38 Ky. 12 | Ky. Ct. App. | 1839
delivered the Opinion of the Court.
Wi are not clear that the Circuit Court was right in the construction which it gave to the deed of trust. But waiving this, the decree with the reservation on its face, to change or modify it at a subsequent term, can only-be deemed final as to the order of sale. As to that, as ^ must ta^ce P^ace before the succeeding term, it must be regarded as final. As to all the other matters directed, it was still in the power of the Court, as a suit depend-ing,anc*- subject to be altered or changed in all its features at the pleasure of the Court. As a case depending and m progress, it was competent lor the parties, “by their counsel” to agree upon the terms of the decree, and division 0f the proceeds, and their agreement entered on record, is binding upon their clients. Tlie commissioner made sale of the trust property, settled the accounts, and estimated the amount to which
And we cannot perceive how it can stand, and the decree for a sale be set aside. If it stands, it concludes the whole controversy, and must be regarded as waiving or releasing any error which would tend to its impeachment or overthrow. And, though the words “by consent” are not repeated immediately before the decretal order, directing the commissioner to collect and distribute the proceeds, yet that order is connected, by the copulative conjunction and, to the previous part of the sentence, which was made by consent, and it might well be contended that the consent applied to and controlled the whole sentence, as well the subsequent, as prior parts. But if not, the, latter part of the decretal order, followed, and was the necessary consequence of the previous part. It was necessary only to carry out that which had been decreed by consent.'
It is, therefore, the opinion of thé Court, that the plea of release or settlement put in by the defendant in error, be sustained, and the plaintiff be barred of his writ of error herein.