
    Ruff v. Starke’s Adm’x.
    July Term, 1846,
    Lewisburg:.
    (Absent BALDWIN,
      J.)
    
    Decrees — When Final. — A decree which settles all matters in dispute in the cause, but omits to decree upon a claim set up in the bill, but which aiter-circumstances had rendered unimportant, and the plaintiff did not insist upon, is a final decree.
    The executors of Jacob Ruff filed their bill in the late Chancery Court at Staunton against Levi Morris, in which they charged that their testator had given to his widow a negro girl for the life of the widow; that she had married again, and her husband Christian Varner, had sold the girl to Wyatt Starke, who had removed with her to the county of Kanawha, and there sold her to Morris; and they prayed that Morris might be compelled to give security for the return of the girl and her increase on the death of Mrs. Varner.
    *Starke’s adm’x was afterwards made a party in the cause; and the CourLaffirming the title of RufE’s ex’ors, and setting aside the contract between Starke and Morris, directed the slaves to be hired out by the marshal of the Court, to satisfy Morris for the damages he had sustained by the want of title in Starke.
    After the slaves had been hired out for some years, the Court made a decree directing John Ruff, a son of Jacob Ruff, and one of his legatees interested in these slaves', to bring them to the county of Rockbridge or Augusta, and there hire them out. John Ruff, being in possession of the slaves under this decree, made a contract with Starke’s a&m’x, whereby, in consideration of her surrender of her interest in the slaves,, he undertook to pay the amount still due to Morris, and the costs of the' suits; and he, at the same time, made an agreement with Morris, whereby he undertook to pay him; and obtained a release of all Morris’ claim upon the slaves, and the moneys due for their hires, which had not been paid over to him.
    Ruff having submitted the written evidence of these agreements to the Court, a decree was made on the 10th of June 1833, directing that Ruff should hold the slaves as his own, until the death of Mrs. Varner; and that the hires of the slaves not paid over to Morris should be transferred to him.
    On the 22d of November 1833, the Court made another decree, directing the marshal to pay over to Ruff the amount in his hands on account of the hires of the slaves, and directing Starke’s adm’x to paj*- to Jacob Ruff’s ex’ors, and to Morris, their costs. But the decree did not direct John Ruff to give security for the return of the slaves upon the termination of the life estate.
    In December 1839, the administratrix of Starke filed her bill in the Superior Court of Augusta county, to review the decrees of the 10th of June and the 22d of "'November 1833, for error on the face of the decrees. And she insisted that the true construction of the agreement of January 1833, was, that only her interest in her individual right in the slaves was conveyed to Ruff, and that she did not execute the agreement as administratrix of Starke. She alleged that Ruff had received a large sum from the hires of the slaves in the lifetime of Mrs. Varner, above what was neces'sary to satisfy the claim of Morris; and making John Ruff a party defendant, she prayed that said decrees might be reversed, and' that Ruff might be compelled to render an account of the hires of the slaves received by him up to the time of Mrs. Varner’s death; and that after satisfying the amount due on Morris’ claim, he might be compelled to pay over to her as the administratrix of Wyatt Starke the balance of said hires; after deducting therefrom the portion which would have been coming to herself; which she admitted passed by said agreement.
    Ruff demurred to the bill, but the Court overruled his demurrer. He then filed his answer, in which he controverted the construction of the agreement insisted on by the plaintiff; and relied upon the former-decrees in bar of the plaintiff’s claim, and also upon the statute limiting the time for filing bills of review to three j'ears.
    The cause came on to be heard finally in November 1840, when the Court being of opinion that Ruff, as the agent of the Court to hire out the slaves, stood in a fiduciary relation to the subject of the contract, and therefore the principles which forbid the purchase of a trust subject by the trustee, applied to his contract with Mrs. Starke, annulled the decree of the 10th of June 1833, so far as it related to that contract, and made a decree against Ruff for the sum of 460 dollars 24 cents, with interest on 366 dollar 34 cents, from the 18th of March 1836, and on 93 dollars 90 cents, from the date of the decree, that being the amount received . by him for the hires of the slaves in the lifetime of Mrs. Varner, *after fully satisfying the claim of Morris. From this decree, Ruff applied to this Court for an appeal, which was allowed.
    Cooke, for the appellant, and Stuart, for the appellee, submitted the case.
    
      
      He had been counsel in the cause.
    
    
      
      Decrees — When Final — When Interlocutory. — The principal case is cited in Core v. Strickler, 24 W. Va. 695, and Manion v. Fahy, 11 W. Va. 493. See also, extensive foot-notes to Fleming v. Bolling, 8 Gratt. 292, and Rogers v. Strother, 27 Gratt. 417, in which the principal case is cited on the Question of what is a final decree.
      See generally, monographic note on “Decrees” appended to Evans v. Spurgin, 11 Gratt. 615, for a full treatment of the subject of final decrees.
    
   ALLEN, J.,

delivered the opinion of the Court.

This Court is of opinion, that the decrees of June 10th, 1833, and November 22d, 1833, disposed of the subject of controversy, so far as the representatives of Wyatt Starke and Levi Morris were concerned; and no further action of the Court was necessary or contemplated in relation to their interests involved in the suit. The only subject left undisposed of by said decrees was the prayer of the plaintiffs in the original bill, for security that the slaves should be surrendered to them by the then holders thereof, on the death of the tenant for life. And as by the agreements between John Ruff, and the administratrix of Wyatt Starke and Levi Morris, and the effect of said decrees, their interests respectively, in said slaves, and the accruing hires, were transferred to, and vested in said Ruff; and he had taken possession of said slaves, the original plaintiffs, Jacob Ruff’s ex’ors, would have been entitled to security from said John Ruff for the surrender of the slaves on the death of the tenant for life. But as the slaves had been removed from the county of Kanawha to the county of Rockbridge, where the executors resided, and from which latter county the temale slave had been originally removed, and the said John Ruff was one of those entitled in remainder, these circumstances may have been deemed a sufficient reason for dispensing with the security prayed for in the original bill from strangers to the family, residing in a distant county and asserting an adverse claim to the slaves.

*The omission of the decrees to give such relief as the original bill prayed for, was therefore no doubt owing to the facts aforesaid. No such security was provided for or contemplated when said decrees were rendered, and the omission to give such relief did not the less render said decrees final. The error, if it existed, was one of which the said executors could alone complain, and they have acquiesced.

The Court is further of opinion, that as the bill of review in this case was not filed until the 1st December 1839, more than five years after the decree of 22d November 1833, the same should not then have been received; and the objections to the filing thereof taken by way of demurrer to the bill, plea of the former decree, and statute of limitations, should have been sustained. The Court is therefore of opinion, that the Court below erred in entertaining the bill of review; and in proceeding to review and reverse the decrees made on the 22d November 1833, or the 10th of June 1833, or either of them.

Decree reversed with costs, and the bill dismissed.  