« 이전계속 »
were a money demand, on which a sum certain had been given by a judgment, it would have been the duty of the judge to take care that good security was given ; but that in ejectment, where only nominal damages are recovered, the court cannot interfere to enlarge the security to recover damages which a plaintiff may recover in an action for mesne profits, or other losses he will sustain by being kept out of possession. The court held that the case was not provided for by any legislation of Congress, as had been done in England by the statute of 16 & 17 Car. II., c. 8.
In Rubber Company v. Goodyear, 6 Wall. 153, the subject again came before this court on a question as to the amount of security required upon appeal from a personal decree in equity, where a portion of the amount had been secured by a deposit in court.• The decree was for over $300,000, and the judge following the usual practice required a bond in double tbe amount of the decree. The defendants, as security for the claim. had deposited in the court below government bonds to the amount of $200,000. On a motion in this court to reduce the amount of the bond, the court reduced it to $225,000. Chief Justice Chase, delivering the opinion of the court, said: " It is not required that the security shall be in any fixed proportion to the decree. What is necessary is, that it be sufficient."
From the amount involved in this case, and the eminence of the counsel engaged in it, it was no doubt carefully considered. After its determination, the court made a general rule as to the amount of indemnity required in supersedeas bonds, which now stands as the 29th Rule of the court. This rule declares that “such indemnity, where the judgment or decree is for the recovery of money not otherwise secured, must be for the whole amount of the judgment or decree, including just damages for delay' and costs and interest on the appeal; but in all suits where the property in controversy necessarily follows the event of the suit, as in real actions, replevin, and in suits on mortgages ; or where the property is in the custody of the marshal, under admiralty process, as in case of capture or seizure; or where the proceeds thereof, or a bond for the value thereof, is in the custody or control of the court, indemnity in
all such cases is only required in an amount sufficient to secure the sum recovered for the use and detention of the property, and the costs of the suit, and just damages for delay,' and costs and interest on the appeal."
Since the adoption of this rule, the matter has come up for consideration in several cases. In French v. Shoemaker, 12 Wall. 86, where the matter in controversy was the possession of a railroad, the interest of the defendant in which had been pledged as security for $5,000, and which was in the hands of a receiver, upon a decree for the complainant, and an appeal, the bond taken for a supersedeas was in the penalty of $500; and this court, after reciting the rule, held that nothing appeared to show that the bond was insufficient.
In Jerome v. Mc Carter, 21 Wall. 17, an appeal was taken from a decree of over a million of dollars for the foreclosure and sale of a canal, subject to a prior lien of over a million and a half of dollars. The canal company had become bankrupt, and the assignees in bankruptcy brought the appeal. The appeal bond required of them was $10,000; and motion was made in this court to have the amount of security increased. The court after reviewing the previous cases, and adverting to the 29th Rule, refused the motion, holding that the amount of security in such a case was in the discretion of the judge who took the bond, and that this court would not interfere with that discretion, unless there had been a change of circumstances requiring additional security. The Chief Justice said : “ This is a suit on a mortgage, and, therefore, under this Rule, a case in which the judge who signs the citation is called upon to determine what amount of security will be sufficient to secure the amount to be recovered for the use and detention of the property, and the costs of the suit, and just damages for the delay, and costs and interest on the appeal. All this, by the rule, is left to his discretion.” It being contended that the judge had disregarded the established rule, to require security for the interest accruing pending the appeal, which in that case would amount on the debt due to the complainant and on the prior liens, to more than half a million of dollars; the court held that this is not the requirement of the rule; that the object is to provide indemnity for the loss by the accu
mulation of interest consequent upon the appeal, not for the payment of the interest: and that, as to this, the judge must determine. It was added, that the decree did not interfere with an action at law against the company, if it were not bankrupt, nor with proving the claim in bankruptcy, and obtaining a dividend, since it was bankrupt.
So far as the point decided in this case goes, it determines that, on an appeal from a decree for the foreclosure of a mort gage, the appeal bond is not intended as security for either the amount of the decree or the interest accruing pending the appeal, but for such damages as may arise from the delay incident to the appeal ; and although it is intimated that this damage may depend upon the use and detention of the mortgaged property, yet that was not the point in judgment.
In Ex parte French, 100 U. S. 1 (an ejectment case), the bond being amply sufficient to cover the damages, or mesne profits, recovered in the court below, this court refused to interfere, by a mandamus, to compel the court below to proceed to execution. The Chief Justice said: “In this view of the case, the bonds are sufficient in amount and form. So far as the money parts of the judgment are concerned, they are far in exces; in each instance of the amount recovered against the several defendants who seek the stay ; and as to the damages on account of the detention of the property, we decided in Jerome v.
