GbeeN, PbesideNT,
delivered the opinion of the Court:
The first question presented by the record in this cause is: Did the court err in awarding the injunction of Syllabus . January 7, 1878, so far as it prohibited the executor of Montgomery Walker from selling the land under his will ? It seems to me obvious that this injunction ought not to have been awarded. It was done at the instance of the defendants, The National Bank of Wellsburg and John S. Beall. I can not see how it is possible they could have been inj ured by such sale. They suggest that owing to the widow’s claim of dower there would be a sacrifice of the property at such sale. If this were so, how could they be thereby injured? It would have been a sale pendente lite, and could therefore have in no manner incommoded them. There was no necessity to make the purchaser at such sale»a party to this suit, or to take any notice of him. He would of course have purchased subject to their prior lien by virtue of the deed of trust. If they were paid in full out of the sale, or otherwise, they would obviously have been benefitted, not injuredand if not paid in full, they could at the proper time have obtained in this suit a decree for the sale of the land to pay what was due to them, precisely as if such' sale had [673]*673not been made. If the widow thought proper to unite in this sale with the executor, and the debt due under the deed of trust either out of the proceeds of the sale or otherwise had been paid in full, the title of the purchaser at such sale would have been made perfectly good. There was therefore no propriety in enjoining this sale; and the injunction should be dissolved as improvidently awarded.
The next enquiry is : Were the necessary parties before the court to justify the court in making any decree for the sale of this land, or in deciding the controversy on its merits? They obviously were not. The widow having renounced the will, it is obvious that the widow and heirs or distributees, of Montgomery Walker, who were the same personsin this case his children and grandchildren, were entitled to'this land after the payment of the debts secured by the deed of trust and all other debts of M. Walker, or to the surplus of the sale of this land after the payment of these debts which were liens on it, and the other debts of M. Walker. For by the will of M. Walker the proceeds of the sale ot this land after the payment of his debts were given to his widow; and as she has renounced the will, they must go to the heirs or distributees of M. Walker, his children and grandchildren, except so far as his widow may have a right of dovver in the proceeds of such sale. There has been a question whether the personal representative of a mortgagor of land in fee, or the grantor in a deed of trust conveying land in fee, who occupy similar attitudes, is a necessary party, when a mortgage is to be foreclosed or the land sold by a decree of the court. In England it has been held he is not. See Story’s Eq. Pl., §175, p. 209, §186, p. 222, and authorities cited. See also Patton v. Page, 4 H. & M. 449. But it has been held by the Court of Appeals of Virginia that he ought to be made a party in such a suit. See Harrison v. Harrison, &c., 1 Call 419. There is however no question of this kind in this cause as the personal representative is the plaintiff in the suit; But all [674]*674the authorities agree that where the court.is foreclosing a 'mortgage of real estate in fee, or selling land conveyed in fee by a deed of trust, which is similar, the heir or devisee of the mortgagor is an indispensable party. See Story’s Eq. Pl., §196, p. 230; Fell v. Brown, 2 Bro. C. C. 276-278; Polk v. Clinton, 18 Ves. 48-58; Farmer v. Curtis, 2 Sim. 466; Graham’s ex’rs v. Carter, 2 H. & M. 6; Mayo v. Tompkins, 6 Munf. 520. It is equally clear that the widow, Jane Walker, is a necessary party to this cause. It is true that she is not entitled to dower in the real estate conveyed by the deed of trust as against the holders of the purchase-money notes, as held by the circuit court; but it is equally true she' is entitled to dower in the surplus of the sale of this land, after the debts secured by the deed of trust and the cost of this suit have been paid. See Hunter’s ex’r v. Hunter et al., 10 W. Va. Syllabus 1. 321, syl. 10.
