Massey v. Barbee.

Walker, J., after stating tbe facts. It is stated in the case agreed tbat there has been no change in tbe building of tbe plaintiff or tbe building of tbe defendants, or in tbe stairway or other parts of tbe space between the brick wall and the plastered wall, as shown on tbe diagram filed in tbe case, except in tbe basement which has been made to conform to tbe requirements of tbe consent judgment ascertaining and declaring tbe rights of tbe respective parties in the premises. Tbe plaintiff claims and asks to be let into tbe possession and enjoyment of a one half interest in certain closets under the stairway and its landing, and also asks for the removal of certain wooden walls or partitions erected by tbe defendants to make bed rooms or offices, which obstruct the light from a window in tbe front end of tbe building and thereby darken tbe stairway. Tbe former judgment of tbe Superior Court, which was entered by tbe consent of tbe parties and under which tbe plaintiff makes his claim and asks for relief, is not very definite in its terms, but we camiot see after a most careful examination tbat there has been any violation of it or any invasion of tbe plaintiff’s rights in tbe property as declared therein. He must abide by that judgment as it *88 was written with his consent. The court cannot change it, but can only construe its provisions. The consent judgment provides with some particularity for the repair of the basement hall and for its joint use and occupancy by the parties and also for the joint and unobstructed use of the stairway in the space between the line “D E” and the “brick wall” and for the repair of the stairway at the joint and common expense of the parties. It is also provided “that the basement hall and the portion of said lot between the line ID E’ and the line marked 'brick wall’ (the stairway aforesaid) in said plot shall be used only for ingress and egress by the plaintiff, his heirs, assigns and tenants to and from their respective buildings.” It 'appears, we think, from our recital of the material parts of the consent judgment, that no change in the occupancy of the building, other than that set out, was contemplated by the parties. It seems clear to us that the provision as to the use of the basement and the stairway by the plaintiff and the fact that reference is made only to those portions of the building, exclude the idea of an intention by the parties that the plaintiff shovdd use or occupy any other portion, such as the closets, under the stairway and its landing, or that any change should be made in the interior structure- of the building so that light can be admitted through the windows to the stairway. If such had been the intention, some provision would certainly have been made in the consent judgment for effectuating it, or at least some reference would have been made to it. We find no expression in the judgment indicative of such an und«'standing, and there is no rule of law by which we are authorized to read it into the contract of the parties, ór by construction to give the latter a meaning which its words will not warrant. We have no more right to construe the agreement of the parties contrary to its spirit and intent than we have to vary or modify its terms without the consent of the parties. The rights of the parties must *89 be determined solely by tbe judgment to which they have assented. “The judgment, or as it is termed the decree, is by consent the act of the parties rather than of the court, and it can only be modified or changed by the same concurring agencies that first gave it form, and whatever has been legitimately 'and in good faith done in carrying out its provisions must remain undisturbed.” Vaughan v. Gooch, 92 N. C., 524. And in Edney v. Edney, 81 N. C., 1 Dillard J., says for the court: “A decree by consent as such must stand, and operate as an entirety or be vacated altogether, unless the parties by a like consent shall agree upon and incorporate into it an alteration or modification, If a clause be stricken out against the will of a party, then it is no longer a consent decree, nor is it a decree of the court, for the court-never made it.” The law will not even inquire into the reason for making the decree, it being considered in truth the decree of the parties, though it be also the decree of the court, and their will stands as a sufficient reason for it. Wilcox v. Wilcox, 36 N. C., 36. It must therefore be interpreted .as they have written it and not otherwise, and thus construed we “cannot see that the plaintiff has at present any cause of action against the defendants, so far as appears from his complaint. We decide merely that the plaintiff cannot have the relief he seeks, but that the parties are entitled to use and enjoy the space between the two walls (including the basement, the occupancy of which is specially provided for), as they have been accustomed to do since the consent judgment was entered and in accordance with its plain directions. How the rights of the respective parties will be effected by any change in the stairway or other interior structures and what right, interest or estate they may have acquired'by the consent judgment in the land, or space between the walls as it is called in the case, are questions which we leave undetermined, as it is not necessary they should now be decided. Our *90 judgment is therefore given, without prejudice to any future consideration and decision of those matters, or to the assertion of any right by either party under changed conditions and circumstances. We do not think it will serve any useful purpose to state more fully the reasons which have led us to our conclusion. No Error.