BAKER v. LEHMAN, ET AL., 1 Ohio Ch. 522

Wright J. The statute (29 O. L. 90) allows appeals from ‘any final sentence or decree made in any cause in Chancery.’ This language would hardly have been employed unless the general assembly contemplated an appeal from something other than the last or concluding order or decree in the cause.

If we suppose the word sentence, which more appropriately belongs to an admiralty or a criminal court than to chancery, was inadvertently used instead of the usual term order, which is used in chancery proceedings, and give to it the same signification we should give to the term order, and we do not know what other meaning to give it, there will be little difficulty in construing the statute. That is, a final decree which determines the merits or principles of the cause.

The Supreme Court of the United States in 3 Granch 179, determined that a decree for a sale under a mortgage, was such a final decree as might be appealed from. The act of congress allows appeals only from ‘a final judgment or decree.’ We hold a decree or order final, and within the legislative provision allowing an' appeal, which is conclusive as to the subject, or object of it — which determines the rights of the parties as to that matter. Such we understood to have been the uniform construction of this court. .

The deeree before us is filial as to the complainant’s right to charge the mortgaged premises with his debt, and to foreclose the mortgager and other parties of all their equities in favor of the purchaser. After the sale, if one take place, nothing more is requisite, than for the chancellor to examine the proceedings of the master, confirm them, if found regular, and order- the proper application of the proceeds.

An appeal after the sale, would leave the decree determining the right to sell, the main matter in controversy, in full operation, untouched: (1 O. i2. 271; 3 O. ¿2. 448.) The motion to quash is overruled. The ease afterwards came to hearing on'the pleadings and argument. The execution of the mortgage to secure a sum of money in instalments was admitted, and it was also admitted, that all the instalments secured by the mortgage were not yet due. N. Wright, contra. Lane, J.

The right of the complainant to a decree, must depend upon the assent of the parties, the condition of the mortgage, upon which the conveyance was to become absolute, and its construction. The condition here is, that if the mortgager shall pay said money according to the stipulations of the contract, the deed shall be void.

It is conceded, he has failed to pay, yet he contends the court shall declare the contract inoperative, until he has failed in further compliance, and construe his contract to be, to make the deed void, if he pay at any time, instead of construing it accoi’ding to its plain terms, to make it void, if he comply with the' condition stipulated. It is the contract made that we are to enforce; we are not to make a new one for the parties. By paying what is now due, the proceeding may be stayed, otherwise the right to sell remains.

The proceedings in New York under the statute of that state, shed no light upon our path. Nor does the repealed statute of Ohio, which allowed a sci. fa. after all the money fell due; that statute gave to the mortgagee a cumulative remedy on a mortgage. It never took away the right to proceed in equity. Sale ordered, and cause continued for report.