Mr. Justice Shepard
delivered the opinion oe the Court.
It is apparent, we think, from the decree of Judge Tuley, that there were no other agreements of submission to him than such as are recited in his decree, and we can not, therefore, properly consider the paper that is certified to us and called a supplemental record.
The decree, therefore, with the agreements therein set forth, will be treated by us as constituting the entire record before us.
It is next urged with much persuasiveness that the decree must be reversed because the agreements set out therein were not “ entered of record,” as said in the statute, and that their failure “ to be entered of record” goes to the jurisdiction óf the judge to hear and determine the matters so attempted to be submitted.
There is not a great deal of room for argument upon that question. It is purely a matter of construction, if, either read alone or in connection with other provisions of the act, it is uncertain whether, used parenthetically, as they are, the words, “ to be entered of record,” are jurisdictional words, or words merely of direction.
TJpon their first reading an impression is created that they are jurisdictional, but upon a more attentive consideration of them in connection with the last clause of section 1 of the act, and considering them, as expressed, in the form of a parenthesis to the substance of the clause in which they occur, it would seem as though the whole purpose of the words was to express to the clerk of the court in which the substantive written agreement was filed, authority or direction to enter that agreement of record.
The last clause referred to of section 1, is, that Avhen the agreement shall be signed by the parties, not when it shall be signed and entered of record, it “ shall be of binding force upon the parties thereto in all the courts of this State.”
The duty of recording papers filed in court does not attach to the judge, but to the clerk under the direction of the judge or the direction of the law, and the judge, or the court, can not be deprived of jurisdiction by the failure of the clerk to perform his duty.
And such duty failed in or neglected for a time, might be fulfilled by a later compliance. It being, therefore, the duty of the clerk to enter the agreement of record (not a jurisdictional, but a clerical act or duty), we think it was sufficiently complied with when the agreement was spread of record, although for the first and only time, as a part of the decree.
The second paragraph of section 1 of the act in question requires that the decree shall contain a statement as to what matters in controversy were submitted, and-that such statement thereof shall be conclusive. Such a statement may well consist of a full recital and setting forth in the decree of the agreements, in terms, as was here done.
The jurisdiction, then, of the judge being lawfully acquired as to all matters submitted to him, the more serious question arises as to whether the decree, which gives to Bessie McLeod Sturges the benefit of money found by the decree to be due from the appellant to William Sturges, can be sustained.
The agreement of submission, dated May 23, 1892, as set forth in the decree, is signed by John Y. Farwell, Charles B. Farwell, Abner Taylor, The Capitol Freehold Land and Investment Company, of the one part, and by William Sturges, of the other part. Bessie McLeod Sturges did not sign that agreement and is not mentioned in it except to reserve from its operation and effect the matters at issue between herself and John Y. Farwell in a certain cause pending in the Federal Court.
The subsequent agreement, dated September, 1893, between Bessie McLeod Sturges and John Y. Farwell, concerning the dismissal of her suit then pending in Michigan, and subjecting the matters there in controversy to the adjudication of Judge Tuley along with the matters included in the agreement of May 23,1892, was signed by Bessie McLeod Sturges, but was not signed by, and did not purport to be made by, or with, the appellant, Charles B. Farwell, and, of itself, was not in pursuance of the form prescribed by the statute.
Nevertheless, and notwithstanding the appellant, Charles B. Farwell, never united with Bessie McLeod Sturges in a submission of matters in controversy, if any there be between him and her, he, together with John Y. Farwell and Abner Taylor, was decreed to pay to her the sum of $75,000 with interest, and it is because thereof that he complains.
Now, if that sum of money had been decreed to be paid to William Sturges, or, in other words, if the decree had confined itself to an adjudication between the parties, by name, who signed the submission agreement, we apprehend no fault of lack of jurisdiction would have been urged against the decree.
In considering the question we must determine what the nature of the proceeding was. That matters which, under our system, are cognizable either at law or in equity, as the case may be, were meant by the statute to be susceptible of submission, is, we think, apparent from the language used.
“ A judgment (at law), or decree ” (in equity), are words that are repeated so often, and in such connection, and always together in the statute, as to repel all presumption of their being naked words of arbitration, and conclusively to demonstrate that the proceeding was intended to be one controlled by either legal or equitable rules and principles as the facts should warrant.
Looking, then, at the decree, it is apparent that the matters involved were peculiarly subjects of equitable determination.
The question then is, whether moneys found to be equitably due from one to another of the parties to the proceeding may be ordered, in a suit in equity, to be paid to one who is not a party to the suit, but who, as between herself and the party to whom the money is found to be due, is equitably entitled to it.
