¶1On the 7th of October, 1839, John H. Whiting and Martha his wife, conveyed to Oill A. Gary in trust, certain real and personal estate, which Whiting claimed to be entitled to in right of his wife after the death of her mother, Mrs. Susan Shield, who held the property as tenant for life under her husband’s will, remainder over to the children of the testator. The prop-, erty was conveyed in the first place, for the payment of a debt due from Whiting to the appellee Jennings, and another to the appellee Robinson, the overplus to be for the separate use of Mrs. Whiting and her children by Whiting. Gill A. Cary the trustee, John C. Whiting the grantor, and Mrs. Susan Shield the tenant for life, having departed this life, Jennings and Robinson filed thfeir bill in chancery “to appoint a new trustee in place of Gill A. Gary, with directions to execute the trust created by the said deed in conformity with the provisions thereof,” and for general relief. It was a friendly suit. The defendants filed their answers immediately. Mrs. Whiting in her answer assenting to the appointment *781of a new trustee to sell as much of the property as might be necessary for the payment of the plaintiff’s debts, and asking that what might be left should be delivered over to her under the provisions of the deed of trust. The cause was heard by consent, and on the 2d day of November, 1843, the day on which the bill and answers were filed, the court rendered *a decree which settled and decided every matter to which the bill related, and directed the payment of costs. It appointed John B. Cary trustee in place of Gill A. Cary, “to execute the trusts created by the deed of the 7th of October, 1839, according to the provisions of the deed,” and directed him to proceed to execute the trusts “whenever required by the complainants or either of them;” and to “pay and deliver over to the defendant Martha Whiting, so much of the property conveyed, and of the moneys arising from the sale, as shall remain after satisfying the trusts in favor of the plaintiffs, and the costs and expenses of executing the trust, together with the costs of suit.” This decree having embraced every object contemplated by the suit, contained no reservation of leave to the parties to apply at a future day for any other or further relief, or for anj modification of the decree, or of any right to apply to the court to see in what manner the trustee had acted, or to enforce him to perform his duty, or to appoint another in his place. But on the contrary, showing that the decree was intended and considered to be final, there was added to the decree a direction to the trustee to make return of his sales to the clerk’s office of the county of York to be recorded, pursuant to the act of Assembly in that case made and provided. Since the repeated decisions of our Court of Appeals, declaring what decrees are to be considered as final, I should have supposed there would be no difficulty in determining that the decree above referred to, was final. It settled the rights of all the parties, directed how the costs should be paid, contained no sort of reservation whatever in favor of any party to apply for further relief, or for any other purpose, at a future day. In Tennent’s heirs v. Pattons, 6 Leigh, 196, Judge Carr said, that every decree which disposes of the whole cause and leaves nothing to be done, is a final decree. But there is a stronger case, a much stronger case, than this is, to shew the finality of the decree under consideration. It is the case of Harvey and *wife v. Bronson, 1 Leigh, 108, which may be regarded as the leading case on this point. In that case, a decree had been rendered disposing of the whole subject, deciding all questions in controversy, ascertaining the rights of the parties and awarding costs, and a commissioner had been appointed to sell property, to account for and pay the proceeds to the parties, with liberty to them to apply to the court to add other commissioners, or substitute new commissioners, or have a decree for partition of the property directed to be sold. The Court of Appeals, by the unanimous opinion of all the judges who sat in the cause, held the decree to be final. The opinion delivered by Judge Carr, in that case, in which Judges Green and Brooke concurred, placed the question in a light too clear to admit of misapprehension or doubt. The principle of this case was-affirmed in the cases of Paup’s adm’r v. Mingo and others, 4 Leigh, 163, and Thornton v. Fitzhugh, 4 Leigh, 209; in. each of which, the causes were retained on the docket, for further proceedings to be had therein — shewing clearly, that the mere fact of the cause being retained in court and on the docket, does not divest a decree of its finality. Nor is a final decree converted into an interlocutory decree, by adding thereto an order suspending the decree as to a part of the account involved in the cause. Flemming, &c. v. Bolling, &c., 8 Grat. 292.
