The opinion
Eccleston, J.,
delivered the following dissenting opinion.
If the appellant is entitled to relief, I think it must be upon the ground of mistake, and not of fraud. Neither the averments in the bill nor the proof, present a question of fraud, either actual or legal, on the part of the trustee, but purely a mistake, in my opinion. If so, the party should have sought redress by a proceeding in the former cause, in which the sale was made, and not by an original bill. In Pinkney vs. Jay and Mason, 12 G. & J., 83 , the doctrine is clearly announced, that an original bill is never proper to impeach a decree, except on the ground of fraud. And in Tomlinson vs. McKaig, 5 Gill, 277 , the Court of Appeals say, “before ratification, the sale must appear to be in all respects fair and proper, or *163 it cannot receive the sanction of the court. But it is equally true, that after the sale has been confirmed, and after the term had passed, the proceedings are considered as enrolled, the court possesses no power over its decree to annul the same, except by bill of review for error apparant on tlie face of the decree, or for some new matter discovered since the decree, or by an original bill to annul the same for fraud.
Final orders ratifying sales and auditor’s reports, in which the rights of parties are settled, are treated and considered in chancery proceedings as equivalent to decrees, technically such, and I see no reason why these orders can be impeached by any other mode than decrees can. Indeed the language of Judge Archer in Tomlinson vs. McKaig, seems quite as applicable, in its immediate allusion to an order ratifying a sale, as to a decree, if not more so. Be this as it may, the reasoning in regard to decrees is equally applicable to orders of this sort. They are technically called decretal orders. I therefore cannot concur with my brethren in their views in regard to this case.
Le Grand, C. J., and Mason, J., agreed with Tuck, J.
Case remanded.