Bbannon, Judge:
George W. Clark died in 1861 owning a large tract of land in Logan county. In 1885, M. H. Waldron and Hester A. Wal-dron his wife filed a bill against Luemma Clark and others in the circuit court of Logan county, stating in it the death and [611] seisin of Clark, that be left a widow, Lnomma Clark, and three children, Hester A., John B. and Jane Clark; that Hester A. Clark had married M. H. Waldron, and Jane had married -Waller, and died leaving one child, George IL Waller. The bill prayed that the widow’s dower be assigned and the land divided between the three heirs.! The bill contained the common prayer for general relief. A decree was made at April term, 1886, assigning the widow’s dower, and assigning to Hester A. Waldron, John B. Clark and George It. Waller each a separate parcel of the land, and requiring each heir to pay a third of the costs, and retiring the case from the docket. H. S. Bnskirk gave a notice to the parties to the suit saying that he was the beneficiary of the several parties entitled to costs in the case, and that ho would.at the October term, 1886, move the court to reinstate the case on the court docket. At that term an order was entered reciting that as at the April term, 1886, the cause was dropped from the docket without any provision for payment of costs, “on motion of the plaintiff this cause is ordered to be reinstated upon the docket of this Court, that an adjudication and proper 'process may be had for the costs herein.” At the same term another decree was made reciting that the former decree had required Hester A. Waldron, J. B. Clark and George B. Waller to pay the costs equally, and fixing the amount of costs and decreeing that unless said parties should pay the costs and interest, a special eommisioner should sell sufficient of the land which had been set apart to said heirs to pay the costs chargeable to them, respectively. Hnder this decree 99 acres of the tract which had been allotted to Hester A. Waldron was sold, and purchased bjr J. A. Nighbert, and the sale confirmed by decree. Nighbert’s right passed to Thomas H. Harvey, S. S. Altizer, Nicie Nighbert and G. F. Miller. By deed of trust, 17th September, 1883, M. H. Waldron and Hester A. Waldron, his wife, and John B. Clark conveyed to William Stratton as trustee to secure a debt to James A. Nighbert all their interest then undivided in the land descended to them from George W. Clax*k. In a suit to enforce liens against John B. Clark a decree was made to sell John B. Clark’s tract allotted to him, and in this suit the said trustee and Nighbert were parties, and under the decree the tract of John B. Clark was sold and bought by Nighbert by decree, That suit was brought and the sale under [612] it made before the sale to Nighbert of the ninety nine acres out of Hester Waldron's land. The Jonh B. Clark land bought by Nighbert adjoins said ninety nine acres. When Nighbert purchased the John B. Clark land he at once took posession of it, and yet has such possession; but his possession actual includes no part' of the ninety nine acres. Before George W. Clark's death he allotted a portion to Hester A. Waldron, and she and her husband took'actual possession of it, built a house upon it, and have ever since been in actual possession, and the part assigned to her in the partition included this improvement, and ever since such partition they have continued such possession. The ninety nine acres sold from her is part of the tract assigned her, and adjoins the remainder of her tract; but she has never had actual possession within the ninety nine acres, if we can give it a boundary. The said ninety nine acres seems to have no definite boundary. The decree under which it was sold prescribes no definite boundary, simply tells the commissioner to sell a sufficient amount of land to pay the debt. The said ninety nine acres was, for taxation, deducted from Hester A. Wal-dron's tract, and ever since Nighbert’s purchase of it the ninety nine acres has been taxed to Nighbert and those claiming under him, and not to Hester Waldron. The sale to Nighbert of the John B. Clark land paid the deed of trust, but it was not actually released until after the sale of the ninety nine acres under the decree. The said ninety nine acres is in a state of nature. In the year of 1900 Waldron and wife brought a chancery suit in the circuit court of Mingo county, wherein the land now lies, against Thomas H. Harvey and others owning the ninety nine acres under Nighbert’s purchase under said judicial sale, basing their claim to relief on the theory that the decree of sale, and the sale and confirmation decree were all void, and conferred no title, because -the court was without jurisdiction to make the decrees, and praying that said decrees and sale and deed under them be set aside as clouds upon the title of Hester Waldron. The court entered a decree denying any relief to Waldron and 'his wife, and dismising their bill, and from this decree they have appealed.
