WAITE, C. J.

This is a suit in equity begun on the first of August, 1882, by Elmira P. Tufts, then in life, against Elbridge Tufts, her son, to set aside a deed executed by her to him, bearing date June 26, 1882, on the ground that it was obtained by fraud. The material averment in the complaint is that "defendant * * * promised the plaintiff, in the month of June, 1882, if she would execute an agreement, which he then, on or about said June 26, 1882, had drawn up and read to plaintiff, * * * that the defendant would build the plaintiff, at his own expense, a nice brick house upon his, said defendant's, lot of land, situated immediately east of and adjoining on the eastern portion of the above-described lot of land, which was owned by the plaintiff, * * * and give her a life-lease of the same to use to her own benefit, free from any and all expense to her during her natural life, said brick building to be commenced by defendant as soon as the plaintiff would sign said written agreement then drawn up by the defendant;" and that the deed was signed and executed under the belief, induced by the false and fraudulent statements of the defendant, that it was that agreement. At the hearing the court made, among others, the following finding of fact: "That at the time of the execution of said deed plaintiff did not know that it was a deed of her property in question, but believed it to be a life-lease of property belonging to the defendant, upon which she was agreeing to assist in building a house; that prior to the time of the execution of said deed there had been negotiations between the said plaintiff and the said defendant to the effect that the plaintiff should assist defendant with money to build a house upon lands of his own, and that the plaintiff should have a life-lease of the same; that after such negotiations had taken place she directed defendant to prepare the proper papers; that defendant, instead of preparing the papers directed by plaintiff, prepared a warranty deed of the land in question, and procured the signature of the plaintiff thereto; that the same was not read to the plaintiff, and she did not know the contents thereof; that there was no consideration for the same passed between the parties, and that the plaintiff signed the same under the belief that it was a paper relative to a life-lease to her of the said land of the defendant upon which said building was to be erected; that the signature of the plaintiff to the said deed was procured by the fraud of the defendant; that the defendant never has attempted to build any such house as was contemplated by the agreement for the life-lease." Upon this finding a decree was entered, declaring the deed null and void, and directing the defendant to reconvey to the plaintiff. From that decree this appeal was taken.

The objection now urged to the decree is, not that it is wrong upon the facts found, but that the findings make a different case from that alleged in the complaint. To this we cannot agree. The suit was brought to set aside the deed because it was executed in the belief, caused by the false and fraudulent statements of the defendant, that it was an agreement under which the plaintiff was to have a life-lease of property belonging to the defendant, and not a deed conveying her own property absolutely in fee to him. That is substantially the finding of the court, and, in a suit in equity for relief on the ground of fraud, it is enough if the facts found are not materially and substantially different from those alleged in the bill. The decree is affirmed.

DAVIS, Adm'r, etc., v. KEY, Ex'x, etc.

(October 31, 1887.)

PARTNERSHIP-DISSOLUTION BY CONDduct.

In a suit for an accounting, under articles of partnership, brought by the administrator of one of the parties against the executrix of the other, it appeared that the partnership was to continue for a certain time, unless dissolved by mutual consent; and that the complainant's intestate had never complied with the terms of

the agreement, but, shortly after its execution, had accepted a public office in a distant city, and absented himself, in the discharge of the duties thereof, until after the date of the expiration of the agreement, and on his return had made no attempt to enforce the same; and that a written agreement, executed by the parties to the articles of partnership shortly before the death of the complainant's intestate, was inconsistent with any claim thereunder. Held, the evidence showed that complainant's intestate regarded the agreement as never having gone into effect, or as having been canceled, and that the bill was properly dismissed.

Appeal from the Supreme Court of the District of Columbia.

H. E. Davis, for appellant. John Paul Jones and Heber J May, for appellee.

BLATCHFORD, J. This is a suit in equity brought in the supreme court of the District of Columbia, in April, 1881, by Henry E. Davis, administrator de bonis non of Philip B. Fouke, deceased, against John J. Key. The object of the bill is to obtain an accounting from Key as to transactions between him and Fouke under an alleged partnership between them, entered into by a written agreement made September 24, 1869.

