Gkeeh, Judge:
The first decree in this cause claimed to be erroneous is that of October 18,1873. This decree set aside the sale made by the trustee on May 9, 1868. This action of the court, as shown by the decree, was based on depositions, which have not been copied into the record, as they should have been; but from what is incidentally proven in the cause subsequently, I infer that there is a strong probability that the omitted deposition fully justified the court in setting aside the sale. I should have deemed it necessary for this Court of its own motion to issue a writ of certiorari requiring the clerk to send up these omitted portions of the record, if the counsel in the cause before this Court in their argument had not all in effect admitted the correctness of this decree in this respect. It was what the appellants asked in their pleadings, and what the appellees all asked in their pleadings, so far as they pleaded at all, except the two Shumates; and they by their counsel have strenuously insisted in argument, that [498]*498there was no error of any sort in this decree of October 18, 1873. Under these circumstances I have deemed it unnecessary to delay the decision in this case by having such writ of certiorari issued, and regard this portion of the decree as admitted by all the appellants and appellees to be correct.
The court in this decree also decides, that this parcel of land, which it decreed to be re-sold, was subject to the widow’s dower. This is not disputed by the appellants, but they insist, that the court ought to have it laid off by metes and bounds, before it was ordered to be re-sold. The appel-lees’ counsel, while very feebly claiming that the widow had waived her right of dower, insist that it was not necessary to lay the land off by metes and bounds, before it was ordered to be sold, and claim that under section 12 of chapter 65 of Code of West Virginia, page 445, she was not entitled to have her dower laid off by metes and bounds at all, as the giving of the deed of trust by her husband was an alienation by him within the meaning of this section. But the court of appeals of Virginia' has long since settled this question in McCauley v. Dismal Swamp Co., 2 Rob. R. 507, in which the court held, that when a husband makes a deed of trust conveying land to a trustee to secure debts, and the husband remains in possession till his death, no sale by the trustee being made in his lifetime, the husband is to he considered as having died seized of the land subject to the deed of trust, so that the widow, if she did not join in the deed of trust, is entitled to dower in like manner, as if the deed had not been made; and therefore of course she has a right to have her dower assigned her in kind and by metes and hounds. This right the widow in this case has never waived; nor is there any just ground for claiming that she has waived her right of dower. On the contrary her right seems to have been admitted, when she was permitted to remain in possession of the land, till this suit was brought. Her right to dower still continued, unless she had been deprived of it by a jointure for her in her husband’s will. The will of her husband gave to her “a sufficiency to maintain her during her natural life.” The record shows, that the testator left a small personal estate consumed in the payment of his debts and funeral expenses, a small parcel of land known as the Maud Hollow [499]*499Place, worth but little more than five hundred dollars and a large tract of land principally wild containing about two thousand acres worth some six or seven thousand dollars, on which was a deed of trust to secure a debt amounting when the will was made and the testator died to about four thousand three hundred dollars. He gave by his will specific legacies to his children amounting to about one thousand four hundred dollars; and then the will provides after the paying of these legacies: “If there be a remainder, I desire it equally divided between my children named.”
The Code of'West. Virginia chapter 65 section 4 page 443 provides, that “if any estate real or personal intended to be in lieu of her dower shall be devised for the jointure of the wife, such devise shall bar her dower of the real estate.” The question then is: Was this provision of the will'in her favor intended to be in lieu of dower ? If so, she is not entitled to dower; otherwise, she is. In ascertaining this intention, as in any other case in seeking the intention of a testator, we have a x-ight to look to the situation of the testator and the circumstances surrounding him, when he wrote the will. See Ambler v. Norton, 4 H. & M. 23. From the pecuniary circumstances of the testator, when he wrote his will, he must have known, that the value of his widow’s dower in all his real estate would considerably exceed the entire value of his real and personal estate after the payment of his debts, and that in fact his debts were, as he well knew, so large, that after the payment of them the estate left, out of which, if she abided by the will and gave up her dower, she would have received her support during life, would have been so small, that she could not possibly have received such support from it. He could therefore hardly have intended this inadequate provision for her to have been in lieu of her dower, as the value of her dower, he must have known, greatly exceeded the value of this inadequate provision, a provision rendered inadequate by reason of his large indebtedness, an indebtedness, he well knew, when he wrote his will, as a large part of it was a single debt secured by a deed of trust executed less than six months before his will was written and he died. As a testator by his will is supposed to bestow bounties, it can hardly he supposed, that he intended this [500]*500provision in bis will for bis wife to be in lieu of ber dower, when he must have known, that ber dower was worth to ber far more than this provision and indeed more than bis whole estate after the payment of bis debts. Had be not owed this large debt secured by this deed of trust, this provision might perhaps have been regarded as a provision intended by him to be in lieu of her dower; but under the circumstances existing in this case the circuit court did not err in giving to this will the construction, that this provision for his wife was not intended by the testator to be in lieu of her dower. The court therefore did not err in deciding, that she was entitled to dower in kind in the land, which it ordered to bo sold. I am confirmed in this opinion, that site was entitled to dower in this land from the fact, that neither the appellants nor the appellees have argued before this Court, that this provision in the will was a jointure.
