
    J. T. EDWARDS and Wife et al. v. GEORGE E. SUTTON et al.
    (Filed 14 March, 1923.)
    Judgments — Consent—Tenants in Common — Commissioner to Sell Land— Division of Land — Interest — Equity — Judgment Set Aside — Procedure.
    Where the action involves the validity of a deed given to an heir at law of the deceased owner of lands, and a division of his other lands among his heirs as tenants in common, and a consent judgment has been entered establishing tbe validity of tbe deed and directing a division of tbe other lands to be made by tbe grantee heir at law, bis report to have tbe effect of a decree of tbe court, all parties waiving tbe right to except: Held, upon exception to tbe report by one of tbe parties, that tbe division thus made was inequitable, and upon tbe finding of tbe judge that tbe one appointed was an interested party and bad not made division of all of tbe lands, tbe consent judgment should be set aside m toto, in tbe exercise of tbe equitable jurisdiction of the court, and its order referring tbe matter to tbe clerk of tbe court to appoint commissioners to sell, and further proceedings to be bad for tbe division according to tbe regular proceeding and practice of tbe court was a proper one.
    Stacy, J., concurs in result.
    Appeal by plaintiffs from Lyon, J., at chambers.
    N. G. Sutton died intestate 3 February, 1919, and this action was for tbe purpose of dividing* bis lands, and also to declare null and void certain deeds in possession of tbe defendant, George E. Sutton, wbicb bad been executed by N. G. Sutton and wife, but wbicb it was alleged bad never been delivered to tbe grantees therein named.
    All tbe parties, whether plaintiff or defendant, were children of tbe said N. G. Sutton and tenants in common, subject to tbe dower interest of,bis widow, who was not joined as a party to tbe action, but came in later and signed tbe consent judgment wbicb it is sought by this proceeding to have set aside..
    "When tbe case came on for trial at tbe June Term, 1921, of Lenoir, all tbe parties, including said widow, agreed upon a settlement and method of division of tbe lands of N. G. Sutton, tbe plaintiffs relinquishing tbe contention that certain deeds in tbe possession of George E. Sutton bad never been delivered, and it was agreed that said George E. Sutton should be authorized to divide all tbe lands owned by N. G. Sutton at tbe time of bis death wbicb were not covered by tbe said deeds, tbe division to be made by George E. Sutton, one of tbe defendants, “according to bis views of what is necessary to make an equal and equitable partition in value, so that tbe acreage assigned to each child by George E. Sutton, added to tbe lands conveyed to each of tbe children in said deeds, should constitute a fair and equitable partition of tbe lands of said N. G. Sutton, and with power in George E. Sutton to pay such sums as might be necessary to 'make such partition equitable out of tbe personal estate of N. G. Sutton, of wbicb said George E. Sutton was administrator.”
    Under tbe terms of said consent judgment tbe said George E. Sutton was to report to tbe court in writing in 60 days from tbe adjournment of tbe June term, all of tbe parties “agreeing in. advance to waive any right to file exceptions thereto, and agreeing that the report should be confirmed and entered as a decree of tbe court.”
    
      ■ The said George E. Sutton-did not file his report until 22 September, 1921. One of the defendants, L. A. Sutton, who is the appellee, filed a petition at October Term, 1921, of the Superior Court, alleging that the division of the lands as shown in the report of George E. Sutton was inequitable, and moved to set aside the report and requested the court to appoint three commissioners to divide the land. Affidavits were filed on both sides. The judge refused to set aside the judgment in toto, but held that the division of the lands as provided for in said judgment should be vacated for that certain of the lands- of the late N. G. Sutton were not divided; and further, that the person designated under the consent judgment to make such division was interested in the subject-matter thereof, and adjudged that the partition be vacated and set aside and the proceedings be transferred to the clerk of the Superior Court with directions to appoint commissioners for that purpose. From this judgment all the parties, except L. A. Sutton, appealed.
    
      Dawson & Wallace and Cooper, Whitaker & Allen-for plaintiffs.
    
    
      Ward & Ward for L. A. Sutton.
    
   Clabk, C. J.

This was a motion to set aside the consent judgment for the division of lands, in which judgment it was recited that it was agreed that certain deeds in the possession of George E. Sutton, which it is alleged had never been delivered by the intestate, should be accepted as valid.

The judge, while declining to set aside the consent judgment in full, held that the division of the lands as provided for in said judgment should be vacated for that all the lands of the late N. G. Sutton were not divided; and further, for that the person designated under the consent judgment to make such division was interested in the action and subject-matter thereof. There was also strong evidence before the court to show gross inequality in the partition, as reported. The report of George E. Sutton, appointed to make the partition, was not filed within the time specified by the consent judgment.

It is a well settled principle of law that no man should be a judge in his own case. White v. Connelly, 105 N. C., 69, and cases cited thereto in the Anno. Ed. For this reason, and 'because there had not been a complete division of all the lands, we think the judge was well within his equitable jurisdiction in setting aside the report of the referee and referring the matter to the clerk of the court to appoint commissioners and to proceed regularly for the division of the real estate in question.

As the judge finds thát all the lands of the late N. G. Sutton have not been divided, it seems that it was proper also to set aside the agreement as to the deeds which it was alleged were in the possession of George E. Sutton, and wbicb bad not been delivered by N. G. Sutton to tbe parties named therein. Tbe two matters involved seem so intermingled tbat it was impracticable to set aside a part of tbe consent order without setting it aside in toto. Indeed, tbe appellants in their assignment of error allege tbat tbe court “could not in effect set aside a part of tbe consent judgment without setting aside tbe whole thereof.”

Upon a review of tbe facts found, we think tbat tbe judgment should be modified by setting aside tbe whole of said judgment and directing a settlement of tbe matters in controversy according to tbe regular procedure and practice of tbe courts. Tbe judgment, therefore, is thus Modified and affirmed.

Stacy, J., concurs in result.  