
    MASSEY v. BARBEE.
    (Filed April 11, 1905).
    
      0onsent Judgment — Gonsiruction.
    1. A consent judgment providing that a basement hall shall be for the joint and common use and unobstructed enjoyment of the parties; that a space therein used as a stairway shall remain for their joint use and unobstructed enjoyment, and that said stairway shall be repaired at their joint expense and that said basement hall and stairway shall be used only for ingress and egress by the plaintiff, gives the plaintiff no right to use or occupy the closets under the stairway or its landing or to have any ehdnge made in the interior structure of the building so that light can be admitted through the windows to the stairway.
    2. The law will not inquire into the reason for making a consent decree, it being considered in truth the decree of the parties, though it be also the decree of the court, and their will stands as a sufficient reason for it, and it must be interpreted as they have written it.
    ActioN by E. Massey against W. E. Barbee and. wife, meard by Judge Henry R. Bryan, at tbe October Term, 1904. of tbe Superior Oourt of Duehak County, upon a case agreed.
    Tbis action was brought to bare declared and enforced tbe rights of tbe plaintiff under a consent judgment entered in a former action between tbe same parties, which judgment is as follows: “This cause coming on to be beard before Neal, J.: it is ordered and adjudged, both plaintiff and defendants in open court through their counsel consenting thereto, that tbe defendants are tbe owners of tbe lot, tbe eastern boundary of which is tbe line I) to E (“plastered wall”) of tbe plot hereto attached, projected to D in front and to E in tbe dotted line L-M in rear of said lot, which said dotted line is adjudged to be tbe southern boundary of defendant’s lot, and that tbe plaintiff is tbe owner of tbe lot, tbe western boundary
    
      
      
    
    
      of which is described by the line IT to M ( brick wall ) of the plot hereto attached. Said defendants are entitled to hold and possess the lot herein adjudged to belong to them and the plaintiff is entitled"to hold and possess the lot herein adjudged to belong to him, respectively in fee simple, and it is further ordered and adjudged that there shall be built in the basement under the storehouse of said defendants, on their lot as indicated on said plot, a partition wall to be constructed of wood, brick or other material as the said, parties to this action may agree upon, and that the said partition wall shall be built along said dotted line marked on blue print “B 0”; that said partition wall and a front and rear door' thereto shall be built and maintained at the equal and joint expense of the parties hereto, their heirs and assigns. It is further ordered that the said basement hall between the lines marked on said plot designated as “brick wall” and the said dotted lines “B. 0” shall be for the joint and common use and unobstructed enjoyment of the said Rufus Massey, his heirs, assigns and tenants and of the said W. R. and Virginia Barbee, their heirs, assigns and tenants. It is further ordered that the space between the line “D-E” and the “brick wall” which is now used as a stairway shall be and remain for the joint and common use and unobstructed enjoyment of the said plaintiff Rufus Massey, his heirs, assigns and tenants, and the defendants W. R. and Virginia Barbee, their heirs, assigns and tenants. It is further ordered and adjudged that the said stairway shall be repaired at the joint and common expense óf the parties hereto, their heirs and assigns. It is further ordered that the basement hall aforesaid and the portion of said lot between the line “D-E” and the line marked “brick wall,’,’ the stairway aforesaid, shall be used only for ingress and egress by said plaintiff, his heirs, assigns and tenants, to and from their respective buildings. It is further ordered and adjudged that the plaintiff and defendants pay their respective costs in tbis action incurred, to be taxed by tbe clerk of tbis court. It is further ordered tbat tbe clerk of tbis court bave tbis judgment and attached plot registered in tbe office of tbe Eegister of Deeds of Durham County.”
    Tbe bearing in tbe court below was upon a case agreed,. which need not be set out, as facts sufficient for an understanding of tbe same are stated in tbe opinion of tbis court. Judgment was given against tbe plaintiff who excepted and appealed.
    
      Manning & Foushee, for tbe plaintiff.
    