The next enquiry is: Did the court err in not laying off her dower by metes and bounds, as the appellants insist, before it ordered a sale of this land ? There has been no express decision in Virginia that I know of on this point; but upon a principle analogous to that acted upon and recognized in Coles’ Adm’r v. McRae, 6 Rand. 644, Cralle v. Meene, 8 Gratt. 496, Buchanan v. Clark, 10 Gratt. 164, Iaege v. Boissieux, 15 Gratt. 83, Howery v. Helms, 20 Gratt. 1, and Lipscomb v. Rogers, 20 Gratt. 658, it would seem necessary before a sale is made, that the dower of the widow should be set out, so that a purchaser may know, what part will pass at once into his possession, and what not until her death, or that a valid arrangement be first made dispensing with her right to have dower in kind in the land. These views have 'been very properly, I think, regarded and acted upon as law in this State. See Laidley v. Kline, 8 W. Va. 229; Underwood’s Ex’r v. Underwood’s Heirs, supra. The circuit court therefore erred iu the decree of October 18, 1873, in directing the sale of this land, before it had by metes and bounds assigned the widow’s dower; and had the appellants appealed before the sale made under this decree had been confirmed, this decree must have been reversed. But § 8 of ch. 133 of Code of West Virginia p. 630 provides, that “if a sale of property be made under a decree or order of a court, and [501]*501such sale be confirmed, though such decree or order be after-wards reversed or set aside, the title of the purchaser shall not be affected thereby; but there may be restitution of the proceeds of sale to those entitled.”
In construing the above statute this Court has determined, that, if before the confirmation of a sale the report of sale be excepted to, on the ground that the decree ordering the sale is erroneous, and it clearly appears to the court, that the sale of the land was materially affected thereby, and that it brought materially less than it otherwise would have brought by reason of this error in the decree of sale, the.court should refuse to confirm the sale; and if it be confirmed, the Appellate Court will reverse the decree confirming the sale as well as the decree ordering the sale. See Trimble’s Adm’r v. Herold, 20. W. Va. 602.
The land in this cause was sold under this erroneous decree of October 18,1873, and at the sale Rufus A. Shumate became the purchaser; but there was no exception to the report of the sale because of this error in the decree ordering the sale, nor was there any proof or even allegation, that, the land brought materially less by reason of this error, or that any person was prevented from bidding because of an unwillingness to purchase the land subject to the widow’s dower, before it had been assigned to her by metes and bounds. And as the circuit court confirmed the sale, we can not for this reason set aside this sale nor in this respect reverse the decree of October 18, 1873, for this error. It has in effect been waived by the parties interested, all failing to take an appeal before the confirmation of the sale made under this decree and failing to object to confirmation of this sale because of this error, or to prove that the sale was in any degree prejudiced by this error. It would seem too that under the effect of this law, as construed by this Court, it is almost idle to consider further, whether there was any error in this decree of October 18, 1873, ordering this sale. For the sale under it being excepted to for no error in the decree, and no proof having been offered showing that the land was sold for any less by reason of any error in the decree, if we hold that the confirmation of the sale was proper in other respects we can not for such error reverse this decree ordering such sale. [502]*502All errors in it would have to be regarded as cured or waived by tbis conduct of the appellants and of all others. But we will say, that we find in this decree but one other possible error, even had it been appealed from before the confirmation of the sale made under it, that is, the failure of the court to require a bond of the commissioner, as required by law. But as the law then was, the commissioner was not required to give such bond before the sale; and the sale was not excepted to on that account, and there is no reason to believe, that the land sold for any less because of this omission.
In the argument of the counsel for the appellants other errors in this decree of October 18, 1878, were claimed to, exist, as for instance, that the amount due on the deed of trust was not first ascertained. This is simply a mistake of the counsel; the bill stated distinctly the amount, and the answer admitted that the amount stated in the bill was correct. This amount was four thousand one hundred and ninety-seven dollars and seventy-one cents with interest from April 1,1860, subject to a credit of four thousand two hundred and twenty-six dollars and eighty cents as of August 9, 1867. It is claimed too, that it was error to decree the sale of the whole land. The sale when made showed, that all of the land was required to be sold in order to pay the lien upon it. Of course it was proper in such case to order the sale of the whole tract of land. One of the appellants, Lockey E. Tracey, in her bill asks the court to direct a sale of said lands upon such terms, as may to the court scorn equitable, and proper, and yet her counsel complains, that this land was sold by the court on credits instead of for cash, as the deed of trust required. The interest of the other appellants was the same in this respect as hers, and this sale being made on credit was obviously promotive of their interest, and they can not complain thereof. There is no error in this decree of October 18, 1878, for which it can be reversed.
