DISSENTING OPINION.
Nichols, J.I do not concur in the majority opinion. It will be observed that' in the administrator’s petition for sale, it was averred that his decedent was the owner of all the real estate involved at the time of his death. This was a necessary averment under the statute. Without such an averment and a finding of the court to that effect, there would have been no valid order for the sale of the undivided two-thirds thereof; for, as there was a widow, under the statute she owned the undivided one-third of the real estate of which her husband died seized, and this was not subj ect to sale to pay debts. Hutchinson v. Lemcke (1886), 107 Ind. 121, 8 N. E. 71. *612The title to the whole tract was therefore necessarily involved here. Unless the administrator’s decedent owned the whole tract, the administrator could not be authorized to sell the undivided two-thirds. The court having found, as it necessarily had to do to sustain the order of sale, that the administrator’s decedent owned the whole tract at the time of his death, the court by such finding in effect found that the widow, who was a party to the action, owned the undivided one-third. It is sufficient to.sustain a plea of res adjudicata if the fact here involved was essential to the finding and order of the court in the first action. This rule is substantially stated in Herman, Estoppel and Res Adjudicata §246. The same author in §247 again gives us the rule that “the estoppel of a judgment extends beyond what appears on its face; it includes every allegation made by the plaintiff and denied by the defendant.” The children, James M. and Freída Lowe, together with the widow, were made parties to the proceeding to sell, and by their guardian ad litem answered in general denial. This put in issue the averment of the petition that the administrator’s decedent was the owner of the whole tract of real estate involved at the time of his death, and necessarily, as a result of such issue under the law, the right of the widow to the undivided one-third thereof.
. So far as title is concerned, in order to contest the administrator’s right to sell the two-thirds, the defendants James M. and Frieda Lowe, must of necessity, contest their father’s title to the whole tract at the time of his death, and this involved a contest of the mother’s right to the one-third as widow. Under the general denial which was pleaded in their behalf they could have put in evidence the deed from the grandfather, and any other matter that would have shown their title other than as heirs,, and that would have defeated the title of *613the administrator’s decedent. The evidence in the former trial is not in the record, and the presumption is that the finding and order of the trial court was based upon sufficient evidence. At the time of his death, appellee and her husband wefe in possession of the real estate involved, under a contract of purchase and for a deed under certain conditions with which he had complied up to the time of his death. His equitable interest in the land could and may have been confirmed to his heirs by subsequent adjustment, all of which may have been before the court. Under the statute, she was entitled to one-third of the lands in which her husband had an equitable interest, at the time of his death, and the court by its finding and decree gives her this interest and nothing more. She was not deprived of this interest by the deed executed by her father-in-law.
Had the heirs aforesaid prevailed in their contest, they would have established not only their title to the undivided two-thirds as against the administrator, but also their title to the undivided one-third here involved. Having failed to so contest, or failing in their contest, they are now precluded. The case of Armstrong v. Hufty (1899), 156 Ind. 606, 55 N. E. 443, 60 N. E. 1080, mentioned and discussed in the majority opinion, reading on pp. 613, 614, discusses the general principle as to res ad judicata. We may here remark that what-is said with reference to such heirs being precluded from maintaining any subsequent action, was said independent of any fact with reference to their having received in final settlement any distributive share of their mother’s estate.
It has been many times held that a judgment is an adjudication upon all the matters of law and fact which are essential to support it. St. Joseph Union Depot Co. v. Chicago, etc., Co. (1898), 89 Fed. 648, 32 C. C. A. 284; Perry v. King (1898), 114 Ala. 533, 23 South. 783; *614State, ex rel. Hospes v. Branch (1896), 113 Mo. 592, 36 S. W. 226, 56 Am. St. 533; Daniel v. Gum (1897), (Tenn.) 45 S. W. 468; State v. Ortiz (1906), 99 Tex. 475, 90 S. W. 1084; Kelly v. Hamblen (1900), 98 Va. 383, 36 S. E. 491; Bodkin v. Arnold (1898), 45 W. Va. 90, 30 S. E. 154; Coutant v. Feaks (1834), (N. Y.) 2 Edw. Ch. 330; Willis v. Tozer (1895), 44 S. C. 1, 21 S. E. 617; Corrothers v. Sargent (1882), 20 W. Va. 351. This principle is clearly stated in the case of Armstrong v. Hufty, supra, where on p. 616, the court says: "If there is an issue in such a case, or a fact indispensably necessary to be found in order to entitle the plaintiff to recover, which, if it exists, bars evéry right of such person, whether as an heir or otherwise,-then a finding and judgment against such person concludes him, not only from asserting any right as the heir of the person alleged, but from every right whether it grows out of such heirship or not.”
