The first error complained of by the Kanawha Valley Bank is, decreeing to the petitioner, Mary E. Chilton, dower in the 66-£ and 230 acres of land.
It is insisted in argument, by her counsel, that her husband, Wm. E. Chilton, having purchased from his assignees in bankruptcy, “all the right, title and interest of Joseph B. Chilton,” in said lands, subject to said trust debts, and the judgment of Gandee for $1,800, and having become the owner by assignment of the trust debt of $1,950 to Chandler,. ■ — that Wm. E. Chilton thereby was seized in equity of the said lands.
By his purchase from the assignees, Wm. E. Chilton, according to its very terms, only acquired the title of the bankrupt to these lands, subject to the trust debts due to himself and to Chandler, as well as to the judgment of Gandee. The *653legal title to the lands was out-standing in the trustee Grilli-son, and neither Wm. E. Chilton, Chandler nor Gandee could call in the legal title for his benefit, any more than could Joseph B. Chilton. All these liens were superior to any claim of dower of the wife of any purchaser of the mere equity of redemption, owned by Joseph B. Chilton and. so sold by his assignees.
If this equity of redemption at the sale thereof made by the assignees had been purchased, by Gandee, or any other person not interested in the said trust debts, no one would pretend that the widow of such a purchaser could rightfully claim dower, in any greater interest in the lands than what would remain after discharging the trust debts.
The only interest that Wm. E. Chilton acquired in these lands by the purchase of this equity of redemption, was what might remain when the liens thereon were discharged, and in such residue his widow would be entitled to dower. He possessed an equitable interest in the land, it is true, but subject to superior equities, which unless otherwise discharged, might, as in this case they did, extinguish this equity of redemption. When he transferred to A. H. Wilson the trust debts, the equity of redemption in his hands, remained and continued chargeable therewith.
There was no moment of time when Wm. E. Chilton had the right to compel the trustee to convey to him the legal title to the lands. By the deed of trust he acquired the equitable right to charge the land with the payment of the trust debts; but no interest in the land itself.
By his judgment Gandee acquired a similar right, subject only to the prior right of the trust creditors, who had the right to enforce, and did enforce by his suit to sell the lands, the result of which was a complete extinguishment of the equity of redemption, and with it, all rightful claim of Mary E. Chilton to dower therein.
It was claimed by her counsel in argument that when her husband, Wm. E. Chilton, acquired the equity of redemption, in addition to the trust debts secured upon the property, the debts merged into the equity of redemption, and gave the husband an unincumbered estate in the lands, in which his wife was entitled to dower.-
*654This is a clear mistake; in such case there can be no merger, for that can never happen, except where a greater estate and a less coincide, and meet in the same person, without any intermediate estate. In that case the less estate is immediately annihilated, or in 1 aw phrase is said to be sunk or drowned in the greater. (Blk. Com. Book, 2 p. 177.
In this case the legal title, the larger estate was vested in the trustee, the equity of redemption, the less estate was vested.in Wm. E. Chilton, they never united in him, and there could not otherwise be a merger of title.
Wm. E. Chilton never having been seized of any estate of inheritance in the lands mentioned in the petition of his widow, Mary E. Chilton, she is not entitled to dower therein, and therefore the court erred in overruling the plaintiff’s demurrer to h.er petition.
In regard to the appeal taken by Meadows, Miles and Hill little need be said. W e concur in the line of argument followed by their counsel, that as neither Jane D. Matthews, nor any of the petitioners, or any of the persons through whom any of them claim any portion of said land were parties to this suit at the time the decree of the 27th day of June,“1879, was rendered, or at the time the appeal therefrom was decided by this court, they are not in any manner barred of any rights they had in the said land, or precluded from enforcing the same, by reason of any of the proceedings h.ad in this cause in the Circuit Court, or in this Court, before the filing of their said petition, and that up to that time the proceedings as to them or any of them, was not res adjudioata, and the same is equally true as to all the other heirs of said John Wilson, or their assignees, who have never been made parties to the suit.
Until the filing of their petition they were not, and they could not be affected by legal proceedings, to which they were not in any manner made parties ; and they were not? in contemplation of law and could not be affected thereby-
While it is clear to our minds, that A. IT. Wilson by his purchase under said tax-sale, and by the recorder’s deed executed to him acquired the title of all the heirs of his father John Wilson in and to the 1,212 acres oflandasit was vested in them at the commencement of the years 1861 and 1882, *655and that the deed of trust made by him to Gillison to secure the payment of the Blaine trust debt of $1,500, operated to convey to said trustee the title so acquired to all the 1,212 acres, not before that time conveyed to any other person, and that his title to all of said tract except the 142 acres conveyed by him to Mary E. Wilson, was subject to the liens of the several judgments reported by Commissioner Gallagher, it does not necessarily follow, that it is discharged of any trust attaching thereto, in favor of his no-heirs. Batton v. Woods, 27 W. Va. 58.
