Moore, Judge,
delivered the opinion of the Court:
I approve of Lord Eldon’s view in Young v. Keighly, 16 Ves. 348, 350, that “The ground of a bill of review [123]*123is error apparent on the face of the decree, or new evidence of a fact materially pressing upon the decree and' discovered at least after publication in the cause.” And this view is clearly enunciated in Bowyer v. Lewis, 1 H. & M. 554, where Judge Tucker makes reference to the authorities cited in Mitfordks Chancery Pleadings, 78 to 84, and states, that they “ clearly show, that a bill of review, properly so-called, is granted only after a final decree, either upon error in law appearing in the body of the decree itself, or upon discovery of new matter.” That declaration of the doctrine is only the repetition of Mitford’s enunciation of the object of a bill of review, viz: that it “ is to procure an examination and reversal of a decree made upon a former bill and signed by the person holding the great seal and enrolled. It. may be brought for error of law appearing in the body of the decree itself, or upon discovery of new matter.” The same doctrine is laid down by this Court in Nichols v. Heirs of Nichols, 8 W. Va. 174, where it is held, that “ a bill of review lies to have a final decree- of the court revised, altered or reversed,” and that “such a bill lies in two classes of cases, viz: upon error in law appearing in the body of the decree itself, or upon discovery of new relevant, material matter, or material evidence not known prior to the decree sought tobe reviewed, and which could not have been discovered by the exercise of reasonable diligence,” * * * “ although, ordinarily, a bill of review will not lie, where the newly discovered evidence is simply confirmatory or cumulative.”
The view I take of this case does not render it necessary to draw the distinction between a bill of review and a bill in the nature of a bill of review, or, as it is sometimes designated, a supplemental bill of review, because the bill in this case attacks the final decree in the original case directly for errors apparent in the body of the decree itself; and if such errors in fact exist, then there can be no question, that the bill exposing them is in the nature of a writ of error, and thus shows itself as a bill of review under the strictest authority.
[124]*124But before entering upon the dissection oí the final decree it will be well to cite the law as settled in this State upon the vital questions, as I conceive them to be, involved in this case. The case of Laidley v. Kline, adm’r, 8 W. Va. 218, settles four cardinal principles, which, I think, affect this case. Those principles are: 1st. “The real estate of an intestate in nowise and for no purpose goes into the possession or control of the administrator; but the legal title to the same descends directly to the legal heirs, subject of course to the just debts of the intestate, in so far at least as the personalty falls short of paying the same. 2d. A judgment obtained by a creditor against the administrator is not a judgment-lien on the realty of the intestate. 3d. Generally, the court should not decree the sale of the realty of an intestate to pay debts or judgment-liens before the accounts of the administrator have been settled and the unadministered assets ascertained. 4th. Unless the widow of an intestate elects in a proper manner to take the value of her dower in the real estate, which her husband owned at his death, her dower should be assigned to her in the realty before sale thereof for the payment of the intestate’s debts. 5th. There being no privity between the personal representative and the party, to whom the real estate has descended or been devised, a judgment against such personal representative is not even prima facie evidence against the heir or devisee.”
The decree of November, 1868, states, “ that thejudgment for $352.76, with interest thereon from the 17th day of February, 1860, as set out in the complainant’s bill, is not a lien on the whole tract of one hundred and seventy-two acres of land described in exhibit CC’ filed with the bill; but according to exhibit No. 2, filed with defendant’s answer, the said judgment was to be confessed for the amount aforesaid, and whereas a decree should be had to enforce against seventy-two acres of said land said judgment, and, when sold, the coup plainant was to bid the same to $239.76, it is a lien, [125]*125therefore, on the seventy-two acres of land on the east end thereof.” The decree then proceeds to adjudge, “that unless the said D. W. Sayre, administrator pf JDavid Custer, deceased, do pay to the complainant, administrator of Mark Custer, deceased, the judgment confessed as aforesaid with interest from the 17th day of February, 1860, and the costs of this suit within thirty days from this date,- the said IT. W. Flesher, who is hereby appointed special commissioner for that purpose, shall, &c., * * proceed to sell, &c., the seventy-two acres of land.
The exhibit “ C ” filed with the original bill is the deed from Mark Custer to his son, David Custer; and the exhibit No. “ 2” filed with D. W. Sayre’s answer to the original bill is the agreement between the two administrators, and is as follows:
“ It is agreed between J. P. Custer, administrator of Mark Custer, deceased, and D. . W. Sayre, administrator of David Custer, deceased, that said Sayre, administrator as aforesaid, is to confess judgment for $352.76 which is due upon land, and that wben there is a decree to sell .the land, it is only to go against the seventy-two acres, and not against the whole one hundred and seventy-two And said Custer is to bid the seventy-two acres to the sum of $237.76 at the sale, and not to trouble the realty for the residue, but to look to the personalty for the rest of the debt.
