dissent"> Litz, Judge,

(dissenting) :

The original decree, adjudging the debt secured by the trust *499 deed to have been fully paid with money furnished by Thomas for his sole benefit as alleged in the bill, could not legally have been reversed by the trial court, at a subsequent term (no fraud, accident, mistake, surprise or adventitious circumstance in its procurement being charged), except for error apparent upon the face of the proceedings. Wood v. Harmison, 41 W. Va. 376; 2 R. C. L., p. 40; Boyall’s Admr. v. Johnson, 1 Rand. 421. This, I understand to be the holding of the court, stated in the opinion, as follows: ‘ ‘ The process and return herein are regular; so the right of the court to reverse the October decree depended entirely upon whether the allegations of the bill justified the entry of the decree.” Is there error apparent upon the face of the proceedings? The majority of the court have decided that there is, in that the bill shows the trust deed to be in force and effect for the benefit of Knight; notwithstanding the charge in the bill, confessed by Thomas and Knight, that the debt was paid for the “sole benefit” of Thomas with money furnished by him. The authorities cited in support of so extraordinary a holding simply enunciate the well known principle that a trustee will not be permitted to violate the trust in the interest of himself or for the benefit of another to the prejudice of the cestui que trust. The bill in this case does not attack the trust, but alleges merely that it has been fully discharged. This allegation was confessed by both Thomas and Knight. The decision means, if it is to be considered as announcing a rule of law applicable to other similar cases, that a trustee is not permitted to aver in a court of equity that the trust has been discharged and the court is likewise powerless, at his instance, to so decree, notwithstanding a legal confession of the fact by the parties in interest. Judge Woods concurs in this note.

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