One important question is this: The bill for partition was purely and only a bill for partition. It stated only the facts that Clark owned the land at his death, his title, who were his heirs, [613] and that they were entitled to partition. It asked nothing as to costs; did not pray that they be charged on the land, and that the land sold for them. The utmost the court could do on that bill was to divide the land, order each party to pay his share of cost by personal decree, and perhaps, as some courts do, declare such costs a lien on the lands assigned, which would be unnecessary, because the decree personal would be a lien. This decree did not declare tire costs a lien. If it had done so, there could not be a sale for costs on that bill. The decree that the heirs pay costs was a judgment. It had to be enforced by another bill, because it did not exist at the date of the suit, and the bill made no allegation as to its payment, and made no state-' ment or prayer as to costs, or their non-payment. There had been no execution for such costs. It was not a judgment lien suit; it did not seek a sale of the land for any cause. “A decree is a conclusion of law from pleading and proofs, and where there is a failure of either pleading or proofs there can be no decree.” Kenneweg v. Schilansky, 47 W. Va. 278; Vance Shoe Co. v. Haught, 41 Id. 275. A decree, or any matter of a decree, which has no matter in the pleading to rest upon is void, because pleadings are the very foundation of judgments and decrees. “Matters not charged in a bill or in the answei, and not in issue in the cause, are not proper to be considered on the hearing.” Hunter v. Hunter, 10 W. Va. 321. There must not only be jurisdiction as to the person affected by the decree by having him before the court by process or appearance, but there must bo jurisdiction of the matter acted upon by having it also before the court in the pleadings. Multitudinous cases attest this elementary axiom of jurisdiction. If either is wanting, the decree or judgment is void, not merely voidable or erroneous. Hogg’s Eq. Proced. section 573; Haymond v. Camden, 22 W. Va. 180, (point 5); McCoy v. Allen, 16 Id. 724; Shaffer v. Fatty, 30 Id. 248; Bland v. Stewart, 35 Id. 518. Akin to this case is Seamster v. Blackstock, 2 S. E. 36, where a widow sued to assign dower, making the heirs parties, and the court decreed a sale, and the decree was held void because in selling the court exceeded its jurisdiction. So in Hull v. Hull, 26 W. Va. 1, and Hoback v. Miller, 44 Id. 635, suits brought by widows for dower, sales decreed were held absolutely void. Why ? Because in such suit, upon such a cause of suit, a sale was improper, [614] the court not having proper jurisdiction for that purpose. So in this case, a suit purely for partition, there could be no sale except for the reason that the land was indivisible, certainly not for costs. In the cases just given there was more reason to justify decrees than in this case, because the bills asked a sale, and this bill did not, and stated no ground for sale. You cannot in a suit for one purpose, decree for another. Billingsley v. Minear, 44 W. Va. 651, is like this case, in that the bill was good for part, but not all of the decree. It was held bad as to the part not covered by the facts stated in the bill.
It is argued that the prayer for general relief makes the decree good over the defect just stated. This cannot be so. Under a prayer for general relief you can get relief not specifically asked, provided the facts alleged in the bill and the nature of the case warrant it, not otherwise. Hogg’s Eq. Proced. section 105; Vance Shoe Co. v. Haught, 41 W. Va. 275.
It is further argued that as the court had unquestionable jurisdiction to decree partition, the sale decree was warranted by the rule that having jurisdiction for one purpose it must go on and give full relief on principles stated in Sinnett v. Cralle, 4 W. Va. 600. That is where the nature of the case and the facts given in the bill justify it. A court cannot do everything in a case. This case was only one for partition; sale was not its object or nature; the bill contained nothing to call for it. That was not in the issue. “It is impossible to concede that because A and B are parties to a suit that a court may decide any matter in which they may be interested, whether such matter be involved in the litigation or not.” Black on Judge, 241. So the decree for sale was ultra the case.
Another reason why the sale is void, is the indefiniteness of the land sold. It seems simply a sale of 99 acres out of 878. No boundary, no description, all vague and general.' Ejectment could not be maintained for it, for it was agreed, in the present suit that it had never been surveyed and -that its boundaries had never been ascertained, and that if the case should go for defendants, the court should direct a survey and its metes and bounds be fixed and entered of record. Thus the surveyor, not the court, would be the vendor in effect. Blakely v. Morris, 89 Va. 717.
Another reason occurs to me to show this decree void. The suit [615] sought partition only. When the decree making final partition and adjudicating costs was entered, it disposed of every thing involved in the case; it was a final decree and ended the case, because it had fully performed its office of giving full relief according to the facts, and the court had nothing further to do. A final decree puts the case out of court. Cock v. Gilpin, 1 Rob. 22; Vanmeter v. Vanmeter, 3 Grat. 142; Hogg’s Eq. Proced. section 568; Morgan v. Railroad, 39 W. Va. 17. Childers v. Loudin, 51 W. Va. 559, holds that after the term the powers of the court are closed. The decree alone put the case out of the coui’t; but the decree expressly struck it from the docket. There was no case in court for a further decree, and the decree of sale was a nullity. McKinney v. Kirk, 9 W. Va. 26; Crim v. Davison. 6 Id. 465. It is no answer to this to say that Code, chapter 127. section 11, allows reinstatement. That does not apply to suits closed by final decree, but only to nonsuits and dismissal before decree.