      Winston & Bryant and Graham & Graham, for tbe defendants.
   Walker, J.,

after stating tbe facts. It is stated in the case agreed tbat there has been no change in tbe building of tbe plaintiff or tbe building of tbe defendants, or in tbe stairway or other parts of tbe space between the brick wall and the plastered wall, as shown on tbe diagram filed in tbe case, except in tbe basement which has been made to conform to tbe requirements of tbe consent judgment ascertaining and declaring tbe rights of tbe respective parties in the premises. Tbe plaintiff claims and asks to be let into tbe possession and enjoyment of a one half interest in certain closets under the stairway and its landing, and also asks for the removal of certain wooden walls or partitions erected by tbe defendants to make bed rooms or offices, which obstruct the light from a window in tbe front end of tbe building and thereby darken tbe stairway. Tbe former judgment of tbe Superior Court, which was entered by tbe consent of tbe parties and under which tbe plaintiff makes his claim and asks for relief, is not very definite in its terms, but we camiot see after a most careful examination tbat there has been any violation of it or any invasion of tbe plaintiff’s rights in tbe property as declared therein. He must abide by that judgment as it was written with his consent. The court cannot change it, but can only construe its provisions.

The consent judgment provides with some particularity for the repair of the basement hall and for its joint use and occupancy by the parties and also for the joint and unobstructed use of the stairway in the space between the line “D E” and the “brick wall” and for the repair of the stairway at the joint and common expense of the parties. It is also provided “that the basement hall and the portion of said lot between the line ID E’ and the line marked 'brick wall’ (the stairway aforesaid) in said plot shall be used only for ingress and egress by the plaintiff, his heirs, assigns and tenants to and from their respective buildings.”

It 'appears, we think, from our recital of the material parts of the consent judgment, that no change in the occupancy of the building, other than that set out, was contemplated by the parties. It seems clear to us that the provision as to the use of the basement and the stairway by the plaintiff and the fact that reference is made only to those portions of the building, exclude the idea of an intention by the parties that the plaintiff shovdd use or occupy any other portion, such as the closets, under the stairway and its landing, or that any change should be made in the interior structure- of the building so that light can be admitted through the windows to the stairway. If such had been the intention, some provision would certainly have been made in the consent judgment for effectuating it, or at least some reference would have been made to it. We find no expression in the judgment indicative of such an und«'standing, and there is no rule of law by which we are authorized to read it into the contract of the parties, ór by construction to give the latter a meaning which its words will not warrant. We have no more right to construe the agreement of the parties contrary to its spirit and intent than we have to vary or modify its terms without the consent of the parties. The rights of the parties must be determined solely by tbe judgment to which they have assented. “The judgment, or as it is termed the decree, is by consent the act of the parties rather than of the court, and it can only be modified or changed by the same concurring agencies that first gave it form, and whatever has been legitimately 'and in good faith done in carrying out its provisions must remain undisturbed.” Vaughan v. Gooch, 92 N. C., 524. And in Edney v. Edney, 81 N. C., 1 Dillard J., says for the court: “A decree by consent as such must stand, and operate as an entirety or be vacated altogether, unless the parties by a like consent shall agree upon and incorporate into it an alteration or modification, If a clause be stricken out against the will of a party, then it is no longer a consent decree, nor is it a decree of the court, for the court-never made it.” The law will not even inquire into the reason for making the decree, it being considered in truth the decree of the parties, though it be also the decree of the court, and their will stands as a sufficient reason for it. Wilcox v. Wilcox, 36 N. C., 36. It must therefore be interpreted .as they have written it and not otherwise, and thus construed we “cannot see that the plaintiff has at present any cause of action against the defendants, so far as appears from his complaint.

We decide merely that the plaintiff cannot have the relief he seeks, but that the parties are entitled to use and enjoy the space between the two walls (including the basement, the occupancy of which is specially provided for), as they have been accustomed to do since the consent judgment was entered and in accordance with its plain directions. How the rights of the respective parties will be effected by any change in the stairway or other interior structures and what right, interest or estate they may have acquired'by the consent judgment in the land, or space between the walls as it is called in the case, are questions which we leave undetermined, as it is not necessary they should now be decided. Our judgment is therefore given, without prejudice to any future consideration and decision of those matters, or to the assertion of any right by either party under changed conditions and circumstances. We do not think it will serve any useful purpose to state more fully the reasons which have led us to our conclusion.

No Error.  