
    Henrietta C. Edgerton, and others, vs. George W. Muse and Elizabeth, his wife.
    The Court will exercise the right of correcting errors in its decrees in ex parte cases and cases by consent, so long as they remain unexecuted: and where, on a bill for partition, an order of sale was granted by consent of parties, in which by mistake, a slave belonging to one of the parties and not to the estate, was included in the property to be partitioned — before the sale was made, the Court on a petition for that purpose, corrected the error. [*52]
    The bill in this case was filed for partition of the estate of Otis Edger-ton, between the plaintiffs and defendants, his heirs at law. By consent of parties, a writ had issued for the partition of the estate, including a slave, named Frank. The Commissioners finding it impracticable to divide the estate, recommended a sale; and their return being confirmed, the Commissioner accordingly sold the whole estate, except Frank, as to whom the order was, on the *suggestion of the defendants, sus*52] pended. The defendants then filed a petition, setting forth that the slave, Frank, was originally the property of the petitioner, Elizabeth, before her intermarriage with Otis Edgerton: that during their coverture, a bill had been filed in their joint names for the recovery of the said slave, and a decree obtained in their favor, ordering him to be delivered up; but that Otis Edgerton dying shortly afterwards, the decree was not enforced in his lifetime by the delivery of the slave : that after her marriage with the defendant, hey present husband, Frank,, was delivered to them under the decree ; and ■ that they, in ignorance of their rights, had consented that he should be partitioned : that as the slave was not reduced into possession by the intestate, he constitutes no part of his estate, and their consent being given under a mistake as to their rights, they pray that the proceedings in partition be amended, by striking out the name of the slave Frank. ,
    On the hearing of the petition before Chancellor Johnston, at Barn-well, February, 1834, he held that the petitioners were precluded by the former judgment of the Court, which he had no power to alter. On appeal from his decision, the following decree was pronounced by—
   O’Neald, J.

In this case, it seems to me that the only question which we are called upon to decide, is whether the decree of confirmation of the return of the Commissioners in partition precluded the defendants from rectifying the mistake in fact, as to the slave Frank.

I think that there is a material difference between decrees by consent and of course, and those which are pronounced in inviium. The latter, it has been held in this State, are not the subject of re-hearing, and can only be reviewed upon new matter discovered since the decree, and of which the party 'applying for the review could not have the benefit in the first instance, and which newly discovered matter makes a new case, and one proper for Equity jurisdiction. Perkins v. Lang, 1 M’C. C. 30, note.

In the case of Jenkins ads. Harrison, and Price v. Nesbitt, 1 Hill, Ch. 445, it has been held, that as long as anything remained to be done by the Court in a cause, that the previous decrees of the Court wore not final, and that an appeal from the last decree closing the case, would open all previous decrees, and bring up the whole case for *adjudication. I should be inclined to think, under this rule, that if this L were a decree in invitum, that it is possible its errors might uow be corrected. For the slave (the subject of the dispute) has not been sold; but the decree of sale has been suspended by the Court. Be this, however, as it may, I think the Court must exercise the right of correcting its decrees in ex parte cases and cases by consent, so long as they remain unexecuted. For although they purport to be the act of the Court, and as such, have legal effect, yet, in point of fact, they are the mere act of the parties. Neither the facts nor the law can be said to be judicially ascertained in such a proceeding. The only restriction upon the exercise of this power ought to be the execution of the decree. It is then that the decree ought to be regarded as final, and to be an estoppel between all parties and privies. It then has the force of a judgment, by either vesting or divesting rights; and also by operating as authority to officers of the Court acting under it, and as title to purchasers who may buy under it. This restriction guards the power against all possible abuse. ■ The power of correcting errors in such decrees, so long as they remain unexecuted, can prejudice no one : it does not require a new examination of testimony, for in such cases, most generally, no testimony is originally heard; there can, therefore, be no danger of perjury in this respect— it does not re-examine and defeat any established title, for the consent of the parties to the decree is all the evidence of title to which the Court has looked; and the parties are placed in no worse situation by it, for the consent must operate against the party who gives it, until he shows that it was given by mistake, and establishes a perfect title to relief..

Patterson, for the appellant.

It is ordered and decreed, that Chancellor Johnston’s decree be reversed, and that the petition of the defendants be remanded to the Circuit Court for an examination of the facts stated in it, and for a decree upon the same.

Johnson, J., concurred.

Harper, J., absent.  