
    Story against Hawkins and Others.
    Chancery.
    fMr. Lyle and Mr. Daviess for plaintiff: Messrs. Bobinson & Johnson fox-defendants.]
    From the Circuit Court for Scott County.
    
      April 12.
    
    A decree directing a sale of property, among other things, but in which a right to change or modify the decree at a subsequent term be deemed final as to the sale (which was to take place before the next term,) but within the power of the Court, and qusbject to be changed by agreement of the parties, as to all other matters, subsequent term.
    An agreement of counsel, entered on record, is binding upon the parties.
    In pursuance of a decretal order in chancery, a commissioner made a sale of trust property, and adjusted the accounts among the parties to the suit, ascertaining what part of the pro ceeds they were respectively entitled to, and made his report to Court. And a decree was entered purporting to be made “by consent of all parties by their counsel, confirming the report, and settlement thereby made” — and followed by an order directing the commissioner to collect the proceeds of tíxe sale, and distribute them: held that by the consent, all exceptions to the report, and, consequently, all right to set aside the sale were waived. And as the several orders are connected by the word and, the consent may be considered applicable to the whole; but if not, as the report must stand confirmed, it would be nugatory to annul the other parts of the decree.
    Plea of a release of errors sustained by showing that the decree was made by consent.
   Judge Ewing

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 each party was entitled, and made report to Court. Upon the coming in of which, a decree was rendered by the consent of all the parties, by their counsel, confirming the commissioner’s report, and the settlement thereby made, and an order made, that the commissioner collect the proceeds of the sales, and distribute them according to the settlement and report. This decree, being rendered by consent, must stand. Consensus toilet errorem.

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.  