds of the mortgaged premises, and the court considered it and reversed that part of the decree, and the competency of the court to do this was not questioned. A decree of foreclosure and sale of mortgaged premises is such a final decree as may be appealed to the Supreme Court. (Ray v. Low, 3 Cranch, 179.) And the present case is quite analogous, and undoubtedly the defendant would have been entitled to the full benefit of the objection he now makes, if it were a valid one, had it been called to the consideration of the appellate tribunal. In the case of Noonan v. Lee the court announced that, in the absence of a rule authorizing a decree for a deficiency, it was not competent for the Circuit Courts to make an order of that description, and that they could not assimilate their practice in this particular to that of the State courts. In 1864 the Supreme Court, for the purpose of setting this difficulty aside, adopted a general rule of practice in the Circuit Courts of the United States for the foreclosure of mortgages, which prescribes that a decree may be rendered for any balance that may be found due over and above the proceeds of sales. (1 "Wall., 5.) In addition to our genei’al jurisdiction, we possess that of Circuit Courts, and our practice is regulated by the rules prescribed for those courts where we have none of our own. The bill in this case prays that the property be sold and for a judgment against Dodge. Now, if the decree in this case is analogous to that in a foreclosure suit, (and this seems to be admitted,) there can be no objection under this rule to that part of it now under consideration. Besides, our own equity rule 84 provides that “final process to execute any decree may, if the decree be solely for the payment of money, be by a'writ of fieri facias,” &c.; and section 808 of the Revised Statutes of the District of Columbia gives a similar power in all proceedings to enforce liens by bill in equity. The tedious process of English chancery for enforcing decrees have been done away not only here, but the same object has been obtained by the 1 and 20 Victoria, chapter 110, section 18, which directs that all decrees and orders of courts of equity, by which any sum of money or costs shall be payable to any person, shall have the effect of judgments at law, and the general orders of the court provide for the same process of executions as at law. (Adams Eq., 395.) We have, by this practice,, a simple method of giving effect to a decree for the payment of money. When the decree provides that the defendant shall pay, it is then only necessary to ascertain the amount. This has been done, and it only remains to perfect the decree as to the sum of the deficiency, and then to issue the execution against the property of the defendant as on a judgment at law.

As these observations dispose of the case, we will pursue the subject no further. The motion is allowed, and the solicitor for complainant may prepare the necessary order.  