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Opinion of the Court.

This petition for a rehearing having been denied, petitioner appealed to this court.

Mr. H. H. Buckman for appellants.

Mr. Rufus K. Sewall, appellee, in person submitted on his


MR. JUSTICE BROWN, after stating the case, delivered the opinion of the court.


As this appeal was taken long after the act of March 3, 1891, establishing the Court of Appeals, went into effect, it should have been taken to the Court of Appeals of the Fifth Circuit, unless the case be one within the fifth section of the act, wherein the jurisdiction of the court is in issue. In such cases, however," the question of jurisdiction alone shall be certified to the Supreme Court from the court below for decision." There is an entire absence of such certificate in this case absence which was held to be fatal to the appeal in Maynard v. Hecht, 151 U. S. 324; Moran v. Hagerman, 151 U. S. 329; Colvin v. Jacksonville, 157 U. S. 368; and Davis & Rankin Building Company v. Barber, 157 U. S. 673. It is true that in In re Lehigh Min. and Mfg. Co., 156 U. S. 322, we held that the certificate was not necessary, inasmuch as it appeared in the decree that the question involved was only a question of jurisdiction, and the judgment not only recited that the court considered it had no jurisdiction of the case, and therefore dismissed it for want of jurisdiction, but the District Judge certified in the bill of exceptions that it was "held that the court did not have jurisdiction of the suit, and ordered the same to be dismissed," and, in the order allowing the writ of error, certified in effect that it was allowed "upon the question of jurisdiction." So, also, in Shields v. Coleman, 157 U. S. 168, where the court below, granting the appeal, said, "this appeal is granted solely upon the question of jurisdiction," and made further provisions for determining what part of the record should be certified to this court under the

Opinion of the Court.

appeal, we held this to be a sufficient certificate of a question of jurisdiction under the act.

In this case, however, the only question of jurisdiction is raised by the demurrer of Sewall to the petition, which is upon two grounds; first, that a proper and final decree had been made adjudicating all the issues in the cause; and second, that the court had no power or jurisdiction to grant the petitioners relief. This, however, is in substance only a general demurrer to the bill for the want of equity.

In the petition of Sarah Van Wagenen for a rehearing it is alleged that a final decree was rendered in 1851, fully and finally disposing of the cause, which exhausted all the jurisdiction of the court, and that it was beyond its power and jurisdiction to vacate the survey ordered by such decree by the subsequent proceedings taken in 1885. It is very doubtful whether the question thus raised by her, of the authority to vacate and set aside a previous decree of the court, did nct involve a power to exercise a jurisdiction already vested rather than a question of jurisdiction itself, within the meaning of the act of March 3, 1891. Carey v. Houston & Texas Central Railway, 150 U. S. 170, 180.

In any event, however, we cannot be required to search the record to ascertain whether the petition was dismissed for the want of equity, or for some other reason. Shields v. Coleman, 157 U. S. 168, 177. Indeed, it appears to have been the very object of the fifth section of the act of 1891 to have the question of jurisdiction plainly and distinctly certified to us, or at least to have it appear so clearly in the decree of the court below, that no other question was involved, that no further examination of the record would be necessary.

The appeal is accordingly


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No. 132. Argued December 19, 1895. - Decided January 6, 1896.

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The decree, to review which this writ of error was sued out, was not a final decree, and this court cannot take jurisdiction.

The rule is well nigh universal that, if a case be remanded by an appellate court to the court below for further judicial proceedings, in conformity with the opinion of the appellate court, the decree is not final.

THIS was a bill in equity originally filed by Elizabeth Kirchoff, June 12, 1882, in the circuit court of Cook County, Illinois, against the appellant, to enforce the specific performance of a certain agreement for the conveyance to her of two lots of land in the city of Chicago. The prayer of the bill was subsequently amended by the addition of a clause praying that the plaintiff might be allowed to redeem the premises according to the terms of said agreement.