But on October 25, 1878, the court rendered a decree appointing John A. Douglass a commissioner to convey to the Shumates the interest of all the defendants other than those who joined in the deed of August 9,1867, in the land named in that deed known as the compromise land, omitting only Minerva Dean by mistake, which was corrected in the decree [503]*503of May 30, 1877. Most of these interests in the one thousand five hundred acres of land thus ordered to be conveyed belonged to infants, and the court assumes, that they held simply the legal title to this land, and that the compromise and deed of August 9, 1867, conferred on the Shumates the equitable title to this land. I cannot see how it did. None of these parties, whose interest are thus summarily ordered to be conveyed to the Shumates, were parties to either this deed or this compromise, and we do not know from this record, that any of them but one had any knowledge of this compromise till after it was made. How then can they, and especially the infants, be compelled to convey their land because of this compromise ? The only ground, on which it is claimed that this interest ought to be thus conveyed to the Shumates against their protest is, that the entire tract of one thousand five hundred acres had been sold by others with general warranty of title, and they had received the full benefit of the entire consideration paid for all the land by having the full'amount put as a credit upon a bond,'which was secured by a deed of trust on this entire one thousand five hundred acres, including their interest in the same. It is claimed, that it is unjust that they should have the full benefit of this payment, and yet retain their interest in the one thousand five hundred acres of land. This is true; and if the infants think proper to sue for their interest and do recover the same of the Shumates, they will of course have their redress by holding the grantors in the deed of August 9,1867, responsible on their warranty, and these grantors to the extent that they are thus required to pay to the Shumates could, I presume, enforce this amount against the interest of those who have .recovered their share-in the one thousand five hundred acres of land, as they would be entitled to be substituted to the lien of the Shumates under this deed of trust on their interest in the one thousand five hundred acres of land, and this lion would be considered as still in existence, and as unsatisfied to this extent by the payment made August 9, 1867, as to this extent this arrangement would have been rendered of no effect by the action of the parties claiming and recovering their interest in these lands. If these rights are enforced in a court of equity, and all per[504]*504sons interested in the question are before tbe court, I presume, that after the recovery of their interest in this land by these parties or any of them the Shumates upon the general principles of a court of equity would be permitted to enforce to this extent their lien directly on their interest in this land without'first making the same by suit out of the grantors in this deed of August 9, 1867, on their warranty of title. All this may be very troublesome, and it is possible, that to avoid it the parties, whose interest, the court has thus decreed to be conveyed to the Shumates, may themselves make such conveyances of their interest, and thus avoid all this trouble. But it seems to me clear, that to avoid this trouble the court could not in this or indeed in any suit order the conveyances of their interests to the Shumates. The object of this suit, as stated in the bill, has no possible relation to the enforcement of such conveyance. The parties, in whose favor this conveyance was ordered, were not even parties plaintiff in this cause, nor could this suit by a cross-bill or in any other manner be so molded as to make it proper for the court to order such conveyance. The decree therefore of October 25, 1878, ordering this conveyance must be set aside, reversed and annulled.
Of the decree of May 8, 1875, both the appellants and appellees complain. The appellants, that George P. Tracey was not permitted to file his petition, as he desired; and the appellees, that he was permitted to file an answer in the nature of a cross-bill and to set up by this answer as a cross-bill matters against his co-defendants, which were in no manner contained in the original bill. If it were proper to file this answer as a cross-bill, which' the court allowed, no complaint can be made by him, that he was not at the same time permitted to file this petition; for the same matters are contained in both this petition and answer. If properly presented in the answer as a cross-bill, it would have been wrong to permit them to be again presented in this petition. The main object of this answer, so far as it was asked to operate as a cross-bill, was to set up the new matter not set up in the bill, that is, that the debt secured by the deed of trust, which this court was proceeding to enforce, ivas tainted with usury, and that as a cross-bill this answer seeks to have this [505]*505usurious interest Ascertained and set off or credited on this debt.
Assuming for the present, that the defendant, George P. Tracey, was in no manner estopped from setting up this usury and having it credited on this debt, it would seem clear, that he ought to be allowed to do so in some form in this suit. The proper mode of doing it is by no means so clear. Story in his Equity Pleading section 392 says: “It also frequently happens and particularly, if any question arises between two defendants to a bill, that the court cannot malee a complete decree without a cross-bill or cross-bills to bring every matter in dispute completely before the court to be litigated by the proper parties, and upon proper proofs. In such a case, it becomes necessary for some one or more of the defendants to the original bill to file a cross-bill against the plaintiff and some or all of the defendants in that bill and thus to bring the litigated points fully before the court.” Again in section 396 he says: “Upon hearing a cause it sometimes appears, that the suit already instituted is insufficient to bring before the court all matters necessary to enable it fully to decide upon the rights of all parties. This most commonly happens, where persons in opposite interests are co-defendants so that the court cannot determine their opposite interests upon the bill already filed, and yet the determination of their interest is necessary to a complete decree upon the subject-matter of the suit. In such a case, if upon hearing the cause, the difficulty appears, and a cross-bill has not been exhibited to remove the difficulty, the court will direct, a bill to be filed in order to bring all the rights of the parties fully and properly before it for decision.”
