This case is included in the annotations in 103 A.L.R. 1441, where the above section is described as admittedly dictum. The annotation of the case therein reported, Cleveland Trust Co. v. Capital Theatre Co., 117 W. Va. 1 ( 183 S.E. 457), indicates that although "a mortgagee has obtained a decree of sale, he may ordinarily delay indefinitely the actual execution of the decree, even though the mortgage contains no provision therefor." We hold that the question of when the sale is to be made under a foreclosure in equity is within the sound discretion of the trial judge.
ent, misrepresentation, undue influence, violation of confidence or other inequitable conduct, such unilateral mistake by Tamko as to the construction or legal effect of the contract would afford no basis for other equitable relief, even if such other relief were sought by Tamko. Many courts have found it appropriate to point out, in a wide variety of situations, that equity vests in the judiciary no broad and unfettered discretion to disturb or alter contractual rights and no carte blanche authority to decree such contractual construction as a court may believe would have been better for the parties; that the aid of a court of equity may not be invoked to avoid or prevent enforcement of a contract, simply because such enforcement may work a hardship upon one of the parties; and that, in the absence of some recognized ground warranting equitable interference, the rights of the parties should be determined by their contract and, as thus determined, should be respected and effectuated. Cleveland Trust Co. v. Capitol Theater Co., 117 W.Va. 1, 183 S.E. 457, 459(3), 103 A.L.R. 1435; Morrison-Knudsen Co. v. Phoenix Ins. Co. of Hartford, 8 Cir., 172 F.2d 124, 128. So, in the case at bar, the function of the trial chancellor in the first instance was, and of this court on appeal is, not to fashion under the guise of construction a new contract for Tamko and Fenix, but rather to interpret and enforce, without regard to its wisdom or folly, the contract which Tamko's assignor and Fenix' grantor voluntarily entered into. 19 Am.Jur., Equity, § 67, p. 84; Pomeroy's Equity Jurisprudence (4th Ed.), Vol. 2, § 843, p. 1718; Lamson v. Horton-Holden Hotel Co., 193 Iowa 355, 185 N.W. 472, 474-475, 26 A.L.R. 465; Cochran v. Pew, 159 Pa. 184, 185, 28 A. 219, 220; Sibert v. McAvoy, 15 Ill. 106, 109-110; Gall v. Union Nat. Bank of Little Rock, 203 Ark. 1000, 159 S.W.2d 757, 763.
August 8, 1961.James D. Walters, Esq., of Columbia, for Appellant, cites: As to Trial Judge erring in ordering sale of some, but notall, of property described in contract of sale, which, in effect,rearranged and varied terms of contract: 30 C.J.S. 411, Sec. 62; 135 S.E. 884; 96 A.L.R. 1446, 40 P.2d 245; 117 W. Va. 1, 183 S.E. 457, 103 A.L.R. 1435. Messrs. Harvey Harvey, of Beaufort, for Respondent, cite: As to equity courts having jurisdiction of suits for dissolutionand settlement of partnerships: 228 S.C. 588, 91 S.E.2d 267; (W.Va.) 43 S.E.2d 299; 68 C.J.S. 933, Sec. 441; 68 C.J.S. 987-988, Sec. 438. As to TrialJudge properly ordering the sale of partnership assets beforea final adjudication of accounting between the parties: 68 C.J.S. 999, Sec. 445 E.