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. *105Sutton, 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.