This would seem to justify the filing of a cross-bill bringing in this question of usury, as it was not at all mentioned in the bill, and its consideration and determination under the supposition, which we have made, that the parties are not estopped from setting it up, are necessary to a complete decree on the subject-matter of the suit, the foreclosing of the deed of trust; and the issue ou this usury question is between the defendant Geo. P. Tracey offering to file the cross-bill, and his co-defendants the Shumates, and not at all between the defendant, George P. Tracey, and the plaintiff, [506]*506Lockey E. Tracey. But I am by no means certain whether the law, as thus stated by Story, has any application to a case, where the matter in controversy between co-defendants is a matter, in which the plaintiff has an interest identical with the defendant, who asks to file such cross-bill, and where this matter could have been properly introduced into the original bill, or, if it had not been so introduced, could have been introduced into an amended bill. But it may be said, that the omission of the plaintiff to put this matter in his original bill or in an amended bill ought not to prevent the co-defendant, having a like interest with the plaintiff, from bringing it into the suit, and he could do it only by a cross-bill. But is it clear, that he could do it only by cross-bill or, that that is even the appropriate means of doing it? In 1 Daniel Ch. Pi\ (5th Am. ed.) 141, note 1, it is said: “All persons having the same standing should stand on the same side of the suit; but if any such refuse to appear as plaintiffs they may be made defendants their refusal being stated in the bill.” Now the plaintiff and George P. Tracey, the persons who were seeking to file this cross-bill, are both appellants in this Court, and are both insisting on this usury in the consideration of the bond secured by the deed of trust. TJnder the rule above laid down they should have been co-plaintiffs with others having the same interest, and then this question about usury would have been set up in the bill or an amended bill, and the Shumates could have answered the charge. This was certainly the appropriate mode of bringing it into this cause. But George P. Tracey not being a co-plaintiff, when he offered to file this cross-bill what could he do except this, if this question of usury, was to be brought into the court at all ? Perhaps he ought to have moved the court .to be made a co-plaintiff instead of a defendant, as he was made, and when made a co-plaintiff, perhaps his proper course would have been to ask to file an amended bill bringing in this question of usury. But it may be, that the suit had progressed too far to permit the introduction of this new question into it either by cross-bill or by an amended bill.
I have not examined the authorities referred to in Story and Daniel with a view of determining these questions, as on a careful examination of this case I am satisfied, that the de[507]*507fendant, George P. Tracey, as well as all the other parties to this canse, was estopped from relying on usury in the consideration of the debt secured by the deed of trust, as I will hereafter show. And this being the case, it is unnecessary to trouble ourselves about the manner, in which this question has been brought into the record, or about the time, at which it was introduced. It could have availed nothing had it been ever so properly in the cause. We shall therefore disregard the manner, in which it has been introduced into the cause, and shall regard as not erroneous for the purposes of this suit the decrees of the circuit court permitting this and similar cross-hills to be filed by the defendants.
I will now consider the question, whether the defendants, the representatives of E. II. Tracey, are estopped from setting up, that the consideration of this bond secured by the deed of trust was usurious. It was in effect decided, that they were so estopped by the decree of the circuit court rendered on May 30,1877. The record shows, that on February 12, 1866, the judge of the circuit court of Mercer county granted an injunction restraining and inhibiting ¥m. M. Stafford, Parkinson Shumate and all others till the further order of the court from further proceeding to execute the deed of trust of March 24, 1860, executed by Edward II. Tracey, the same deed of trust, the enforcement of which is the subject of controversy in this cause, on condition that Edward G. Tracey, Rhoda Tracey and Lockey E. Tracey, devisees and heirs of Edward H. Tracey, or some one for them execute bond with good security in the penalty of five hundred dollars conditioned, as the law directs, to be taken and approved by the clerk of the circuit court of Mercer county. This bond was executed and approved February 17, 1866; and this injunction took effect.
This injunction was awarded on a bill filed by Edward G. Tracey, Rhoda Tracey and Lockey E. Tracey, all parties to this cause. This bill set forth, as the bill in'this cause does, the execution of this deed of trust of March 24, 1860, by Edward II. Tracey; and there was filed with the bill a copy of this deed of trust. The bill also set forth the death of Edward II. Tracey and his leaving a will, whereby the land conveyed by said deed of trust passed to his devisees and [508]*508heirs; and there was filed with this bill as with the bill in this cause a copy of this will to show who were the parties interested in said land, as was done in the bill in this cause. It set out also, as does the bill in this cause, the fact, that the war had occurred, and that the courts in said county were suspended during the war. It states that said debt of tour thousand one hundred and ninety-seven dollars and seventy-one cents secured by said deed of trust was usurious to a considerable extent. It set out in a rather vague manner what was the consideration of this bond, alleging that the plaintiffs cannot say at that time to what extent the said debt is usurious, but that they are satisfied that they will be able to show upon a final hearing of this cause that a considerable portion of the same is usurious and unjust. In this bill the plaintiffs also allege that under all the circumstances they are advised that it is competent and proper for a court of equity to interpose its authority and prevent a sale of said lands, it having been advertised for sale by the trustee,-and to ascertain what part of said debt embraced in said deed of trust was usurious, and to ascertain the exact indebtedness of the said Edward II. Tracey to said Shumates at the time said trust-deed was executed, and to decree against the heirs of Edward II. Tracey that amount without even legal interest thereon. The bill made all the heirs and devisees of Edward II. Tracey and his executors as well as Parkinson Shumate and the trustee Vm M. Stafford parties defendants. A portion of the prayer of this bill -was that the plaintiffs be relieved from the payment of that portion of said debt of four thousand one hundred and ninety-seven dollars and seventy-one cents, -which may be found usurious.