On the tenth of August, 1869, Key and Fouke, with one Hays and one De Castro, entered into a written agreement of copartnership, as follows: "Articles of copartnership entered into between John J. Key, of the city of Terre Haute, state of Indiana; Philip B. Fouke, now of the city of New Orleans, state of Louisiana; H. T. Hays and J. O. De Castro, both of the city of New Orleans, state of Louisiana.

"It is agreed between said parties that a copartnership is this day formed between them, for the purpose of prosecuting claims in behalf of the citizens of the United States of America against the government of Mexico, and of citizens of the government of Mexico against the government of the United States of America. It is agreed between said parties that the said Fouke, Hays, and De Castro shall procure claims of citizens of the respective governments named against the other, and attend to taking the necessary proof, and that the said claims shall be sent to said Key, at Washington city, accompanied with a power of attorney from the claimant authorizing said Key to prosecute said claims, and authorizing him to receive from said governments any and all amounts that may be due and coming to them; that said Key shall retain all fees, as agreed on by said parties, and shall pay over to said parties, acting in the capacity of special attorneys, for that purpose, of the claimant, the amount due to them as such special attorneys, both for the amount awarded the claimant, and for fees due Hays, Fouke, and De Castro in the case, either at Washington, New York, or New Orleans, as he may be directed from time to time by either Hays, Fouke, or De Castro, acting as the special agent of the claimant, whose power as such in all cases sent by them is, to all intents and purposes, recognized by the parties to this contract; that said Key shall retain, in all cases when no special direction is given, the portion due to said firm, paying over to the other parties at once, or accounting in such manner as they may from time to time direct, for the proportion of the fees so retained. It is agreed that all fees received under this copartnership shall be divided, one-half part to said Key, and the other half part to said Fouke, Hays, and De Castro. Said Key is to remain at Washington city, said Hays at New Orleans, said De Castro to be in the city of Mexico, and said Fouke is to render his services wherever they shall be needed.

"In witness whereof we have hereunto set our hands and seals this tenth day of August, 1869.

66
"JOHN J. KEY.

[Seal.]

"HARRY T. HAYS. [Seal.]

P. B. FOUKE.

[Seal.] J. O. DE CASTRO. [Seal.]"

On the twenty-fourth of September, 1869, Fouke and Key executed the ful

lowing agreement:

"Articles of copartnership entered into between Philip B. Fouke and John

J. Key.

"It is agreed between said parties that a partnership be this day formed between them for the purpose of practicing law in the city of Washington, District of Columbia, and that partnership shall be equal. It is agreed each party shall give their undivided attention to the business, and that said business embraces all matters pertaining to the profession of the law, including prosecution of claims against the government of the United States, either before congress or the court of claims. Neither party shall have the right to use the name of the firm except in such matters as pertain to the business of attorneys. It is understood and agreed that all sums received by said Key or Fouke under an agreement of partnership heretofore formed by said Key, Fouke, H. T. Hays, and J. O. De Castro shall be equally divided by said Fouke and Key. It is agreed that an account of expenses shall be kept between said parties pertaining to their business, (except that part in prosecuting claims under the treaty of July 4, 1868, between the United States and Mexico,) and all sums received by either partner from their business, and all sums retained by either party, shall be entered on a book kept for that purpose, and the same shall be subject to the control of both. It is agreed that this copartnership shall continue until the twenty-fourth day of September, 1871, unless dissolved by mutual

consent.

"In witness whereof we have, this twenty-fourth day of September, 1869, set our hands and seals. P. B. FOUKE. [Seal.] "JOHN J. KEY. [Seal.]"

The bill alleges that certain business was conducted by Fouke and Key pertaining to the profession of the law, and within the scope of the agreement of September 24, 1869, and that no accounting has been had in regard to it, although moneys were received by Key on account of it.

Two defenses are set up in the answer of Key: (1) That in April, 1870, Fouke accepted the appointment of public administrator for the parish of Orleans, in the state of Louisiana, and thereafter resided in New Orleans, and did not practice law in the city of Washington, and that the copartnership formed by the agreement of September 24, 1869, was dissolved by the mutual assent of the parties; (2) that, by a written instrument, dated November 5, 1875, executed by Fouke and Key, and by Hays and De Castro, and by the clients interested in claims successfully prosecuted under the copartnership articles of August 10, 1869, all matters between Fouke and Key in respect to such claims were settled and adjusted.