“ Witness our hands and seals, February 15, 1860.
“ John P. Custer, [Seal.]
“D. W. Sayre, [Seal.]”
The decree showing upon its face, that it was enforcing as a lien against the seventy-two acres of land, that had descended to the complainants in the bill of review from their father, David Custer, deceased, being part of the one hundred and seventy-two acres of land, of which said David died seized, and in which the widow was entitled to dower, a judgment confessed by D. W. Sayre, administrator, &c., in favor of John. P. Custer, admis-[126]*126trato r, &c., in pursuance of the foregoing agreement, brings the case clearly within the principles of the authorities cited, and makes a proper case for a bill of review. Such a judgment is not a lien upon the land, and should not be enforced against the land. The agreement is made a part of the decree by the decree itself, and it shows upon its face, that it is not such an agreement, as administrators could enter into, so as to bind the heirs; and to enforce a confessed judgment rendered upon it against the lands, that have descended to heirs and in which the widow is entitled to dower, would open the door to fraud ■ and besides the widow and children of the intestate are in no wise privy to the agreement, and cannot be prejudiced by any judgment thereon, however it might affect the administrator himself.
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Moore, Judge,
delivered the opinion of the Court:
I approve of Lord Eldon’s view in Young v. Keighly, 16 Ves. 348, 350, that “The ground of a bill of review [123]*123is error apparent on the face of the decree, or new evidence of a fact materially pressing upon the decree and' discovered at least after publication in the cause.” And this view is clearly enunciated in Bowyer v. Lewis, 1 H. & M. 554, where Judge Tucker makes reference to the authorities cited in Mitfordks Chancery Pleadings, 78 to 84, and states, that they “ clearly show, that a bill of review, properly so-called, is granted only after a final decree, either upon error in law appearing in the body of the decree itself, or upon discovery of new matter.” That declaration of the doctrine is only the repetition of Mitford’s enunciation of the object of a bill of review, viz: that it “ is to procure an examination and reversal of a decree made upon a former bill and signed by the person holding the great seal and enrolled. It. may be brought for error of law appearing in the body of the decree itself, or upon discovery of new matter.” The same doctrine is laid down by this Court in Nichols v. Heirs of Nichols, 8 W. Va. 174, where it is held, that “ a bill of review lies to have a final decree- of the court revised, altered or reversed,” and that “such a bill lies in two classes of cases, viz: upon error in law appearing in the body of the decree itself, or upon discovery of new relevant, material matter, or material evidence not known prior to the decree sought tobe reviewed, and which could not have been discovered by the exercise of reasonable diligence,” * * * “ although, ordinarily, a bill of review will not lie, where the newly discovered evidence is simply confirmatory or cumulative.”
The view I take of this case does not render it necessary to draw the distinction between a bill of review and a bill in the nature of a bill of review, or, as it is sometimes designated, a supplemental bill of review, because the bill in this case attacks the final decree in the original case directly for errors apparent in the body of the decree itself; and if such errors in fact exist, then there can be no question, that the bill exposing them is in the nature of a writ of error, and thus shows itself as a bill of review under the strictest authority.
[124]*124But before entering upon the dissection oí the final decree it will be well to cite the law as settled in this State upon the vital questions, as I conceive them to be, involved in this case. The case of Laidley v. Kline, adm’r, 8 W. Va. 218, settles four cardinal principles, which, I think, affect this case. Those principles are: 1st. “The real estate of an intestate in nowise and for no purpose goes into the possession or control of the administrator; but the legal title to the same descends directly to the legal heirs, subject of course to the just debts of the intestate, in so far at least as the personalty falls short of paying the same. 2d. A judgment obtained by a creditor against the administrator is not a judgment-lien on the realty of the intestate. 3d. Generally, the court should not decree the sale of the realty of an intestate to pay debts or judgment-liens before the accounts of the administrator have been settled and the unadministered assets ascertained. 4th. Unless the widow of an intestate elects in a proper manner to take the value of her dower in the real estate, which her husband owned at his death, her dower should be assigned to her in the realty before sale thereof for the payment of the intestate’s debts. 5th. There being no privity between the personal representative and the party, to whom the real estate has descended or been devised, a judgment against such personal representative is not even prima facie evidence against the heir or devisee.”