The defendant, Parkinson Shumate, answered this bill; and in his answer he states that there -was no usury in the various transactions, -which constituted the consideration of the bond secured by said deed of trust, and vaguely states the transactions. This ansv'er asks that the injunction, ■which had been awarded, be dissolved, and that the bill be dismissed at the plaintiffs’ cost. Other facts alleged in the bill as grounds for relief are denied in this answer. This answer is sworn to April 26, 1866.
No other steps were taken in this suit till May 7, 1875, [509]*509when a decree was entered, which is set out at length in the statement of the case, whereby this injunction was dissolved and the bill dismissed at the plaintiffs’ cost. I deem it unnecessary to state other matters, that were alleged in the bill and denied in the answer; what is above stated is the substance of all that was alleged with reference to the usury claimed in said suit to have been in the bond, which usury the answers in this cause have again attempted to set up in like manner as an oft-set or abatement from the said bond. The record in this suit is a part of the record in the cause now before us for review.
A final decree in a chancery cause is just as conclusive as a judgment at law. See Sibbald’s Case, 12 Pet. 492; as is said in Smith v. Kernochen, 7 How. U. S.: “A verdict and judgment of a court of record or a decree in chancery puts an end to all points thus decided between the parties to the suit. In this there ought to be no difference between a verdict and judgment in a court of law and a decree in a court of equity. They both stand on the same tooting and may be offered in evidence under the same limitations; and it would be difficult to assign a reason why it should be otherwise.” It is universally admitted now as laid down in the Dutchess of Kingston’s Case, 11 Stat. Trials 261, that a judgment or decree necessarily affirming the existence of any tact is conclusive upon the parties or their privies, whenever the existence of the fact is put in issue again between them. And this is so not only when the subject-matter is the same, but when the point comes incidentally in question in relation to a different matter; as is said in Harris v. Harris, 36 Barb. 88: “An adjudication is final and conclusive not only as to the matters actually determined, but as to every other matter which the parties might have litigated and have decided, as incident to or essentially connected with the subject-matter of the litigation, and every matter coming within the legitimate purview of the original action both in respect to the matters of claim and of defence.” It is not even essential, that the matter should have been distinctly put in issue in a former suit to make it an estoppel. It is sufficient, if it be shown to have been tried and settled in the former suit. The force of a judgment as res adjiulicata can not be destroyed or [510]*510^impaired by showing that it is clearly erroneous and ought not to have been rendered. Case v. Beauregard, 101 U. S. 688. It is true, that a judgment or decree, tobe an estoppel, must be a judgment or decree upon the merits; but by a decree upon its merits is not meant on the merits in the moral sense of those words. It is sufficient, that the status of the suit was such, that the parties might have had their suit disposed of on its merits, it they had presented all their evidence, and the court had properly understood the facts and correctly applied the law to the facts. Hughes v. United States, 4 Wall. 232. If either party fail to present all his proof, or manages his case improperly, or afterwards discover additional evidence, or if the court itself blunders, nevertheless the judgment or decree until corrected or vacated in some appropriate manner is as conclusive upon the parties, as though it had settled their controversy in accordance with' the principles of abstract justice. Many instances are to be found in the reports, where by reasons of this character abstract justice is defeated by the courts' firmly holding, despite the negligence of parties or -the blunders of courts, that a former judgment or decree unreversed was an estop-pel to all further litigation of the sume subject-matter between the same parties or their privies. As examples of this character see Foltz v. Prouse, 15 Ill. 434; Stafford v. Clark, 1 Carr. & P. 27; Morgan v Plumb, 9 Wend. 287; People v. Smith, 51 Barb. 360; Regina v. Yorkshire, 1 Ad. & El. N. S. 625.
In the cause before us it is obvious, that the subject-matter, viz: the charge of usury in the transactions, out of which arose the giving of the bond secured by the deed of trust sought to be enforced in this cause, was distinctly in issue in the former chancery suit, and that this former chancery cause was finally determined, and this issue decided on its merits in favor of the defendants, that is, that there was no usury in these transactions, by the final decree of May 7, 1875, dismissing the 'bill in that cause, which set up this usury. That cause was between some identical parties in the same right and capacity, or their privies claiming under them, and was decided by a court ot competent jurisdiction, audits decree on its merits has never been set aside or reversed. [511]*511It is therefore conclusive; and the parties are by it estopped from again setting up in this cause this controversy thus determined. See Bigelow v. Winsor, 1 Gray 299.