A replication was filed to the answer, and proofs were taken, and the cause was heard in the first instance by the general term. It dismissed the bill, and the plaintiff has appealed to this court.

It appears that Fouke never complied with the terms of the agreement of September 24, 1869. The copartnership was to continue until the twentyfourth of September, 1871, unless dissolved by mutual consent. From April 2, 1870, until after the latter date, Fouke remained in New Orleans, discharging the duties of the office of public administrator there, did not practice law in the city of Washington, and did not give his undivided attention to the business of the copartnership. He returned to Washington in 1872 or 1873, and died there October 3, 1876, without having attempted to enforce the agreement of September 24, 1869. The evidence satisfies us that he regarded that agreement as never having gone into effect, or as having been canceled. We are also of opinion that any claim under that agreement is inconsistent with the terms of the instrument of November 5, 1875, executed by Fouke and Key with other parties, so far as the matters covered by that instrument are concerned.

The decree of the court below is affirmed.

BURLINGTON, C. R. & N. RY. Co. v. SIMMONS, Trustee, and others.1 (October 24, 1887.)

APPEAL WHEN LIES-INTERLOCUTORY DECREE.

A junior mortgagee filed a bill, in a United States circuit court, against the mortgagor and a prior mortgagee, to foreclose his mortgage, and establish his right to redeem from the prior mortgage. The defense was that, by foreclosure of the prior mortgage, his right to redeem had been cut off, and the property sold free of his lien. The decree found that his right to redeem had not been cut off; that his mortgage was still a valid lien; that the purchaser at the foreclosure sale, and others, were entitled to redeem from the junior mortgage, by paying the amount due thereon, at a time to be fixed by a further decree; that, if there was no such redemption, the junior mortgage should be foreclosed, and a sale of the property "had, under a decree to be entered," etc.; that, if no one redeemed, the property be sold pursuant to such decree as might thereafter be entered, and the proceeds paid to the several parties as thereafter might be determined; and that the cause be referred to a master to find and report the amount to be paid by the parties making the redemption, and the amount due on both mortgages. The decree concluded: "This decree being interlocutory, it is ordered that said cause stand continued for further order and decree." Held, that the decree was not final, but interlocutory only, and that an appeal to the supreme court would not lie therefrom.

Appeal from the Circuit Court of the United States for the Southern District of Iowa, Central Division.

On motion to dismiss.

H. B. Turner and B. F. Lee, for the motion. T. F. Withrow, in opposition. WAITE, C. J. This is a motion to dismiss an appeal because the decree appealed from is not final, but interlocutory only The case is in substance this: A bill was filed by a junior mortgagee against the mortgagor and a prior mortgagee, to foreclose his mortgage, and to establish his right to redeem from the prior mortgage. The defense was that, under certain proceedings had for the foreclosure of the prior mortgage, his right to redeem had been cut off, and the mortgaged property sold free of his lien. The decree appealed from finds: (1) That the junior mortgage is still a valid and subsisting lien, and that the right of its trustee and beneficiaries to redeem had not been cut off by the proceedings for the foreclosure of the earlier mortgage. (2) That those claiming title under the sale upon the foreclosure of that mortgage, and certain other parties, are entitled to redeem the junior mortgage, “by paying off the amount due" thereon, "at such time as shall hereafter be fixed and determined by a further order or decree to be entered in this cause." (3) In case none of the parties claiming under the prior mortgage redeem the junior mortgage, and the junior mortgagee redeems the prior one, then that the junior mortgage shall be foreclosed, and a sale of the property "shall be had, under a decree to be entered by this court," and the proceeds shall be applied-First, "to paying off the amount paid to redeem from the first" mortgage; second, the amount found due on the second mortgage; and the balance, if any, paid to the mortgagor. (4) "In the event that none of these parties shall redeem from the others, * * then a sale" of the mortgaged property "shall be had, pursuant to such decree as may hereafter be entered herein, and from the proceeds shall be paid off-First, the amount which it may be hereafter determined is due on the first" mortgage; “second, * * *the amount which it may hereafter be determined is due on the second" mortgage; and, third, the balance, if any, to the mortgagor. It was then ordered that, "for the purpose of determining the amount necessary to be paid by any of the parties in making redemption, as herein provided, "the cause be referred to a master, "to find and report" the amount due on both the first and the second mortgages, in accordance with certain principles of accounting, which were specifically stated. The whole then concludes as follows: "This decree being 1 See 23 Fed. Rep. 849.

