Wetmore v. Winans

The 197th rule authorizes a reference to a vice chancellor, with his assent, whether the suit or proceeding is before the chancellor or a vice chancellor. He may, therefore, execute the order of reference, if he thinks proper to do so, although the suit or proceeding in which such order is entered is pending before himself. In such cases, where there is no written stipulation between the parties dispensing with the Usual forms of proceeding, the reference is to be executed in the usual way; and the report is to be confirmed as in other cases, before any further proceedings can be had thereon, if it is a report which by the ordinary practice of the court requires confirmation. Exceptions may also be taken to such report, although the *372vice chancellor, upon such exceptions, will have to review his own decision, made while acting as a master. I see nothing objectionable, however, in this course, as it will only be in the nature of a rehearing, which is very common in the court of chancery. And if any of the parties are dissatisfied with the final decision of the vice chancellor upon the subject of the exceptions, they will have their remedy bappeal from such decision. The question therefore arises in this case upon the construction and effect of the written stipulation between the parties therein, signed by their respective solicitors. And upon a careful examination of the language of that stipulation, I think the vice chancellor was right in supposing that the complainants’ solicitor was authorized to enter this final decree immediately upon the filing of the report 5 without waiting the eight days to give the adverse parties an opportunity to except to such report. If the parties intended to reserve the usual right to except to the report, they should have stipulated that the decree might be entered, in conformity therewith, upon the filing and confirmation of the report.

Although the defendant, T. E. Winans, and his solicitor both swear that it was not intended by the stipulation to Waive the right to except, such is not the legal costruction of the written instrument. And if they have made a slip, by which the defendants have been deprived of the privilege of keeping possession of a part of the mortgaged premises for one or two years longer, without paying any part of the mortgage money which had already becomdue, I cannot say the vice chancellor, in the exercise of a sound discretion, ought to have opened the decree for the purpose of restoring to the defendants this technical advantage which they had lost. I think the affidavits., in connection with the evidence on the reference,, show that the complainants are bound by their stipulation to bid, upon the sale of the premises entire, more than the whole lot is really worth; and that the object of the defendants is to retain possession of a part of the premises, and receive the profits thereof, without paying the present or future instal*373ments of the complainants’ debt. The correctness of the vice chancellor’s decision upon the matter of the reference is not properly before me upon this appeal, except so far as may be necessary to see whether any very great injustice will probably be done to the defendants by holding them strictly to the terms of their written stipulation. I therefore express no opinion upon the question, whether the report was right or wrong upon the point in controversy on the reference.

The order appealed from must be affirmed with costs, to be paid by the appellants ; and the proceedings are remitted to the vice chancellor.