McCarter, that the amount of the bond rested in the discretion of the judge or justice who signed the citation, or allowed the supersedeas, and would not be reconsidered here."
In this case the court did look to see whether the bond was sufficient to cover the mesne profits or damages recovered below; but declined to examine into its sufficiency to secure the mesne profits accruing pending the proceedings in error, leaving that to the discretion of the judge. The case decides nothing as to whether such mesne profits would be recoverable under the bond or not. By the English statute of 16 & 17 Car. II., c. 8, as we have seen, they would be so recoverable; but in Roberts v. Cooper, before cited, it was held that our statute does not provide for the case.
The last case to which we shall refer is Supervisorv. Kem nicott, 103 U. S. 554. There the county whereof the plain
tiffs in error were supervisors had given a mortgage upon its swamp lands to secure an issue of bonds by the Mount Vernon Railroad Company. This mortgage was foreclosed, and the lands were decreed to be sold to raise the amount due, which was ascertained by the decree. The county appealed, and a supersedeas bond of $10,000 was required to be given. The decree being affirmed by this court, a suit was brought on the appeal bond, and judgment was given against the county for the whole penalty. The judgment was brought here by writ of error, and reversed on the ground that no damages had been shown which could be recovered on the bond. The damages set up by the plaintiffs were: 1, the interest on the debt which accrued pending the appeal, which exceeded the penalty of the bond ; 2, the balance of the debt which remained unsatisfied after the lands were sold, which largely exceeded the bond. We held that neither of these items could properly be assigned as damages within the meaning of the condition of the appeal bond. In that case, as was observed by the court, no claim was made for the use and detention of the lands pending the appeal, except in the way above stated. The debt was not the debt of Wayne County, and no damage could have resulted from the stay of execution except the delay in the sale, as no personal judgment could have been rendered against the county for the debt, and of course no execution could have been issued against it.
This case does not decide the precise question now before us, because there was no party before the court who was personally liable for the debt, and no claim was made for intermediate rents and profits, or for use and detention of the land.
In view of the authorities, therefore, as far as they go, if the bond in the present case is to be regarded as importing nothing more than the bond prescribed by the statute, it is clear that it did not operate as security for the original decree, nor for the interest which accrued pending the appeal, nor, by consequence, for the balance of these amounts, or either of them, after applying the proceeds of the mortgaged property. The item of $530 costs unpaid by the defendants in the original foreclosure suit come under the same head, being part of the original decree, to pay which the lands were ordered to be
sold. The only ground of recovery upon the bond could be: 1, the depreciation of the property in market value pending the appeal; or, 2, its deterioration by waste, or want of repair, or the accumulation of taxes or other burdens; or, 3, and detention of the property pending the appeal, that is, the rents and profits; or, 4, the non-payment of the costs of the appeal, which accrued in this court; but the special verdict does not find that these costs were unpaid.
If depreciation in market value can ever be laid as cause of legal damages on a bond in error (which we greatly doubt), iu cannot be done in this case, because it is found by the special verdict that the property considerably increased in value pending the appeal. Deterioration by waste, &c., is a very different matter; but that is equally out of the question in this case, as no deterioration is shown. The defendants paid the taxes and insurance, and kept the property in repair. The principal question for consideration, therefore, is, whether the plaintiffs were entitled to recover the rents and profits, or damages for the use and detention, as it is otherwise called.
We have seen that even in ejectment it has at least been questioned by this court whether the bond in error covers rents and profits accruing pending the writ. And yet there is a material difference between the case of ejectment and a suit for the foreclosure of a mortgage.
The difference is this : in ejectment the property of the land is in question, and if the plaintiff has the right, he is entitled to immediate possession and to the perception of the rents and profits, which belong to him, and for which the defendant in possession is accountable to him. Every dollar, or dollar's worth, is so much of the plaintiff's property of which he is deprived. And the same is true in dower. But in the case of a mortgage, the land is in the nature of a pledge; and it is only the land itself — the specific thing — which is pledged. The rents and profits are not pledged: they belong to the tenant in possession, whether the mortgagor or a third person claiming under him. This is not only the common law, but it is the express statute law of Nebraska, which declares that, " in the absence of stipulations to the contrary, the mortgagor retains the legal title and right of possession.” The plaintiff, in this