¶2On the 30th of October, 1847, which was after the lapse of three years, eleven months and twenty-eight days, the bill of review was filed by William Nelson and Martha his wife, who was Martha Whiting before her intermarriage with Nelson, pointing out errors in the decree of the 2d November, 1843, and asking the court to revise the same, and that Mrs. Nelson might be “reestablished” in her right to the property referred to in the deed, and to the money for which the negroes had, as she alleged, been improperly sold by the trustee, John B. Cary, under the decree of the 2d November, 1843. This bill of review not having been filed *within three years from the date of the decree referred to, the plaintiffs could not have that decree reviewed or reversed, if it had been ever so erroneous. But if its only meaning and effect was simply to appoint a trustee in place of the one who had died, and for no other purpose, and in no wise changed, ratified or confirmed that deed, or any of its provisions, there was certainly no error in the decree to be corrected, either on a bill of review or appeal, prosecuted in due time, of which the plaintiffs could complain. But what the true construction of that decree is, as to its operation on the rights of Mrs. Nelson, formerly Mrs. Whiting, cannot arise or be determined on the present occasion. That construction may be had in a new suit instituted for that purpose. If that question was before us, we should not hesitate to say that, as to' her personal estate, that deed standing alone was inoperative.
¶3The bill of review had reference to another order or decree, made by the same court, purporting to be a decree made in the same suit. The trustee, after his appointment had been made, proceeded to execute the trust, on the 22d February, 1844, and sold three negroes for the net sum of $973 75, and made report of his proceedings to the Circuit Superior Court of Naw and Chancery of York county. And on the 1st day of November, 1844, that court made an order in the suit of Jennings and Robinson v. Whiting, in which the final decree had. *782been rendered as above, stated, by which the report of the sale of the negroes was confirmed, and the net proceeds of the sale, after defraying the expenses of the sale -and costs of suit, were directed to be paid over to the creditors Jennings and Robinson, and then adds these words to the order: “and the object of this suit being fully obtained, the cause is ordered to be stricken from the docket.” In relation to these words I desire to make a single remark. If the retaining a cause in court, in order to give further relief, or to change the decree by adding to the commissioners, or appointing other commissioners to sell the property, or *to make an order for having the property divided, instead of beihg sold,-or to decide upon apart of the account embraced in the decree, will not have the effect, as herein before shown from the authorities referred to, of rendering a final decree interlocutory, surely the mere retaining the cause on the docket by the clerk, when nothing more is to be done, cannot have that effect. In the case of Yarborough v. Deshazo, 7 Grat. 374, the Court of Appeals held, that “a case in which there had been a final decree was not a pending suit in the sense of the Code.” This order of the 1st of November, 1844, was therefore not made in a pending suit, and was for that reason erroneous and could be revised, either, upon an appeal, or by bill of review. Whether the order upon its merits was right or wrong, cannot be determined by an inspection of the record; for the whole record of that proceeding consists of the report of the sale by the trustee and the order of court made thereon. The bill of review applies to this order, and suggests errors in it. The defendants Jennings, Robinson and Cary demurred to the bill, the other defendants answered. The cause was heard on the 30th April, 1849, on the record, which was all-sufficient, for the demurrer put in issue all questions which could arise on the record, and the court on the hearing reversed the order of the 1st day of November, 1844, as it should have done, and if it had dismissed the bill, as to the old suit in which the decree was final, all would have been right; but the court in effect did what may be regarded as substantially tantamount to a dismission, and that was, in the language of the court, “leaving the said decree Of the 2d November, 1843 in full force.”
¶4I am, therefore, for affirming the decree.
¶5thought the court below erred in matter of form, for which he was unwilling to reverse the decree, as a correct result had been obtained, and concurred generally in the opinion of RINDD, P.
