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BUTTERFIELD V. USHER, 91 U. S. 246 (1875)

U.S. Supreme Court

Butterfield v. Usher, 91 U.S. 246 (1875)

Butterfield v. Usher

91 U.S. 246


Where the Supreme Court of the District of Colombia, at the general term thereof, rendered a decree vacating and setting aside a judicial sale of lands which had been confirmed by an order of the special term of said court, and directing a resale of them, held that the decree was not final, and that no appeal would lie therefrom to this Court.

On the 7th June, 1872, a decree was rendered by the Supreme Court of the District of Columbia in a suit in equity between Horace S. Johnston, plaintiff, and George Usher, defendant, directing a sale of certain lands, the property of Usher. In pursuance of this decree, a sale of the property was made to John W. Butterfield on the 30th of September. This sale was reported to the court Oct. 16, and on the 15th November an order of confirmation was entered unless cause to the contrary should be shown on or before Dec. 10. Cause was not shown by the time limited, and thereupon, on the 12th December, Butterfield paid the amount of his bid to the trustee who made the sale and received from him a deed of the property. Previous to this time there had been no order of the court directing a conveyance; but on that day the trustee reported to the court that he had received the purchase money, and executed the deed, and thereupon an order was entered

Page 91 U. S. 247

ratifying and confirming the sale and approving the deed. This deed was left for record in the land records of the District on the day of its execution.

On the 14th December and during the same term of the court, the order of Dec. 12 was set aside on the petition of Usher, and leave granted him until Dec. 21 to show cause against the confirmation. At the appointed time he did appear and made his showing, but on the 25th January an order of confirmation was again entered. From this order Usher appealed to the general term, where, on the 7th June, the following decree was entered:

"Upon the offer of the defendant making an advance on the sale heretofore made, it is ordered, adjudged, and decreed by the court this seventh day of June, A.D. 1873, that the sale heretofore made in this cause by Francis Miller, Esq., trustee, be, and the same is hereby, vacated and set aside. And it is further ordered that the said trustee may proceed to advertise and resell the property, and that the expenses of the cause heretofore incurred may be paid out of the proceeds to be realized from the sale hereby directed to be made. And it is further ordered that the money in the hands of the trustee be paid back to the purchaser, with interest thereon at the rate of ten percent per annum, to be paid by the defendant Usher, and to be deducted by the trustee from the proceeds to come into his hands from the further sale hereby ordered. And it is further ordered that the trustee, in reselling the property, put up the same at a price not lower than the sum realized at the former sale, together with the sum of five hundred dollars advance offered by George W. Hauptman."

From this decree Butterfield has taken this appeal. He alone appears as appellant, and Usher alone as appellee.

An appeal lies to this Court from the final decree of the Supreme Court of the District of Columbia in any case where the matter in dispute exceeds the sum of one thousand dollars. Rev.Stat. sec. 705.

"In case of the sale of things, real or personal, under a decree in equity, the decree confirming the sale shall divest the right, title, or interest sold, out of the former owner, party to the suit, and vest it in the purchaser, without any conveyance by the officer or agent of the court conducting the sale, and the decree shall be notice to all the world of this transfer of title when a copy thereof shall be registered

Page 91 U. S. 248

among the land records of the district; but the court may nevertheless order its officer or agent to make a conveyance if that mode be deemed preferable in particular cases."

Rev.Stat. relating to the Dist. of Col., sec. 793.

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