STACY, J., concurs in result. 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 *Page 110 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 juridiction [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 that 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 which had not been delivered by N. G. Sutton to (105) the parties named therein. The two matters involved seem so intermingled that it was impracticable to set aside a part of the consent order without setting it aside in toto. Indeed, the appellants in their assignment of error allege that the court "could not in effect set aside a part of the consent judgment without setting aside the whole thereof."
Upon a review of the facts found, we think that the judgment should be modified by setting aside the whole of said judgment and directing a settlement of the matters in controversy according to the regular procedure and practice of the courts. The judgment, therefore, is thus
Modified and affirmed.
STACY, J., concurs in result.
Cited: Overton v. Overton, 259 N.C. 37.