I have assumed, that the record in the first of these causes constitute a part of the record in this cause; but this is controverted in argument. It was made or attempted to be made a part of the record first by being referred to in the answer of the Shumates as an exhibit, which answer was sworn to March 12, 1872. But then the final decree in this old chancery cause had not heen entered, and though referred to as an exhibit, it seems the copy of the record in this old chancery cause was not actually filed with this answer. But a full copy of this record including this final decree was filed as an exhibit with the deposition of Edward G. Tracey taken on April 28, 1875. A full copy of this record was again filed as an exhibit with a special replication and answer to George P. Tracey’s cross-bill, which was tendered by ¥m, IT. Shumate and ITufus A. Shumate, but which the court refused by its decree of May 21, 1877,. against their protest to permit them to file ; and it was again referred to by the court in its final decree of May 30, 1877. • It appears on the face of this decree of May 30, 1877, that the court referred to and based its decree in part on the record in this old chancery suit, which record was a record of the same court; and according to the decisions in Craig v. Sebrell, 9 Gratt. page 131 and Richardson v. Donahoo, 16 W. Va. page 685, this reference in a decree to the record in another suit in the same court makes the record of the suit referred to apai’t of the record in the cause, in which the decree making such reference is entered. But in this cause this record was made a part of the cause by having been copied in full as an exhibit in this deposition. It was evidently proper for the court to permit the Shumates to rely upon the record of this first suit as an estoppel to any enquiry in this cause into the question of usury; and they proposed formally to rely upon it in the pleadings in the cause, in a supplemental answer to the cross-bill of George P. Tracey, which the court refused to permit them to file by the decree of May 27, 1877. This refusal was based, I presume, on the ground that the court did not deem it necessary, that it should be thus formally re[512]*512lied upon in the pleadings. If the court ought to have permitted this supplemental answer to be filed in order to raise in a proper manner this question of estoppel, this Court would hold the refusal to be error. But it would not send the cause back to permit this formal reliance on this estoppel to be put in the record, but would regard that as done, which ought to have been done, and treat the cause, as if the supplemental answer had been filed. We need not decide therefore, whether the court erred in holding, as it did, that this formal reliance on this estoppel in the pleadings was unnecessary, but will regard the cause as if there had been the formal and proper reliance on this estoppel in the pleadings.
We need not decide, whether the parties were not also estopped by the first chancery suit from asking as an offset an abatement of the interest on this bond during the war, or the question whether the price of the one thousand five hundred acres of land, four thousand two hundred and twenty-six dollars and eighty cents, was to be credited on the bond secured by the deed of trust generally, as was done, or whether it was to be applied by agreement to the extinguishment of the principal leaving nothing but the interest due which therefore no longer bore interest. For the evidence in this cause fully establishes, that these claims of abatement never did have any foundation. The evidence establishes, that the obligee in this bond and the representative of the obligor his heirs and devisees lived during the war in adjoining counties within a few miles of each other and within the same military lines, and of course the obligee could during the war have received, aud these representatives of the obligor could have paid, this bond, and not having done so they cannot be exempted from the payment of interest. The facts, that the money loaned was of but little use during the war, and that the courts were closed, are altogether immaterial, as the abatement ot interest during a war is not based on such grounds but only on the fact, that the creditor and debtor residing in counties at war with each other could not legally have any intercourse with each other, and the debtor could not legally pay, nor the creditor legally receive, any payment on the debt during the war. See Walker v. Beauchler, 27 Gratt. 511-517; Kanawha Coal Co. v. Ohio Coal Co., [513]*5137 Blatch. C. C. R. 391, 408. The evidence is also clear and conclusive, that there was no agreement, that the price of this one thousand acrc-s of land, four thousand two hundred and twenty-six dollars and eighty cents, should be applied in discharge of the principal of this bond, so that it should bear no interest thereafter. But it was on the contrary- expressly-understood, that the balance due should bear interest. The only ground for such a claim was the fact, that the amount of this credit and the arnouut of the principal of the bond was nearly the same differing only; in twenty-niuo dollars and nine cents.
We will now consider the other decrees entered in this cause and ascertain whether they are erroneous according to these views. There is no error in the decree of May 8,1875. which is now prejudicial to any of the parties to this cause; and it will therefore not be reversed. The decree of November 17, 1876, first gave leave to Addison II. Tracey to file his answer and leave was given to reply; generally thereto, and Clara A. Wiley7 and Howland J. Tracey were allowed to file answers in the nature of cross-bills similar to the answer and cross-bill, which George P. Tracey7 had been allowed to file. A motion was made to direct an issue to be tried by a jury to ascertain whether the consideration of said deed of trust was usurious and the amount of the usury. This was refused by this decree, and the court referred these enquiries to a commissioner in chancery. Exceptions to the deposition of Addison H. Tracey in reference to this question of usury was overruled, and a portion and only a portion, of the deposition of E. G.. Tracey on the same subject was excluded; and the court overruled a motion to exclude the deposition of R. A. Shumate. There is nothing in any portion of any of this action of the court, which is now, according to the views we have expressed, prejudicial to any of the parties; and it will therefore not bo reversed. As a mere abstract question there was error in this decree; but such errors, according to the views we have taken, are harmless. The report made by the commissioner on the subject of usury -was properly disregarded afterwards in the decree of May 30, 1877; and it being an immaterial enquiry, we need not consider whether the enquiry, had it been proper, should have [514]*514been made by a commissioner or by a jury. Nor need we look into the question, whether the court erred in acting on the question, whether' these depositions should have been considered as evidence or not. For, according to the views we have expressed, it is immaterial whether they were read or not. The result would be the same in either case.