These petitioners are not precluded from claiming their rights in the lands mentioned in their petition, if any such they have, nor should they be denied the privilege of asserting and establishing the same in this suit, and be compelled to institute, an independent proceeding of their own for that purpose. Until the rights of these petitioners, and of all the other heirs of said John Wilson, can be ascertained and settled, no person can safely purchase the interest' of A. H. Wilson in said 1,212 acres of land. Before this can properly be done, the heirs of John Wilson, or the persons claiming under them, should be made parties defendant to this suit, and for this purpose the bill must be amended, and they be made defendants, that the court, before directing a sale of the land, may ascertain and determine what interest, in said land is owned by A. H. Wilson, and what interest therein passed to the trustee Gillison, to secure the Blaine debt. If the allegations of the petition be established, and other of said heirs have interest in said land, an account of the rents and profits, thereof, as well as the taxes thereon paid by A. H. Wilson or any other of said heirs, should be taken and all moneys .expended by him in acquiring said title according to,the principle applicable to such accounts between co-tenants, see Dodson v. Hopwood, decided this term, that the rights of all parties interested may be ascertained and determined before any sale of the 1,212 acres of land shall be made, We are therefore of the opinion that the Circuit Court erred in dismissing the petition of said Meadows, Miles and Hill.
As to all the parties before the court when on the former appeal, all the questions now presented for consideration *656by the appeal of Mary E. Wilson from the decree of the Circuit Court rendered herein, on the 20th day of July, 1886, were presented for our consideration, and it was then adjudged by. this Court, that the defendant, Alexander H. Wilson, by his purchase at the tax sale made on the 6th day of October, 1866, and by the execution and recordation of the deed made to him by John Slack, recorder of Kanawha county, was vested with all the title of the heirs of his father John Wilson, in and to the tract of 1,212 acres of land, which was vested in them at the commencement of the years 1861 and 1862; that the deed of trust executed by A. H. Wilson on the 1st day of August, 1870, to Grilli-son, to secure to Blaine his debt of $1,000, operated to convey to him all of said 1,212 acres of land, not before that time, and after October 12,1868, conveyed by him to any other person, and that the tract of 142 acres conveyed to Mary E. Wilson is subject to said deed of trust; and that the several judgments reported by said commissioners were liens upon all of the tract of 1,212 acres except the tract of 142 acres conveyed to Mary A. Wilson, subject to the prior lien of the trust deed to secure the Blaine debt, — and that the house and lot conveyed by Hansford and wife to Grilli-son, trustee, for the sole and separate use of said Mary E. Wilson was chargeable with the amount of said Blaine debt as well as with so much of the plaintiff’s judgment of $1,868.82 as was due to it at the time said dwelling house was completed, “which from the record as it then appeared was $407.48 as of date of the 15th day of October, 1870.
This last named debt, having been improperly reported by the commissioner, and his report for that cause having been excepted to by Mary E. Wilson, this Court was of opinion that the report should have been re-committed to the commissioner in order that the same might be properly reported, and hence in declaring the liens on the “house and lot” this Court decided, that in addition to the Blaine debt, it was chargeable “with so much of the plaintiff’s judgment of $1,868.82, as was due at the time the dwelling house was completed,” which was on the 15th day of October, 1870. The Circuit Court having failed to publish the notice to lien-holders required by section 7 of chapter 126 of *657the Acts of 1882, this Court said, “it must not he overlooked, that before any decree of sale of said lands could be rendered .such notice must be given and a report in pursuance thereof made by a commissioner ascertaining the liens on said lands- .and that until this has been done, the commissioner’s report, so far as it ascertains the liens and their priorities on the .debtor’s lands, ought not to be confirmed, because every creditor having a right to prove his debt before such commissioner may controvert the claim of any other lien-ereditor.”
When the cause was remanded, the question as to the .amount and priorities of these liens was left open, and the Circuit Court properly recommitted the cause to the •commissioner, for the purposes specified in its decree of 7th April, 1885.