¶6That the deed of Whiting and wife of the 7th of October, 1839, was wholly inoperative and a nullity, so far as it purported to convey Mrs. Whiting’s reversionary interest in the personal estate to which she was entitled under the will of her father after the- death of her mother, seems to me to be too clear for discussion. Upon the reasoning and the authorities cited by the appellant’s counsel, its inefScacy is placed beyond the reach of doubt or cavil. If, then, before the filing of her answer her reversionary rights in the personalty .were unaffected by the deed, did her answer, filed when she was sui juris, operate by way of confirmation or ratification to render the deed valid and effectual in law, to bind and pass her rights in the personalty theretofore unaffected by the deed? Are we at liberty to give to her answer any other meaning or effect than a consent to the appointment of a new trustee, in the room and stead of the deceased trustee, to execute the trust?' And if we must, in virtue of the proviso of her answer, are we not inevitably driven to the conclusion, that this lady, without any consideration, either new or old, in gross and palpable ignorance of her legal rights, made a mistaken admission, the effect of which, if she is to be bound by it, is to divest her of her rights? The first decree rendered on the 2d' November, 1843, and which was treated by the court that rendered it as interlocutory, did not directly and necessarily compromit the rights of Mrs. Whiting, afterwards the Wife and now the widow of Wm. Nelson. But the subsequent decree of the 1st November, 1844, treated by the court as a final decree, based upon the first as interlocutory, did directly invade the plaintiff’s rights, by confirming the sale of the personalty not effectually conveyed by the deed, and directing payment of the proceeds to the plaintiffs, who were the creditors in the trust deed. The bill of review, filed in this cause on the 30th October, 1847, had for its object the re-viewal and reversal of these two decrees. The defendants Mid not, . according to the regular practice, plead the decrees and demur to the opening of the enrollment, but filed a simple demurrer to the bill, and the court, upon that' demurrer, on the 30th April, 1849, expressed the opinion, that the decree of the 2d November, 1843, was final, and that therefore no relief against the same could be granted in this cause, and that the decree of 1st November, 1844, was erroneous, and adjudged that the said decretal order of the 1st November, 1844, be set aside and annulled, leaving the decree of the 2d November, 1843, in full force. We are left to conjecture the reasons of the court for declining to disturb the first, and for setting aside and annulling the last. The finality of the first decree, the reason assigned by the court for refusing to review it, cannot be the true one, because none but a final decree can be reviewed. The court must have meant that the lapse of time, more than three years from the date of the decree to the filing of the bill, precluded the bill of review, although the statute of limitations was not pleaded, and the court must have regarded the last decree as a nullity, because the first was in its opinion final. I consider it a question of doubt whether upon its face and by its terms the first de*783cree was final. It was just such a case that either the one or the other would have been proper, accordingly as the court might elect to make it the one or the other. The court that made it, considered it interlocutory, and based upon it its final decree. This last decree made a resort to the bill of review necessary to get that out of the way. The bill characterizes the first as an interlocutory, and the last as the final decree. The defendants did not plead the decrees and demur to opening the enrollment, but relied upon a demurrer to the bill, unaccompanied bj- a plea of the record of the decrees. Yet the court, whilst conceding the party entitled to the relief of having the last decree, the one most prejudicial to her interests, and confessedly final, declared null and void, nevertheless sustained the demurrer to the bill as to the *first decree, the one least prejudicial to her interests, and one which the court, rendering both decrees, considered and treated as interlocutory. It is to me a singular proceeding that a demurrer to the whole bill of review impeaching two decrees, one alleged to be interlocutory, and the other final, should be sustained, and in the same breath relief given against the last and final decree, by declaring it null and void. Was the last decree declared null and void upon its merits, and because it conferred rights on' the plaintiffs in the original bill in derogation of the rights of Mrs. Nelson, not conferred by the first decree, or was it nullified because though conforming to the rights of the parties declared by the first decree, it was merely supererogatory and unauthorized in consequence of the first being a final decree? There is something in the language of the court that would seem to justify the inference that the court reversed it upon its merits as derogating from the rights of Mrs. Nelson under the first decree, and that whilst she was entitled to no relief against the first decree, because final, in the proceeding by bill of review, yet that she might be in some other form of proceeding. It seems to me, whether the first decree were final or interlocutory, if interpreted to mean anything more than the appointment of a new trustee, she was entitled to be relieved against it by this proceeding, which is both a bill of review and supplement — for the court having given to it the efScacy of a bill of review to reverse and annul the last decree, the plaintiff was thereupon entitled to the relief of having what was done under the reversed decree undone and things placed in statu quo. And this necessarily involved the (true construction of the first decree' — ■ the extent to which it affected the plaintiff’s rights whether final or interlocutory— and this question should have been adjudicated upon answer instead of demurrer to the bill of review.
¶7If it could be made to appear by allegation and proof in the answer and evidence, that Mrs. Nelson, with full *knowledge of her rights under the trust deed,'even without consideration, and much more, if with some consideration new or old, intended to, and did by her answer, surrender her rights, then the decree ought not to be disturbed; otherwise, it should have been set aside, reversed and annulled.
¶8I am, therefore, of opinion that the decree of the court below is erroneous in sustaining the demurrer to the bill of review, or so much thereof as sought to review and reverse the first decree, and that, instead of sustaining, the court ought to have overruled the demurrer, and required the defendants to answer the bill. .
¶9Decree affirmed by a divided court.