The counsel in this case insist that she is entitled to dower in the land itself, as against the deed of trust in which she did not join. But as the deed of trust- was given to secure the payment of the purchase-money^ and was executed by the grantor of, the land simultaneously with the deed to him, he had no such seizin in the land as would entitle his widow to dower in said land, as against the debts secured by the deed of trust. In such ease it is Avell settled that the two deeds are regarded as a part of the same transaction, and the seizin of the grantor in the deed of trust is instantaneous and transitory, and his widow is not entitled to dower in the land itself. See Holbrook v. Fenney, 4 Mass. 566; Stow v. Fifft, 15 Johns. 458; Clarke v. Munson, 14 Mass. 351; Gilliam v. Moore, 4 Leigh 30. The decisions are admitted to be sound on common law principles; but it is claimed that these decisions are overruled and controlled by ch. 75, §1, p. 475, of our Code, which abolishes the vendor’s lien unless expressly reserved on the face of the deed. But it cannot possibly have the effect claimed ; for the vendor, or his assignee in this case, is not claiming un[675]*675der the implied vendor’s lien, but under the express lien created by the deed of trust. If, as it is admitted, the deed and deed of trust must, according to the above decisions, be regarded as a part of the same transaction, then the two taken together amount to an express reservation of the vendor’s lien in the deed by which the property was conveyed to the husband ; and the widow can have no dower except in the surplus after the payment of the purchase-money, as was decided in Hunter’s ex'r v. Hunter et al., 10 W. Va. 321. But being entitled to dower in this surplus, she is obviously a necessary party to this suit; and if there be such surplus, the court should direct in this suit her dower interest in such surplus to be paid to her. The court ought not therefore to have dismissed this suit as to her, but should have retained her'as a necessary party to the suit.
I have assumed that she had legally renounced her husband’s will. The bill alleged that she claimed dower in the land, and that she had renounced, or would at the first opportunity renounce the provisions for her in her husband’s will. The injunction afterwards prayed for by the defendants was founded on a statement in writing, in which they say they are informed she has renounced her husband’s will, and base their application for an injunction on this renunciation as a fact; and the decree of the court is based also on the assumption that she has renounced ijer husband’s will legally. Yet she has never answered the .bill, and no evidence of her having renounced the will has ever been filed. But whether she has renounced the will or not, she is an indispensable party to this suit, as the proceeds of the sale of this land is given to her by the will after her husband’s debts are all paid.
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GbeeN, PbesideNT,
delivered the opinion of the Court:
The first question presented by the record in this cause is: Did the court err in awarding the injunction of Syllabus . January 7, 1878, so far as it prohibited the executor of Montgomery Walker from selling the land under his will ? It seems to me obvious that this injunction ought not to have been awarded. It was done at the instance of the defendants, The National Bank of Wellsburg and John S. Beall. I can not see how it is possible they could have been inj ured by such sale. They suggest that owing to the widow’s claim of dower there would be a sacrifice of the property at such sale. If this were so, how could they be thereby injured? It would have been a sale pendente lite, and could therefore have in no manner incommoded them. There was no necessity to make the purchaser at such sale»a party to this suit, or to take any notice of him. He would of course have purchased subject to their prior lien by virtue of the deed of trust. If they were paid in full out of the sale, or otherwise, they would obviously have been benefitted, not injuredand if not paid in full, they could at the proper time have obtained in this suit a decree for the sale of the land to pay what was due to them, precisely as if such' sale had [673]*673not been made. If the widow thought proper to unite in this sale with the executor, and the debt due under the deed of trust either out of the proceeds of the sale or otherwise had been paid in full, the title of the purchaser at such sale would have been made perfectly good. There was therefore no propriety in enjoining this sale; and the injunction should be dissolved as improvidently awarded.
The next enquiry is : Were the necessary parties before the court to justify the court in making any decree for the sale of this land, or in deciding the controversy on its merits? They obviously were not. The widow having renounced the will, it is obvious that the widow and heirs or distributees, of Montgomery Walker, who were the same personsin this case his children and grandchildren, were entitled to'this land after the payment of the debts secured by the deed of trust and all other debts of M. Walker, or to the surplus of the sale of this land after the payment of these debts which were liens on it, and the other debts of M. Walker. For by the will of M. Walker the proceeds of the sale ot this land after the payment of his debts were given to his widow; and as she has renounced the will, they must go to the heirs or distributees of M. Walker, his children and grandchildren, except so far as his widow may have a right of dovver in the proceeds of such sale. There has been a question whether the personal representative of a mortgagor of land in fee, or the grantor in a deed of trust conveying land in fee, who occupy similar attitudes, is a necessary party, when a mortgage is to be foreclosed or the land sold by a decree of the court. In England it has been held he is not. See Story’s Eq. Pl., §175, p. 209, §186, p. 222, and authorities cited. See also Patton v. Page, 4 H. & M. 449. But it has been held by the Court of Appeals of Virginia that he ought to be made a party in such a suit. See Harrison v. Harrison, &c., 1 Call 419. There is however no question of this kind in this cause as the personal representative is the plaintiff in the suit; But all [674]*674the authorities agree that where the court.is foreclosing a 'mortgage of real estate in fee, or selling land conveyed in fee by a deed of trust, which is similar, the heir or devisee of the mortgagor is an indispensable party. See Story’s Eq. Pl., §196, p. 230; Fell v. Brown, 2 Bro. C. C. 276-278; Polk v. Clinton, 18 Ves. 48-58; Farmer v. Curtis, 2 Sim. 466; Graham’s ex’rs v. Carter, 2 H. & M. 6; Mayo v. Tompkins, 6 Munf. 520. It is equally clear that the widow, Jane Walker, is a necessary party to this cause. It is true that she is not entitled to dower in the real estate conveyed by the deed of trust as against the holders of the purchase-money notes, as held by the circuit court; but it is equally true she' is entitled to dower in the surplus of the sale of this land, after the debts secured by the deed of trust and the cost of this suit have been paid. See Hunter’s ex’r v. Hunter et al., 10 W. Va. Syllabus 1. 321, syl. 10.
