17 W. Va. 649 | W. Va. | 1881
announced the opinion of the Court.
This cause was once before in this court, and the decrees therein were reversed and the cause remanded. 11 W. Va. 122. It was remanded with instructions to the circuit court, “ if it were asked so to do, to provide for the debts charged on the real estate in the bill and proceedings in this cause mentioned out of the rents and profit of the said real estate, if adequate thereto in a reasonable time,” and if not, a sale should be decreed. No attempt was made by exceptions to the commissioner’s report auditing the debts dr otherwise to change the status of the case from what it was, when in this court the first time, except upon the record as it then stood to ask a rental of the real estate instead of a sale ¿hereof. The decree of November 20, 1877, shows, that the cause was heard upon the papers formerly read, and the mandate of the Supreme Court of Appeals, &c., and there being no exception to the report of the commission theretofore filed, auditing the liens, the said report was again confirmed, and then follows this language : “ and the court being of opinion that the debts audited and reported in said commissioner’s report are a proper charge upon the real estate in the bill and proceedings mentioned, and the defendants not assenting to this decree, but appearing and asking this Court, that the said real estate be rented
The proper construction of this decree is, that as so much thereof as decreed, “ that the debts audited and reported in said commissioner’s report are a proper charge upon the real estate in the bill and proceedings mentioned,” the defendants did not consent ■ thereto, but as to so much thereof as decreed, that the property should be rented instead of sold, it was consented to by both parties. It was “ asked to be done” by the defendants, and the complainants “ assented - thereto.” This portion of the decree was then certainly aconsent decree. The court took it as such, and acted upon it without looking into the record upon this question. The complainants had agreed, that the debts charged- upon the real estate should be paid by a rental of the property and not by a sale thereof. And the consent decree having been made, and the term having passed without it being set aside, there is no way to avoid it in this suit. It could only be avoided in an independent suit brought for the purpose of setting it aside on the ground of fraud or mistake.
After the termination of the term, at which a consent decree was entered, it can never be set aside, except by consent, by any proceedings in the cause, though it had been entered by mistake or by the fraud of one of the parties. Manion v. Fahy, 11 W. Va. 482. There is however in this record not thé slightest evidence of any fraud" or mistake having been committed as to the entering of the said decree.
As to whether the report of the commissioner, who under the decree rented the property, should have been confirmed, we express no opinion, as the time for which the property was rented has expired. There is no error in the
The decree of November 20,1877, is for the foregoing reasons affirmed. That decree directs the commissioner to '‘Tent the real estate,” &c., but does not direct, whether it shall be rented as a whole or in parcels. Where a decree directs, real property to be sold or rented without directing whether it shall be offered as a whole or in parcels, the commissioner must in the interest of the parties to the suit in his discretion offer it for sale or rental in that manner, which will in his judgment bring the most money. The commissioner should so act in executing the decree of November 20,1877.
The decree of April 26, 1878, is reversed with costs to the appellant, and this case is remanded for further proceedings to be had thereon, according to the principles of this opinion and further, according to the rules governing courts of equity.
One Decree Affirmed. The Other Reversed.
Cause Remanded.