The majority opinion cites the case of Leaman v. Sample (1883), 91 Ind. 236, on the principle that where one of the defendants made an issue with the plaintiff, the judgment settling the issue so made in favor of such defendant does not determine the question between the codefendants. In that case one of two sureties presented the question of his suretyship asking certain relief, while the other surety did not file such an answer or ask such relief. There was an adjudication in favor of the first surety and granting him the relief, while no relief was granted to the second surety. Suppose that both sureties had filed respective answers praying for the same kind of relief, and that the court by the special finding had found that they were both sureties and had granted the relief for.which they prayed; Could they have thereafter been heard to litigate the question of the suretyship as between themselves? In the case at bar, the widow and'the children were before the court *615by due process, and the children' answered in general denial, thereby presenting the question as to the ownership of the land, two-thirds of which' the administrator sought to sell, and the court, in finding that the administrator’s decedent owned the land thereby found for the widow as to the undivided one-third, and against the children as to such interest. For the widow to litigate this question again with her children or their creditors when it had been settled by the necessary finding in the previous action upon which a final judgment and order of sale had been based, seems to me to be a useless proceeding.
The case of Whitesell v. Strickler (1906), 167 Ind. 602, 78 N. E. 845, 119 Am. St. 524, was an action by the widow, against the administrator of her husband’s estate and her children, to set aside her election to take under the law on the ground of fraud. There was a plea of res adjudicate/,, the basis of which was an action by the administrator to sell the undivided two-thirds of the husband’s real estate, in which it was alleged that the widow had elected to take under the law, which she admitted. In that proceeding, however, she did not present the question of fraud, and it was held that the plea of res adjudioata could not prevail for the reason that the parties were not the same and the subject-matter of the action was entirely different. The case is clearly distinguished from the instant case, as I think each and every one of the cases cited by the majority opinion may be, by showing that the circumstances of each of the eases were different from those here involved. In this case there could have been no valid order of sale of the undivided two-thirds of the real estate involved without a finding following the averment that the whole tract belonged to the decedent, which is equivalent to a decision that the widow owned the undivided one-third. The order of sale here involved of necessity involves the title *616to the whole tract, which includes the widow’s share.It is argued in the majority opinion that there was no issue between appellee and her children in the former action, and therefore the question of title to the undivided one-third not sold was not determined. The case of Young v. Stevens (1902), 28 Ind. App. 654, 63 N. E. 721, announces the principle which, as it seems to me, meets the argument of the maj ority opinion. In that case the payee of a note sued the principal and sureties thereon, and also included in this action as defendant, the holder of a mortgage which was executed by the principal, and sought to have the mortgage declared fraudulent and void as against" the principal’s creditors, including the payee of the note. The sureties were defaulted. The holder of the mortgage answered and filed a cross-complaint against the principal and the payee. The sureties were not made parties to such cross-complaint. There was therefore no issue between the sureties and the holder of the mortgage. Such mortgage was held valid and foreclosed on the cross-complaint. Afterward the sureties paid the note, and in a subser quent action for the recovery of the amount paid by them sought to have the mortgage declared fraudulent as to creditors. It was held in that case that the sureties were bound by the adjudication in the former action. The principle here involved is directly rn point. As it seems to me, under the state of the record in the first proceeding, appellee’s children could not have maintained a subsequent action against her for title to the one-third, and if they were concluded, the judgment which concluded them must also conclude their privies, one of whom is the appellant herein. In my opinion the judgment should be affirmed and I therefore dissent from the majority opinion.