interlocutory, it is ordered that said cause stand continued for further order and decree." From this decree the appeal was taken. The case is reported as Simmons v. Taylor, 23 Fed. Rep. 849.

The rulings at the last term in Parsons v. Robinson, 122 U. S. 112, 7 Sup. Ct. Rep. 1153, are decisive of this motion. The right of the junior mortgagee to redeem the prior mortgage has been established by the decree appealed from, but the amount he must pay has not been determined. The validity of his lien as security for the amount due on his mortgage has been declared, but what that amount is has not been fixed. His right to a sale of the mortgaged property in case the debt is not paid has been settled, but such a sale cannot be made until a further order to that effect is entered. The litigation has not been ended; the terms of the redemption have not been fixed, and the foreclosure sale awaits the further judicial action of the court. In short, nothing can be done towards carrying the decree into effect until the "further order or decree" for which the cause was continued. This is shown more than once on the face of the decree, and consequently the decree is, in fact, what the court took care to say it was, "interlocutory" only, and not final, for the purposes of an appeal.

It is suggested in the brief of counsel for the appellant that the cases of Bank v. Shedd, 121 U. S. 74, 7 Sup. Ct. Rep. 807, and Parsons v. Robinson, supra, are in conflict; but this is a mistake. In Shedd's Case there was a decree of sale absolutely and without reserve, which could be carried into execution at once, and when a purchaser acquired title under it he would have held as against all the parties to the suit, no matter what might be the rulings on the other questions in the case which were reserved for further adjudication. The language of the decree, as shown at page 84, was to the effect "that the whole property be sold as an entirety, * * * and that, upon a confirmation of the sale, the purchaser be entitled to a conveyance freed and discharged of the lien of the mortgages, receiver's certificates, costs, expenses, etc. Such a decree was surely final, for the purposes of an appeal, within the rule as stated in Forgay v. Conrad, 6 How. 201, where it is said, at page 204: "When the decree decides the right to the property in contest, and directs it to be delivered up by the defendant to the complainant, or directs it to be sold, or directs the defendant to pay a certain sum of money to the complainant, and the complainant is entitled to have such a decree carried immediately into execution, the decree must be considered as a final one to that extent, and authorizes an appeal to this court, although so much of the bill is retained in the circuit court as is necessary for the purpose of adjusting by a further decree the accounts between the parties, pursuant to the decree passed." To the same effect are Ray v. Law, 3 Cranch, 179; Bronson v. Railroad Co., 2 Black, 524, 531; and Thomson v. Dean, 7 Wall. 342, in which last case it is said, (page 345:) "In this case the decree directs the performance of a specific act, and requires that it be done forthwith. The effect of the act, when done, is to invest the transferees with all the rights of ownership. It changes the property in the stock as absolutely and as completely as could be done by execution on a decree for sale. It looks to no future modification or change of the decree." If a sale had been made under the decree as it stood in Shedd's Case, "the title of the purchaser would not have been overthrown or invalidated, even by a reversal of the decree; and consequently the title of the defendants to the lands would have been extinguished, and their redress, upon the reversal, would have been of a different sort from that of a restitution of the land sold." Such was the language of this court, speaking through Mr. Justice STORY, in Whiting v. Bank, 13 Pet. 6, 15, in reference to the effect of a sale under a decree of foreclosure and sale, and there cannot be a doubt of its correctness. It was for this reason the decree in Shedd's Case was held to be final in the sense of a court of equity for the purpose of an appeal.

But in Parsons v. Robinson we held there was no decree of sale which