Particular reference to the nature of the controversy and the prior adjudications in respect to the same are indispensable in order that the motion and the effect of it, if granted, may be properly understood.
Noonan, on the first day of October, 1855, purchased of Lee certain real estate, situated in Wisconsin, by deed of warranty, and gave his bond for the purchase-money conditioned to pay four thousand dollars in four equal annual instalments, with interest, and gave a mortgage on the premises to secure the payments as specified in the bond, and the mortgage also contained a stipulation that upon any default on the part of the mortgagor in making the payments, including the interest and taxes as well as the principal, the whole of the mortgage debt, with interest, should, at the option of the mortgagee, become due and should be collectible on demand.
At the time the conveyances were executed the premises were in the possession of one John J. Orton, holding the same adversely to the grantor, in consequence of which the grantee required from the grantor an agreement to the effect that if the title failed the bond should not be enforced, and that if any incumbrances existed on the premises the amount of the same should be deducted from the stipulated consideration.
On the fourth of March, 1859, Lee filed a bill in equity in the District Court of the United States for that district, exercising Circuit Court powers, setting forth that the grantee and mortgagor had not paid either principal or interest of the mortgage debt; that he, the complainant, had notified the party that he claimed that the whole debt had become due, and praying for a sale of the mortgaged premises, the payment of the mortgaged debt, and for general relief.
Such proceedings were had in the cause that the court rendered a final decree in the same, the court finding that the sum of five thousand two hundred and sixty-seven dollars and twenty cents was due to the grantor and mortgagee of the said premises, and the decree also directed the sale of the premises, the payment of the mortgage debt, and that the surplus, if any, should be brought into court; that, if the moneys arising from the sale were insufficient to pay the mortgage debt, interest, and costs, the marshal, in his report of the sale, should specify the amount of the deficiency, and that the respondent should pay the deficiency with interest, 'and that the complainant may have execution therefor.'
From that decree the respondent appealed to this court, and at the December Term, 1862, the appeal was duly entered here on the calendar. When the cause was reached the parties were heard, and this court decided that the complainant, upon the proofs exhibited, was entitled to a decree for the whole amount of the mortgage debt by virtue of the special stipulation in the mortgage, although one of the instalments, according to the terms of the bond, was not due when the bill was filed. Pursuant to that decision the court affirmed that part of the decree, but the court also decided that in the absence of a rule of the court conferring such authority the court below could not enter a decree in such a case, that the complainant should have execution for the balance found to be due to him over and above the proceeds of the sale, and reversed that part of the decree.
Pending the appeal, however, and before the parties were heard in this court, to wit, on the seventh of February, 1862, the death of the respondent, John B. Lee, was suggested, and on motion leave was granted that the appearance of Alfred F. R. Bradley might be entered as administrator of the estate of the deceased, and he was admitted as appellee in the case. Doubts arising as to the validity of the title acquired by Noonan from his grantor, he commenced an action of ejectment in the State court against John J. Orton, the party in possession at the date of the conveyances, and gave notice to his grantor that he might appear and defend the title to the premises. Lee accordingly employed counsel, but the decision of the State court, rendered in January, 1863, was that the party in possession was seized in fee of the premises.