The decree reads:
“ That under the circumstances, in equity and good conscience, said- (William) Sturges is entitled to receive from said syndicate, for the use of his wife, the said Bessie McLeod Sturges, the value of said one-quarter interest over and above the obligations due from said (William) Sturges to said Farwell. * * * The court further finds that said (William) Sturges’ one-quarter interest was then worth, over and above the said debts due from said (William) Sturges to said Farwell, the sum of $75,000, and that said syndicate should account for and pay the said Bessie McLeod Sturges the said sum of $75,000. * * * It is therefore adjudged and decreed that the said John V. Farwell, Charles B. Farwell and Abner Taylor pay to the said Bessie McLeod Sturges, within ninety days from the entry of this decree, the sum of $75,000, with interest,” etc.
What the “circumstances” were which furnished the basis for the finding by Judge Tuley that “in equity and good conscience ” William Sturges was entitled to receive anything for the use of Bessie McLeod Sturges, is not shown, and under the statute would not be a matter for review, if shown.
We are concerned only with whether, upon such a finding, Judge Tuley had the power to order the money paid to Mrs.
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Mr. Justice Shepard
delivered the opinion oe the Court.
It is apparent, we think, from the decree of Judge Tuley, that there were no other agreements of submission to him than such as are recited in his decree, and we can not, therefore, properly consider the paper that is certified to us and called a supplemental record.
The decree, therefore, with the agreements therein set forth, will be treated by us as constituting the entire record before us.
It is next urged with much persuasiveness that the decree must be reversed because the agreements set out therein were not “ entered of record,” as said in the statute, and that their failure “ to be entered of record” goes to the jurisdiction óf the judge to hear and determine the matters so attempted to be submitted.
There is not a great deal of room for argument upon that question. It is purely a matter of construction, if, either read alone or in connection with other provisions of the act, it is uncertain whether, used parenthetically, as they are, the words, “ to be entered of record,” are jurisdictional words, or words merely of direction.
TJpon their first reading an impression is created that they are jurisdictional, but upon a more attentive consideration of them in connection with the last clause of section 1 of the act, and considering them, as expressed, in the form of a parenthesis to the substance of the clause in which they occur, it would seem as though the whole purpose of the words was to express to the clerk of the court in which the substantive written agreement was filed, authority or direction to enter that agreement of record.
The last clause referred to of section 1, is, that Avhen the agreement shall be signed by the parties, not when it shall be signed and entered of record, it “ shall be of binding force upon the parties thereto in all the courts of this State.”
The duty of recording papers filed in court does not attach to the judge, but to the clerk under the direction of the judge or the direction of the law, and the judge, or the court, can not be deprived of jurisdiction by the failure of the clerk to perform his duty.
And such duty failed in or neglected for a time, might be fulfilled by a later compliance. It being, therefore, the duty of the clerk to enter the agreement of record (not a jurisdictional, but a clerical act or duty), we think it was sufficiently complied with when the agreement was spread of record, although for the first and only time, as a part of the decree.
The second paragraph of section 1 of the act in question requires that the decree shall contain a statement as to what matters in controversy were submitted, and-that such statement thereof shall be conclusive. Such a statement may well consist of a full recital and setting forth in the decree of the agreements, in terms, as was here done.
The jurisdiction, then, of the judge being lawfully acquired as to all matters submitted to him, the more serious question arises as to whether the decree, which gives to Bessie McLeod Sturges the benefit of money found by the decree to be due from the appellant to William Sturges, can be sustained.
The agreement of submission, dated May 23, 1892, as set forth in the decree, is signed by John Y. Farwell, Charles B. Farwell, Abner Taylor, The Capitol Freehold Land and Investment Company, of the one part, and by William Sturges, of the other part. Bessie McLeod Sturges did not sign that agreement and is not mentioned in it except to reserve from its operation and effect the matters at issue between herself and John Y. Farwell in a certain cause pending in the Federal Court.
The subsequent agreement, dated September, 1893, between Bessie McLeod Sturges and John Y. Farwell, concerning the dismissal of her suit then pending in Michigan, and subjecting the matters there in controversy to the adjudication of Judge Tuley along with the matters included in the agreement of May 23,1892, was signed by Bessie McLeod Sturges, but was not signed by, and did not purport to be made by, or with, the appellant, Charles B. Farwell, and, of itself, was not in pursuance of the form prescribed by the statute.
Nevertheless, and notwithstanding the appellant, Charles B. Farwell, never united with Bessie McLeod Sturges in a submission of matters in controversy, if any there be between him and her, he, together with John Y. Farwell and Abner Taylor, was decreed to pay to her the sum of $75,000 with interest, and it is because thereof that he complains.
Now, if that sum of money had been decreed to be paid to William Sturges, or, in other words, if the decree had confined itself to an adjudication between the parties, by name, who signed the submission agreement, we apprehend no fault of lack of jurisdiction would have been urged against the decree.
In considering the question we must determine what the nature of the proceeding was. That matters which, under our system, are cognizable either at law or in equity, as the case may be, were meant by the statute to be susceptible of submission, is, we think, apparent from the language used.
