84 N.C. 532
N.C.
1881
Ashe, J.

The two cases were considered together in the court below and were discussed in this court as one case, and we will so continue to treat them.

The record of the proceedings of the petition in the court of equity has been ascertained and established by the report of the commissioner appointed by the superior court of Buncombe for that purpose, and it appears from the record that that suit had been finally disposed of and put off the docket. The record as set forth by the commissioner states, it was ordered, adjudged and decreed that the clerk and master make and deliver to Robert H. Chapman, Junior, a good and sufficient deed in fee simple for the land purchased by *539 him as aforesaid, and that the guardian pay the costs of the proceeding into court and the cause be not further continued on the docket. This was a final determination of the cause, expressed in unmistakable language. But aside from the unambiguous terms in which the determination of the cause is expressed, where a decree decides the whole merits of a case without any reservation for further directions for the future judgment of the court, so that it will not be necessary to bring the case again before the court, that constitutes a final decree; and after it has been pronounced, the cause is at an end and no further hearing can be had. Bebee v. Russell, 19 How., 285; Adams Eq.. 388. In the case before us, there was nothing further to be done; there were no further questions or directions reserved for the future action of the court, and it was therefore ordered to be put off the docket and consigned to the shelves of finished business.

The fact being established that the decree in the equity suit was final, it follows that the remed}7 adopted to set it aside by a petition in that cause cannot be sustained. It can only be set aside or impeached by a civil action commenced by summons and complaint. Eure v. Paxton, 80 N. C., 17; Thaxton v. Williamson, 72 N. C., 125; Covington v. Ingram, 64 N. C., 123.

The plaintiffs however say they have prepared for a failure in this particular, by their other action pending in the same court (and considered with this) which is a civil action commenced by summons and complaint. The ground assigned for relief in that case is that the purchase money has never been paid, that the guardian took the note of the purchaser, Chapman, payable to him as guardian in lieu of the notes given to the master, without any authority so to do, and that the original notes were surrendered to the purchaser and a title to the land made to him by the master, without any order of the court authorizing him to make title.

*540 Upon the state of facts set forth in the plaintiffs’ complaint, it being made to appear that the suit in equity had not been determined but was still pending, His Honor dismissed the action on the ground that plaintiffs’ remedy was by motion in the original cause. This would have made it unnecessary to give further consideration to the case, but for the fact that the other case^when the motion was made in the original suit in equity, was considered in connection with this, as constituting one case; and but for the further fact that the record of the proceedings in the equity suit was established in that case, and the fact is made to appear that there was a final decree in that cause. This independent action must then be viewed as an action in nature of a bill of review to impeach the decree in that case. The only two grounds upon which a bill of review will be enter tained under the former equity practice, were, first, for some error apparent on the face of the decree; and secondly, for new matter since discovered. Simms v. Thompson, 1 Dev. Eq., 197. Treating this as an action in nature of a bill of review, it cannot be sustained, for it alleges no error on the face of the decree, nor does it disclose any newly discovered facts, and might therefore have been properly dismissed on that ground.

But stripping the cases of all. technicalities aud considering them on their merits, they are found to be different from any case that has been cited on either side of the question.

Unquestionably; when a decree is made by a court of competent jurisdiction for the sale of real estate, the court having cognizance of the ease brings the land, as it were, in custodia legis and continues to hold control over it until the final disposition of the cause by the payment of the purchase money and execution of the deed to the purchaser by the regular order of the court. Lord v. Beard and Merony, 79 N. C., 5 and 14. The principle decided in these cases and others we might cite, is, that the court takes and *541 holds control over the land sold under its decree, as a seen-rity for the purchase money. After payment of the purchase money; an order to make title is not necessary, and a deed made without such an order passes the title. “The withholding the title after a sale has been confirmed can have no other object than to secure the purchase money, and when that is paid, the purchaser in the absence of special circumstances has an absolute right to a conveyance of the legal estate.” Brown v. Coble, 76 N. C., 391. The withholding the title until the purchase money is paid is a matter lying in the discretionary powers of the courts and to be exercised by them for the benefit of the parties before them, especially where they are infants- — the courts in their equitable jurisdiction being the general guardian of infants. They have control over the whole matter — the subject of the action as well as the persons of the parties — and must have the power to order an exchange of notes and decide how and in what manner payments should be made, and to order a title to be made, though there was no other payment than an exchange of notes, intended as a payment and so regarded by the court; and the purchaser would get a good title.

In our case there was no pretence of fraud or imposition. The transaction in regard to the exchange of notes was made at the instance of the guardian and was supposed by him as well as by the court to be an arrangement for the benefit of the infants. If the money had been paid into the office, the guardian would have received it and loaned it out at once to some one upon good security. He was willing the purchaser should have the money who offered good security. Where was the use of paying it to the clerk and master and the guardian receipting for it and. paying it back to the purchaser? This arrangement was made by the express authority and sanction of the court as protecting the interests of the infants, and it was evidently in *542 tended the new notes should be in satisfaction of those originally given.

This case is dintinguished from Singeltary v. Whitaker, Phil. Eq., 77, and Lord’s cases, supra, for in those cases there was no order to make title, but in this case there was an order that title should be made. It was made. It passed the legal title, which the defendants now hold was purchased for value and without notice of any defect in the title. The plaintiffs have lost the proceeds of the sale, and their redress if they have any is against their guardian. They have no equity against the defendants.

Both proceedings, the petition and action, must be dis» missed at the costs of the plaintiffs.

Error. ■ Dismissed.