The last decree of May 30, 1877, first recites the proceedings in the first chancery suit omitting only the final decree by the court on May 7, 1875, dismissing the cause, and in connection therewith recites the compromise oí said suit, and holds that the parties to said compromise are estopped thereby from setting up the usury, if any, in the bond secured by the deed of trust executed by Edward TI. Tracey, and also the abatement of interest thereon during the war, and that as Lockey E. Tracey, a party to said compromise, then owned the interest of Addison II. Tracey in his father’s estate, these questions were as to this interest also adjusted by this compromise and can not be set up. And while this compromise was also for the benefit of all the infant heirs and de-visees of Edward II. Tracey, yet, as they may not be bound by this compromise, the court by way of concession credits for usurious interest on said bond, two hundred and fifty dollars, which sum, it says, exceeds the aggregate interest of Rowland J. Tracey, George P. Tracey and Clara A. "Wiley under the will of Edward II. Tracey, which interest might possibly be worth nothing at all. This portion of said decree is erroneous and must be reversed. For, as wre have seen, all tiré devisees and heirs of Edward II. Tracey, whether parties to this compromise or not, are estopped by the final decree in said first chancery suit rendered May 7, 1875, from setting up this usury, if there was any; and on the evidence in this cause they are not entitled to any abate-meiit of interest during the war. The court probably did not in this decree refer to this decree in the first chancery suit dismissing it and dissolving the injunction, because from the evidence in this cause it concluded, that the court ought not to have entered this decree. But we have seen it is conclusively binding on all the parties to this cause and on all their privies, as much so as if it had been a proper decree to have been entered, as it is unreversed and has been in no [515]*515manner set aside and annulled, and it must therefore operate as an estoppel on all the parties to the present suit, they being all parties or privies to the parties in that suit.
So far as the record in that cause shows, the proceedings in it were regular and proper, and, so tar as appears, it could not have been reversed on appeal; and if there be error in entering this decree, that error is only disclosed in this suit, not in that. But even if this decree had never been entered or had been set aside in a proper proceeding for that purpose, after this great lapse of time and the apparent acquiesce by all parties in the abandonment of the claim set up in said suit, that there was usury in the transactions, out of which arose the giving of this bond and deed of trust, the court would have held, that it was too late to make an enquiry into this question; and it would obviously at this late day be impossible to do justice to the parties or to ascertain the real character of the consideration of this bond, as these transactions were evidenced by no writings but depended entirely on parol evidence in relation to transactions more than twenty years old, transactions too occurring between parties, both of whom- had been dead many years. The utterly unsatisfactory character of such an enquiry is well illustrated by the effort made by the court in this cause, which it subsequently abandoned. And in lieu of it substituted a mere guess of its own, which was probably as reliable as any result, which could then have been reached by the most careful examination. Even had the parties to this suit not been estopped from making this enquiry by the decree of May 7, 1875, in the first chancery suit, the court should have refused to permit any of them to rely on this alleged usury, because it was not set up till so long a time after these transactions occurred, that it had become impossible to do justice by such investigation.
The next provision in this decree of May 30, 1877, is an overruling of the exceptions to the report of sale of the commissioner, “Win. M. Stafford, and the confirmation of the sale. The court did not err in this. There were but two exceptions to this report, one was that this land sold at a grossly inadequate price. It sold for two thousand five hundred dollars. What the quantity of land was does not appear. The deeds [516]*516for this land which is perhaps the most reliable evidence of the quantity which appears in this cause would .show that there were about five hundred acres in the land sold. Some of the heirs of Edward IT. Tracey, parties interested, assert that there were in it seven hundred and eighty acres; but they do not say how they had so estimated it, as the deeds called for less, and they do not assert that it had been surveyed. I do not think much weight can be given to their statement of the quantity of this land. Had they deemed it important, they ought, when they filed this exception, to have sustained their statement by some satisfactory evidence, which was so easy to be obtained. If the quantity of land sold was five hundred acres, it sold at five dollars per acre; if seven hundred and eighty acres, it sold at three dollars and twenty cents per acre. The witnesses differed in their estimate of the value of this land from two dollars to ten dollars per acre. This great difference itself shows how little value should in this ease be put in the estimate of witnesses as to the value of the land.' The seven witnesses of the exceptants on an average rallied this land at eight dollars per acre; the four witnesses of the purchaser valued it at loss than three dollars on an average. All of those valuations wore made of the' land itself unencumbered, while it was sold encumbered by the widow’s dower. It is obvious, that from this evidence the court cannot say, that, the land did not sell for its fall value, and certainly we cannot say it sold at a grossly inadequate price. This sale was made January 3, 1874, and was not confirmed till May 30, 1877, a period of more than three years; and during all that time the parties, who were objecting to the confirmation of this sale, had the opportunity of looking up some purchaser willing to make an advance bid. Their failure to find one ought itself to have satisfied the court, that this land sold at a fair price.
The other exception to this report is, that the,decree ordering the sale directed this land to be sold to pay the residue of the debt secured by the deed of trust. At the time this decree was entered, there was no sort of controversy about the amount of the debt; it was stated express-lv in the bill, that it was four thousand one hundred and ninety-seven dollars and seventy-one cents with interest from [517]*517April 1, 1860, subject to a credit of four thousand two hundred and twenty-six dollars and eighty cents as of March 10, 1867. The answer did not deny but on the contrary admitted the truth of this statement in the bill. After this decree was made, some of the heirs and devisees of Edward Ii. Tracey set up the pretense, that this debt was subject to a further off set, because the interest during the war ought to be abated, and because this four thousand two hundred and twenty-six dollars and eighty ceuts ought to be first applied to the principal as a credit, instead of being applied as payments are usually applied, first to the payment of the interest. And because the commissioner did not state to them, when called on, the amounts due on the deed of trust on such a basis of calculation, they except to the report of the commissioner of the sale and to the sale itself, alleging that he would not state to them the balance due on said deed of trust. They could have calculated this balance for themselves from the admissions in the pleadings in one minute’s time. This of course was no valid exception to said sale and report;. The court therefore did not err in overruling these exceptions and confirming this report.
