delivered the opinion of the court.
The bill in this case was filed by the appellant,' Mary L. Shufilebarger, seeking to have set aside a tax title deed dated December 23, 1899, from the clerk of the County Court of Washington county, conveying to appellee, Bessie B. Blanchard, a tract of land containing 31 aeres, 1 rood, and 2 poles, upon the ground of irregularities in the proceedings by which the deed was obtained, and, further, upon the ground of fraud in its procurement.
There was no error in the action of the Circuit Court in overruling the demurrer to the bill. The allegations of the bill furnish ample ground for the interposition of a court of equity, and the demurrer admitted their truth. The demurrer being overruled, appellee filed a plea of res judicata, in which she alleges that she obtained title to the land embraced in the deed of December 23, 1899, under and by virtue of another tax deed from the clerk of the County Court of Washington county, dated December 13, 1898; further alleging that this last-mentioned deed wás confirmed to her by the Circuit Court of Washington county by a decree entered on the 19th day of April, 1899, in the suit of J. H. Miller v. Wm. Shufflebarger, &c., and *696that appellant was a party to that suit, and had full opportunity therein to obtain the relief now sought in this suit; and therefore that the matters in controversy are res judicata as to her. Issue was joined upon this plea, and the Circuit Court sustained the contention of appellee, holding that the land in controversy, embraced in the deed of December 23, 1899, was covered by the deed of December 13, 1898, and dismissed the bffl.
It appears that appellee, as assignee of the rights of L. P. Summers, obtained from the clerk of the County Court of Washington county a deed dated December 13, 1898, to 60 acres of land, described by metes and bounds.. It further appears that on the 23d day of December, 1899, appellee obtained from the same clerk a second deed of the last-named date conveying to her 34 acres, 1 rood, and 2 poles, which is likewise described by metes and -bounds. These two deeds purport to be executed, in pursuance of the statute, for land sold and bought in by the Commonwealth for taxes. They are practically in the same words, except the amount and description of the land mentioned in each. As already shown, the deed of 1898 conveys 60 acres, while the deed of 1899 conveys 34 acres, 1 rood, and 2 poles. There is nothing in the description by metes and bounds to suggest that the larger tract embraces the smaller; on the contrary, it would seem that such was not the case, as the outside boundaries of the larger tract make it, at certain points, bounded by the Pinley Shaffer land, which is the smaller tract, or land in controversy.
There is in the record a deed dated December 16, 1879, from Joseph Booker, of the county of Washington, which conveys to the widow and heirs of Bob.ert Kindrick—the widow mentioned being the appellant here—a tract of land containing 60 acres, described as the land of one James Shaffer. The metes and bounds given in this deed are exactly the same as those in the deed dated December 13, 1898, from the clerk to the appellee, *697and show that the 60-acre tract is bounded at several points by the land of Finley Shaffer.
There is also in the record a deed dated February 22, 1901, ¡from Finley Shaffer to the widow and heirs of Robert Kindrick, .conveying to them a tract of land containing 34 aeres, 1 rood, and 2 poles. This deed states that it is in lieu of a lost deed to the same land made to Robert Kindrick in his lifetime. The metes and bounds given in this deed are practically the same as those given in the deed dated December 23, 1899, from the clerk conveying to the appellee the 34 acres, 1 rood, and 2 pole tract.
These two deeds show that the land in controversy, 34 acres, 1 rood, and 2 poles, is an entirely different tract of land from the 60-acre tract, and was derived by the appellant from an entirely different source.
The record in the case of Miller v. Shufflebarger, which is the sole evidence relied on in support of the plea of res judicata, wholly fails to sustain such plea. The bill in that case was filed to subject to sale a tract of 60 acres of land. The allegation is that the debtor owned a tract of 60 acres, describing it as the James Shaffer land, and the same conveyed by Joseph Booker to the widow and heirs of Robert Kindrick. The commissioner to whom the cause was referred reports that the land sought to bp subjected in that suit had been sold for taxes, and conveyed to appellee by deed dated December 13, 1898; thus identifying the land embraced in the last-mentioned deed as the Booker land, derived from James Shaffer. And the final decree of April 19, 1899, brings the cause on upon the commissioner’s report, and the deed from the clerk to the appellee for the 60 acres, and, recognizing that said deed defeated the object of the suit, dismissed the cause at the cost of the complaining creditor. There is nothing in the record of Miller v. Shufflebarger to show that the tract of land containing 34 acres, 1 rood, and 2 poles was involved in that suit, or that the *698parties thereto could have, or were • called upon. to litigate therein, any right or question with respect thereto. If it be true, as contended by appellee, that her first deed to 'the 60-acre tract covers and embraces the 31 acre, 1 rood, and 2 pole tract now in controversy, the -record affords no explanation-of the apparently unnecessary course of afterwards obtaining a second deed to part of the same land already covered by the first.
Upon the whole case, we are of opinion that the plea of res judicata was not sustained, and that appellant was „ not •estopped by the record of Miller v. Shufflebarger to maintain her present suit.
For these reasons the decree complained of must be reversed, and the cause remanded to-the Circuit Court for further proceedings to be had therein, not in conflict with the views expressed in this opinion.
Reversed.