The commissioner’s second report, with a single exception, report the same debts, in the same order of priority and for the same amounts, including interest accrued up to the 1st of March, 1886, except that the amount of the debt due the plaintiff and included in its judp^ment of $1,868.82, which was due to it on the 15th October, 1870, the time when the dwelling house was completed, was reduced to the sum of $205.48, with interest from that day amounting on the 1st March, 1886, to the sum of $394.86.
So much of this second report as ascertained and declared the amount and priorities of the liens on said house and lot, and upon the'1,212 acres and upon the lands fraudulently conveyed by A. H. Wilson to Martha E. Chilton was not excepted to; and but for an error appearing on the face thereof ought to be confirmed in these respects.
The commissioner in his report and the Circuit Court acting thereon upon the mistaken idea, that the existence of this debt of $394.86 was by the former decree of this court res juclieata, decreed that this debt, as well as the Blaine debt, was a lien on said “house and lot” on Broad street in the city of Charleston.
But it further appears from the face of said report, as well as the evidence returned with and made part thereof, that on the 15th October, 1870, when said dwelling house was completed, A. H. Wilson was not indebted to the plaintiff in any sum whatever, the court erred in declaring the same *658to be a lien on said house and lot, and charging the same with the payment thereof, and for this error the decree appealed from as to this debt, must be reversed, and the debt disallowed as a charge against the “house and lot.”
There is another error which although not appealed from, is apparent on the face of the decree, and which must be corrected, because it is clearly in conflict with the decision rendered by this Court on the former appeal. It was there adjudged, that while the Blaine debt was a lien on the “ house and lot, ” and was also a lien on all the 1,212 acres of land, yet the judgment liens reported were only liens on 1,070 acres, the residue of the 1,212 acres remaining after deducting the 142 acres conveyed to Mary A. Wilson prior to recovery of any of the judgments. It followed therefore,
. that the 142 acre tract could not in any event be made liable for any of the judgments, and could only be resorted to for satisfaction of so much of the Blaine debt as might remain unsatisfied by the application thereto of the proceeds of the sale of the “ house and lot ” and of the 1,070 acres of the 1,212 acres.
But by the decree of the 7th of April, 1886, it is adjudged, “ that if any of the Blaine trust debt shall remain unsatisfied out of the proceeds of the said “ house and lot,” then to satisfy such remainder, the special commissioners shall sell the 142 acres conveyed to Mary E. Wilson as aforesaid as well as the residue of the 1,212 acres.
So much of this portion of said decree as directs the special commissioners to sell the 142 acres, upon the contingency above stated is erroneous, must be reversed and amended by striking out the words, “ and that if any of said Blaine trust deed debt shall remain unpaid and unsatisfied out of the proceeds out of the said house and lot in the city of Charleston, ” and inserting in lieu thereof the words “ and if the proceeds arising from the sale of the house and lot in the city of Charleston and of the 1,070 acres be insufficient to pay and satisfy the Blaine trust debt. ”
We are of opinion, that the decree should be further corrected by striking out so much thereof as declares, that the said sum of $394.86 was an existing debt due from A. H. Wilson to the plaintiff, on the 15 October^ 1870, and that the *659same was a lien upon, said “ Rouse and lot, ” and tRe same is now here accordingly so corrected. We are further of opinion tRat all other questions sought to be raised by tRe appellant, Mary E. Wilson, are as to Rer res adjudieata, and can not now be disturbed. For the reasons hereinbefore stated, so much of the decree of the Circuit Court of Kanawha county, rendered herein on the 20th July, 1886, as adjudged the appellee, Mary E. Chilton, to be entitled to dower in the lands in her petition mentioned must be reversed, with •costs in this Court and in the Circuit Court to the appellant, the Kanawha Valley Bank, against said appellee; and that so much of said decree as dismissed the petition of said Meadows, Miles and Hill, and as directs the sale of any part •of said 1,212 acres of land, until the inquires hereinbefore directed can be made and the true state and condition of the title thereto ascertained and determined, must also be reversed with costs to the appellants, Meadows, Miles and Hill, against the Kanawha Valley Bank, and that the residue of said decree as hereinbefore amended and corrected must be affirmed, and that the Kanawha Valley Bank must pay to the appellant, Mary E. Chilton, the costs of her said •appeal. And this cause is remanded to the Circuit Court to be further proceeded in according to the principles settled in this opinion, and further according to the rules governing .courts of equity.
AFFIRMED IN PART. ' BeVERSED IN PART, BeMANDED.