In this connection the court very properly added a provision, I suppose accidentally omitted in the decree of sale, that is, a provision requiring the special commissioner, before he should receive any of the purchase-money of this land to execute, 'as required by law, a bond in the penalty’ of three thousand dollars.
The next provision of this decree is a rejection of ^lie report of the commissioner on the subject ot the usury in the bond secured by the deed of trust. There was no error in this, as this order of reference to him ought not to have been made. The decree with reference to the payment of costs seems just and right. The next provision of said decree is that so much of the .answers of Rowland J. Tracey, George P. Tracey and Clara A. Wiley, as sets up new matters and claims affirmative relief, be dismissed except as to the two huudred and fifty dollars before allowed on account of usurious interest. These answers, so far as they operated as cross-bills, ought to have been absolutely dismissed without any modification or exception. The decree then proceeds to [518]*518distribute the fund arising from this sale. The first two of these directions are right. The third and last of tírese directions is erroneous only in the amount clue to Vm. II. Shu-mate and R. A. Shumate on said deed of trust, and the only error in it is deducting this two hundred and fifty dollars as usurious interest from this bond as of its date. The deduction of one hundred and twenty dollars as of June 10, 1861, is correct. It is true the bill set up no claim that this one hundred and twenty dollars had been paid on June 10,1861, and the answer of the Messrs. Shumate makes no mention of it, yet it is admitted by the counsel of said Shumates in-this Court to be correct, and it was evidently always admitted by them to be just, for in their answer they stated, that the amount of interest due on said bond on August 9, 1867, was estimated to be about one thousand six hundred dollars; if this credit of one hundred and twenty dollars is allowed the exact amount of this interest would be one thousand six hundred and twelve dollars, whereas if this credit was not allowed, the debt would have been one thousand seven hundred and thirty-two dollars. It was stated in the bill to have been about one thousand seven hundred dollars as of March 10, 1867, which obviously was a calculation based on the casual omission of this credit of one hundred and twenty dollars, which it would appear was never controverted. And as after the payment of the amount due to the Shumates there will be no surplus left, that portion of this decree directing this surplus to be paid to the executors of E. Ii. Tracey might properly be omitted. This decree then proceeds to order on the collection of the purchase-money a deed to be made to the purchaser. There being no exceptions to the report of the commissioners laying off the widow’s dower, it is confirmed. There are no errors in these provisions of said decree. The next provision directs that John A. Douglass as a special commissioner convey the interest of Minerva A. Dean with special warranty of title in the one thousand five hundred acres known as the compromise lands to Win. Ii. Shumate and R. A. Shumate, this direction being casually omitted from the decree of October 20, 1878. This decree of October 20, 1873, as we have said, ought never to have been made; and for the .reasons we [519]*519have given therefor this provision, ought not to have been inserted in this decree of May 30, 1877, and it must be reversed and set aside. A provision is then inserted in this decree awarding a writ of possession of said land purchased to Wm. II. and E. A. Shumate. Eufus A. Shumate alone was the purchaser of this land, and this writ of possession should have been awarded to him alone. This decree then provides that it shall in no wise prejudice the rights of Rowland «J. Tracey as to any claim he may have to the fifty acres of land referred to in his answer in this cause. This was proper, for this claim could not properly be brought into this cause, it being a matter foreign to the objects of this suit. There was no error in the rejection of the petition of John E. Tracey, both because of the time it was introduced, and because it was unnecessary to consider it in order to a just determination of this cause, if it contained matters similar to the petition of his brother George P. Tracey, as I presume it did, though it is not copied in this record.
We express no opinion as to the true construction of the will of Edward II. Tracey except as to the construction bf that claim, which made a provision for his wife, which we regard as no jointure. Some of the parties to this cause insist that he died intestate as to all his lands other than the Maud Iíollo-w Place; others that he disposed by his will of all his lauds. We express no opinion on this point, it being improper that we should do so, as the construction of the will in this respect is not involved in this cause.
Our conclusion is that there is no error prejudicial now to the appellants or appellees in the decrees of October 18,1873, May 8, 1875, and November 17, 1876, and they should be all affirmed; that the decree of October 20,1873, is erroneous and should be reversed, and that the decree of May 30, 1877, is erroneous in the parts, which we have indicated, and is not erroneous in the other parts of it and should accordingly be reversed in these erroneous parts and affirmed as to the correct portion of it; and that the appellants should recover of the appellees, Wm. H. Shumate and Rufus A. Shumate, their costs in this court expended; and this cause should be remanded to the the circuit court of Mercer county for the [520]*520sole purpose of proceeding in it farther to the extent only of enforcing the provisions of the decree of May 30, 1877, as amended and corrected in this opinion and by the decree of this Court.
Tiies Other Judges Concurred.
Affirmed in Part. Reversed in Part. Cause Remanded.