The decree of November, 1868, states, “ that thejudgment for $352.76, with interest thereon from the 17th day of February, 1860, as set out in the complainant’s bill, is not a lien on the whole tract of one hundred and seventy-two acres of land described in exhibit CC’ filed with the bill; but according to exhibit No. 2, filed with defendant’s answer, the said judgment was to be confessed for the amount aforesaid, and whereas a decree should be had to enforce against seventy-two acres of said land said judgment, and, when sold, the coup plainant was to bid the same to $239.76, it is a lien, [125]*125therefore, on the seventy-two acres of land on the east end thereof.” The decree then proceeds to adjudge, “that unless the said D. W. Sayre, administrator pf JDavid Custer, deceased, do pay to the complainant, administrator of Mark Custer, deceased, the judgment confessed as aforesaid with interest from the 17th day of February, 1860, and the costs of this suit within thirty days from this date,- the said IT. W. Flesher, who is hereby appointed special commissioner for that purpose, shall, &c., * * proceed to sell, &c., the seventy-two acres of land.
The exhibit “ C ” filed with the original bill is the deed from Mark Custer to his son, David Custer; and the exhibit No. “ 2” filed with D. W. Sayre’s answer to the original bill is the agreement between the two administrators, and is as follows:
“ It is agreed between J. P. Custer, administrator of Mark Custer, deceased, and D. . W. Sayre, administrator of David Custer, deceased, that said Sayre, administrator as aforesaid, is to confess judgment for $352.76 which is due upon land, and that wben there is a decree to sell .the land, it is only to go against the seventy-two acres, and not against the whole one hundred and seventy-two And said Custer is to bid the seventy-two acres to the sum of $237.76 at the sale, and not to trouble the realty for the residue, but to look to the personalty for the rest of the debt.
“ Witness our hands and seals, February 15, 1860.
“ John P. Custer, [Seal.]
“D. W. Sayre, [Seal.]”
The decree showing upon its face, that it was enforcing as a lien against the seventy-two acres of land, that had descended to the complainants in the bill of review from their father, David Custer, deceased, being part of the one hundred and seventy-two acres of land, of which said David died seized, and in which the widow was entitled to dower, a judgment confessed by D. W. Sayre, administrator, &c., in favor of John. P. Custer, admis-[126]*126trato r, &c., in pursuance of the foregoing agreement, brings the case clearly within the principles of the authorities cited, and makes a proper case for a bill of review. Such a judgment is not a lien upon the land, and should not be enforced against the land. The agreement is made a part of the decree by the decree itself, and it shows upon its face, that it is not such an agreement, as administrators could enter into, so as to bind the heirs; and to enforce a confessed judgment rendered upon it against the lands, that have descended to heirs and in which the widow is entitled to dower, would open the door to fraud ■ and besides the widow and children of the intestate are in no wise privy to the agreement, and cannot be prejudiced by any judgment thereon, however it might affect the administrator himself. It is the duty of a court of chancery to protect the interests of widows and infants in such eases, and although the bill to enforce su.ch a judgment should properly have been demurred to, it was nevertheless the duty of the court to have dismissed the bill for the want of equity.
Syllabus 1.
Syllabus 2.
The court having carried into decree the prayer of the bill contrary to the law and the rules governing courts of equity, as is apparent upon the face of the decree, it has erred; and a bill of review is proper to correct it.
Taking this view of the case, it is not necessary to consider the other questions presented by the appellants, as from what has already been presented, it must follow, that under the bill of review the court erred in referring the cause to a commissioner, and erred in not sustaining the bill of review on the final hearing, and in not reversing the decree, which it was filed to review.
I am, therefore, of opinion that the decree of the circuit court of Wood county, made on the 14th day of March, 1877, should be reversed with costs, the .bill of review sustained, and the decrees of the circuit court of Jackson county sought to be reviewed thereby, viz.: the decree of November term, 1868, and the decree of March 4, 1870, confirming the commissioner’s sale of [127]*127the seventy-two acres of land, and directing the conveyance thereof to the purchaser, John P. Custer, be reversed, set aside and annulled, and the original bill filed by said John P. Custer be dismissed, with costs, and the deed from commissioner Johnson to him be cancelled. But nothing in this decree shall prejudice John P. Custer, administrator of Mark Custer, deceased, from instituting any suit as a creditor of David Custer, deceased, that he may be advised to bring, to subject the real and personal property of David Custer, deceased, to the payment of any debts that said David may have owed to the said Mark Custer, his intestate, at the time of said David’s death.
Decree Reversed.
Judges Haymond and Green Concurred.