The counsel in this case insist that she is entitled to dower in the land itself, as against the deed of trust in which she did not join. But as the deed of trust- was given to secure the payment of the purchase-money^ and was executed by the grantor of, the land simultaneously with the deed to him, he had no such seizin in the land as would entitle his widow to dower in said land, as against the debts secured by the deed of trust. In such ease it is Avell settled that the two deeds are regarded as a part of the same transaction, and the seizin of the grantor in the deed of trust is instantaneous and transitory, and his widow is not entitled to dower in the land itself. See Holbrook v. Fenney, 4 Mass. 566; Stow v. Fifft, 15 Johns. 458; Clarke v. Munson, 14 Mass. 351; Gilliam v. Moore, 4 Leigh 30. The decisions are admitted to be sound on common law principles; but it is claimed that these decisions are overruled and controlled by ch. 75, §1, p. 475, of our Code, which abolishes the vendor’s lien unless expressly reserved on the face of the deed. But it cannot possibly have the effect claimed ; for the vendor, or his assignee in this case, is not claiming un[675]*675der the implied vendor’s lien, but under the express lien created by the deed of trust. If, as it is admitted, the deed and deed of trust must, according to the above decisions, be regarded as a part of the same transaction, then the two taken together amount to an express reservation of the vendor’s lien in the deed by which the property was conveyed to the husband ; and the widow can have no dower except in the surplus after the payment of the purchase-money, as was decided in Hunter’s ex'r v. Hunter et al., 10 W. Va. 321. But being entitled to dower in this surplus, she is obviously a necessary party to this suit; and if there be such surplus, the court should direct in this suit her dower interest in such surplus to be paid to her. The court ought not therefore to have dismissed this suit as to her, but should have retained her'as a necessary party to the suit.
I have assumed that she had legally renounced her husband’s will. The bill alleged that she claimed dower in the land, and that she had renounced, or would at the first opportunity renounce the provisions for her in her husband’s will. The injunction afterwards prayed for by the defendants was founded on a statement in writing, in which they say they are informed she has renounced her husband’s will, and base their application for an injunction on this renunciation as a fact; and the decree of the court is based also on the assumption that she has renounced ijer husband’s will legally. Yet she has never answered the .bill, and no evidence of her having renounced the will has ever been filed. But whether she has renounced the will or not, she is an indispensable party to this suit, as the proceeds of the sale of this land is given to her by the will after her husband’s debts are all paid.
As the indispensable parties to this cause have not been brought before the court, the circuit court erred in hearing the cause, deciding it on its merits, and ordering a sale of this land. It should have directed the plaintiff to amend his bill, or have given him leave’so to do, making [676]*676the necessary parties, on pain of the dissolution of the injunctions awarded and a dismissal of the suit, unless the necessary parties were brought before the court in a reasonable time.
The order of the circuit court made in vacation of date January 7, 1878, so far as it enjoined and restrained the plaintiff in said cause from selling the laud or offering to sell the land in the deed of trust, or any other real estate of Montgomery Walker under his will, must be reversed, annulled and set aside; and also the decree of March 19, 1878, it being entered when the court had no right to hear the cause on its merits; and the appellant must recover of the appellees, The Wellsburg National Bank and John S. Beall, his costs in this Court expended ; and this cause is remanded to the circuit court with instructions to grant the plaintiff leave to amend his bill and make the necessary parties to this cause in a reasonable time on pain of having the suit dismissed at his costs, and the injunctions heretofore awarded dissolved, and to be further proceeded with according to the principles laid down in this opinion, and further according to the rules governing courts of equity.
The Other Judges CoNCurred.
Decree Reversed. Cause Remakded.