Another reason for holding the decree of sale void comes from the question, Where did the court find its jurisdiction to sell the fee simple of a married woman’s land for her debt? At the date of the decree .equity could subject the issues, and profits during the coverture., This was the extent of its powers, until acts 1893, Code 1899, chapter 66, section 15. Under no state of facts could it go further to pay her debts, if the land was her separate estate without a. lien. Radford v. Carwile, 13 W. Va. 572; Williamson v. Cline, 40 W. Va. 194. Was the land'Hester Waldron’s separate estate? We do not know. She inherited it in 1861. We do not know when she was married. If before 1st April, 1869, it was not separate estate; if after that date, it would he under chapter 66. section 2, Code. If the land was not separate estate, I do not see how it could be at all subjected. As a contract to pay costs, her promise would be not enforceable. But say there is the decree against a married woman. It would be void, as would a judgment at law. The suit was not one to sell her land. But as the costs were in partition they might be charged expressly on the land; but this was not done. Lot us say, however, that the decree is personal, and being in partition, is valid. Still, could you sell the corpus of her land? Whether we view the land as maiden land, not separate estate, or separate estate, I do not see how the land could be sold in fee. Under [616] Thorn v. Sprouse, 39 W. Va. 706, it seems her land would not be liable for costs.
Counsel for the defense say that the court had jurisdiction for partition, and that even if it erred in a decree of sale, it is merely error, and is res judicata, and forever binding, and could be attacked only by appeal, not collaterally, as is done in this case. But this is answered by the fact that the decree is'void, not voidable. A void decree may be reversed on appeal or bill of review or attacked collaterally. Cook v. Dorsey, 38 W. Va. 196; 2 Cyc. 590.
It is argued that as the trastee and creditor were not parties the decree is also for that reason void. It would be as to them; but as to other parties, it would be only erroneous, not void. It was only a partition suit, to which they were not necessary parties, unless a sale was asked. 1 Daniel Ch. Prac. 257; 2 Minor’s Inst. 418.
It is claimed that the plaintiff is estopped to say the decree of sale is void, on the theory that the decree was at her instance. To bar one . of his right, the case must be plain. The record does not show that Hester Waldron moved the decree. It is likely that Buskirk did. An order does show that she moved the reinstatement, which, though it so states, is not likely, and probably an rtnauthorized statement, as Buskirk gave the plaintiff notice that he would ask reinstatement. But pass this. The decree of sale, another order than that of reinstatement, was not moved by her. Is it likely she would move a decree against herself. She got the benefit of the decree in having its proceeds pay her debt; but did not ask its benefit. Though the record does not disclose that she did anything working an estoppel, yet as it is argued that she did,
I will say that if she did, yet as she was a married woman, whether this land is, or is not, separate estate, she could not lose her title by estoppel in pais, for reasons given in Williamson v. Jones, 43 W. Va. 562, (point 11). In that late excellent Chancery work, Amer. & Eng. Dec. in Eq., vol. 4, p. 363, in a full note on Estoppel by conduct, I find this: “She cannot be estopped with reference to her legal title to real estate, however, since that can only be conveyed according to the statutory requirements.” Yery many cases are cited from all quarters to support the proposition. Heavner v. Godfrey, 3 W. Va. 426; [617] McNeely v. Oil Co., 52 Id. 643. The answer says Hester Wal-dron admitted in conversation that Mghbert owned the land. Title to land cannot pass by admission, when statute requires a deed. Oases given in McNeely v. Oil Co., 52 W. Va. page 644; High v. Pancake, 42 Id. 607. But the replication denies this allegation. It was mere mistaken opinion, ,not misleading any one to outlay.
Laches. This defence cannot avail. View Hester Waldron’s estate as not separate, and the rule applies that laches cannot bo imputed to a married woman. Baker v. Morris, 10 Leigh, 284; 18 Am. & Eng. Ency. L. 2 ed. 107; Hogg’s Eq. Princip. 418. Waldrons being in possession laches are not imputable to them, as the defendants were not in possession. State v. Sponagle, 45 W. Va. 415. In addition, this case is one of legal title, and is governed by the statute of limitations — that is, the right to the land, and as that statute does not bar the plaintiff, as will be presently sought to be shown, laches cannot bar, as clearly a right yet good under the statute is not lost by laches Laches applies to equitable demands where the statute of limitations docs not. “Mere delay in asserting a right, short of the limitation fixed by statute, does not bar the right in equity.” 8 Am. & Eng. Dec. in Eq. 677. If a legal right gets into equity, the statute governs. Hogg’s Eq. Princip. 415; Wilson v. Harper, 25 W. Va. 179. The cases of Pusey v. Gardner, 21 W. Va. 470, and Trader v. Jarvis, 23 Id 101, do not apply because they wore about equitable rights.