“ A judgment (at law), or decree ” (in equity), are words that are repeated so often, and in such connection, and always together in the statute, as to repel all presumption of their being naked words of arbitration, and conclusively to demonstrate that the proceeding was intended to be one controlled by either legal or equitable rules and principles as the facts should warrant.
Looking, then, at the decree, it is apparent that the matters involved were peculiarly subjects of equitable determination.
The question then is, whether moneys found to be equitably due from one to another of the parties to the proceeding may be ordered, in a suit in equity, to be paid to one who is not a party to the suit, but who, as between herself and the party to whom the money is found to be due, is equitably entitled to it.
The decree reads:
“ That under the circumstances, in equity and good conscience, said- (William) Sturges is entitled to receive from said syndicate, for the use of his wife, the said Bessie McLeod Sturges, the value of said one-quarter interest over and above the obligations due from said (William) Sturges to said Farwell. * * * The court further finds that said (William) Sturges’ one-quarter interest was then worth, over and above the said debts due from said (William) Sturges to said Farwell, the sum of $75,000, and that said syndicate should account for and pay the said Bessie McLeod Sturges the said sum of $75,000. * * * It is therefore adjudged and decreed that the said John V. Farwell, Charles B. Farwell and Abner Taylor pay to the said Bessie McLeod Sturges, within ninety days from the entry of this decree, the sum of $75,000, with interest,” etc.
What the “circumstances” were which furnished the basis for the finding by Judge Tuley that “in equity and good conscience ” William Sturges was entitled to receive anything for the use of Bessie McLeod Sturges, is not shown, and under the statute would not be a matter for review, if shown.
We are concerned only with whether, upon such a finding, Judge Tuley had the power to order the money paid to Mrs. Sturges.
It is not uncommon in equity to order money that is found to be due from one party to another to be paid to a third person who is not a party to the suit.
Take for instance the cases of receivers, sheriffs, intervening petitioners and beneficial usees generally.
The rules of practice in equity in the Circuit Courts of the United States provide that “ Every person not being a party in any cause who has obtained an order, or in whose favor an order shall have been made, shall be enabled to enforce obedience to such order by the same process as if he were a party to the cause; and every person not being a party in any cause against whom obedience to any order of the court may be enforced, shall be liable to the same process for enforcing obedience to such order as if he were a party in the cause.” 2 Beach on Modern Eq. Pr., 1075, rule 10.
We cite this rule not as authority but to show the practice.
In Grant v. Baronis, 97 Cal. 496, it is said:
“ In an action for specific performance of an agreement to convey land, a court of equity has power, by its decree, as against the parties who are before it, to enforce all the terms of the agreement. If the vendor’s agreement is that his conveyance shall transfer the title free of incumbrances, the court can direct the application of the purchase money to the satisfaction of those incumbrances, and for that purpose can cause the money to be brought into court and disbursed under its direction. If the holders of those incumbrances are before the court, they will be bound by the direction of the court, and their claims would be satisfied by a satisfaction of the judgment.
“ If the amount of the incumbrances is ascertained, and the court finds that the liens therefor can be discharged by mere payment thereof, it can direct that the payment be made directly to the holders of the incumbrances even though they be not before the court, instead of to the vendor. So long as the vendor incurs no liability, and is freed from any personal Claim for the amount of the incumbrances, he will not be heard to object to the application of the purchase money for the purpose of making good his agreement with the vendee.”
The same principles are frequently alluded to in cases where the question has arisen of who may avail themselves of error in a decree that directs money or property to be paid or delivered to persons who are neither parties nor privies. Freeman on Judgments (2d Ed;), Sec. 174; Ransom v. Henderson, 114 Ill. 528; Farnam v. Borders, 119 Ill. 226; Phenix Mut. L. Ins. Co. v. Batchen, 6 Ill. App. 621.
As between the appellant and William Sturges, the ob- . jection to this decree would have no standing. It would be final and binding upon both parties. It would measure the extent of appellant’s obligation to William Sturges, and its payment would effectually and forever discharge appellant. Although the decree wherein it directs the money to be paid to Mrs. Sturges would have been more professionally artistic in form if it had followed the finding and made the money payable to William Sturges for her use, that inadvertence or omission is one that reaches the form alone.
In substance that is what it is. The whole decree makes it plain. Ho possible injury from such an omission in form . can ensue to the appellant.
The decree binds William Sturges as a party to the submission; it binds Bessie McLeod Sturges if she accepts it, and it protects the appellant against them both from any further claim against him; and if, as has been suggested, the
i appellant has claims against her personally, it would seem such might yet be set off against this decree.
The great importance of' the questions presented by this record, and because they are new, is a sufficient excuse for embodying the whole record along with our imperfect reasons.
The decree of Judge Tuley is affirmed.