The controversy between these parties has been the constant subject of litigation since July, 1878, and in one form or another has been twice to the appellate court of Illinois, and three times to the Supreme Court of the State. The facts are somewhat complicated, but so far as necessary to the disposition of this case may be summarized as follows:

On May 8, 1871, Julius Kirchoff, being engaged in the distillery business in Chicago, borrowed $60,000 of the Union Mutual Life Insurance Company, and to secure the payment thereof, executed, together with his wife Elizabeth, and her mother Angela Diversey, a joint judgment note for $60,000, and a trust deed covering certain real estate in Chicago belonging to Kirchoff and his wife, and certain other property, including a farm in Cook County, owned by Mrs. Diversey. The money received from the loan was put in the bank to the credit of the firm of Kirchoff Bros. & Co., which soon after failed.

Statement of the Case.

In 1876, default having been made in the payment of interest and taxes, judgment was taken against Mrs. Diversey on the note, after certain unsuccessful negotiations towards funding the indebtedness into a new loan at a lower rate of interest, and on July 11, 1878, proceedings were commenced in the Circuit Court of the United States to foreclose the trust deed. The bill in addition sought to cure a misdescription of the property belonging to Mrs. Diversey, who filed an answer denying the right of the company to cure the misdescription, and averring that the notes and mortgage were procured from her by misrepresentation.

From this time the relation of the parties seems to have remained unchanged until June, 1879, when an agreement was reached by which the company released to Mrs. Diversey its claim upon forty acres of the land belonging to her, and she executed to it a warranty deed for the remainder of the premises. About the same time, Mrs. Kirchoff and her husband executed a quitclaim deed of all the property belonging to them, and included in the mortgage. The deed from Mrs. Diversey was immediately placed on record, but the deed from the Kirchoffs was withheld by the agent and attorney of the insurance company.

It was claimed by Mrs. Kirchoff that, during the negotiations which culminated in the execution of the above deeds, it was agreed that the insurance company should reconvey to her two lots included in her deed, one of which was then occupied as a homestead, the other cornering upon it, but facing the other way; that the price at which the reconveyance should take place was their valuation at a previous appraisement made by one Rees, viz., $7500 and $2500 respectively, and that Mrs. Kirchoff was to execute in payment therefor her notes for $10,000, extending over a period of ten years, bearing interest at six per cent, and secured by a mortgage upon the two lots. It seems there were certain intervening claims on one of the lots, growing out of a sheriff's deed, executed pursuant to a sale on a judgment against Mrs. Kirchoff, rendered subsequently to the original trust deed, but prior to the deed from Kirchoff and wife to the company,

Statement of the Case.

which rendered necessary a further prosecution of the foreclosure proceedings, in order that the company might obtain a good title to the premises, so as to convey a clear title to Mrs. Kirchoff and take from her a mortgage which would be a first lien thereon. It is claimed that this matter was explained to Mr. Kirchoff, her husband and agent, and he was assured that the prosecution of the foreclosure proceedings would not in any manner affect the agreement which had been made, but that, as soon as the company got a deed from the master in chancery, it would carry out its part of the contract by conveying to Mrs. Kirchoff the premises in question, and would then take the mortgage from her. She alleged that, relying upon this agreement, no defence was made to the foreclosure proceedings by her, and the same were prosecuted to a decree, and the master's deed issued thereon to the insurance company January 21, 1882. The object of the bill in this case was to insist upon this right of redemption in accordance with its terms.

The insurance company, on the other hand, contended that an inspection of the record showed that no such agreement was ever concluded, and that the state court was bound by the decree of the Federal court foreclosing the mortgage, and had no jurisdiction to review it. It was not disputed that propositions similar to the so called agreement were discussed between the Kirchoffs and the agents of the insurance company, or that assurances were given by the latter of the probable willingness of the insurance company to sell the land on the terms named; but it is claimed that when the insurance company was advised of the proposition, it was instantly and unequivocally declined, and this action of the company communicated to Mrs. Kirchoff in time to prevent any injury to her from the quitclaim deed. That, after having been thus fully advised, she elected to deliver the deed, and in that manner get the benefit of the release from her indebtedness.

A demurrer was filed to the bill which was overruled, when defendant answered, denying the agreement for redemption set forth in the bill, and also setting up the statute of frauds as a defence. The case coming on for a hearing upon pleadings

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