View Hester Waldron’s land as separate estate, and say that laches are imputable to a woman as to here separate estate. If the statute does not bar, laches do not bar, as just stated.
Statute of limitations. If the land was maiden land, not separate estate, and there had been actual possession by the purchaser, Nighbert, of the 99 acres, the statute would bar the joint right, during coverture. Merritt v. Hughes, 36 W. Va. p. 366; Caperton v. Gregory, 11 Grat. 505. But the wife’s estate would be saved by coverture. But the joint right of Hester Waldron and husband cannot be so barred for want of actual possession of the ninety nine acres by those claiming under the sale. Before that sale Hester Waldron and husband had actual possession of the tract assigned her, and that possession, though not on the ninety nine acres, included it, as possession of part [618] is of the whole. If Nightbert’s purchase were not void, it may 1)0 that his possession of the John B. Clark land would be extended over the ninety nine acre coterminous tract on the same-principle, as it would in such case be the better right and would displace the constructive. — actual possession of the Waldrons; but the sale being void, did not displace the constructive — actual possession of the Waldrons of the ninety nine acres, because it did not for a moment extend to it. Oberton v. Davisson, 2 Grat. 211. So Nighbcrt and those under him never had actual, or constructively actual possession of this ninety nine acres. Thus, the joint estate is not barred. So, if we view it as separate estate, the wife’s right is not barred, for like reason, want of possession.
The defendants ask, are not our purchase and deed under it color of title? The plaintiffs says that it is not because it has been held that one who buys at a court sale that is void holds no adverse possession against the former owner? Tor this broad position that a deed under a void sale is no color of title, Hall v. Hall, 27 W. Va. 468; Lynch v. Andrews, 24 Id. 751; Sturm v. Fleming, 26 Id 54, are cited.
I think the last case only holds that payment of taxes by the purchaser keeps the land from being forfeited for non-entry by the former owner. The first two cases -at first seemed to conflict with Mullan v. Carper, 37 W. Va. 215 and with Swann v. Thayer, 36 Id. 47, holding void sales good for color of title and adverse possession, which they certainly are on sound principle. Bennett v. Pierce, 50 W. Va. 604; McNeely v. Oil Co., 52 Id. 616. But on examination we see that in the eases of IIall v. Hall and Lynch v. Andrews -the litigation in which the Sales were made continued, and the sales were set aside in those same cases. The purchasers were like pendente Hie purchasers, who cannot plead the statute. Those cases do not apply in this case for reasons just stated. It is clear that, except under special circumstances, possession under a sale is adverse though the sale be void. “The possession of a purchaser at a judicial sale is adverse to the judgment debtor.” 1 Cyc. 1054; 1 Am. & Eng. Ency. L. 2 ed. 850. On page 845 we read: “A deed which es executed pursuant to a decicc of a court of competent jurisdiction gives color of title even though the decree is void.” [619] Possession under a deed from a vendor is adverse to him; possession under a void tax deed is adverse to the former owner. By a parody of reason a deed under a void decree purporting to pass the owners title is color of title. Simpson v. Edminston, 23 W. Va. 675; Ketchum v. Spurlock, 34 Id. 597. A void deed was so held in Cooey v. Porter, 22 W. Va. 121. Whilst I as-‘scrt that a deed under a void decree would give good title by adverse possession, yet for want of actual possession in this case it avails nothing. Besides the decree was void for want of description of the land, and thus not good for color of title. And if the land was maiden land, not separate estate, no possession would avail against Hester Waldron or her heirs until after the death of her husband. McNeely v. Oil Co., 52 W. Va. 677; Caperton v. Gregory, 11 Grat. 505. She has been under disability every moment since the sale, and her right is protected by section 3, chapter 104, Code, giving one or those claiming under him five years for suit after the end of disability.
I do not understand that it is contended in the brief that payment of taxes by Nighbcrt and his alienees and the failure of Waldonrs to-pay tax vest title in Highbert by reason of forfeiture of Waldron’s right for non-entry for taxes under section 3, article 13, Constitution. If such is the meaning of the allegation of such payment by Highbert and non-entry by Waldrons, it is not tenable. There has been no actual possession under the first and last clauses to apply them, and no claim under a grant from the state to apply the second clause. And, further, Sturm v. Fleming, 26 W. Va. 54, and Lynch v. Andrews, 25 Id. 751, and Hall v. Hall, 27 Id. 466, hold that taxes paid by a purchaser under a void decree enure to the former owner’s benefit to prevent forfeiture by his non-entry for taxes. This is on the theory of identy of title and privity of estate.
Equity jurisdiction. I have shown above that Waldrons have always been in actual possession. That gives them right to sue in equity to remove cloud. Smith v. O'Keefe, 43 W. Va. 172; Hogg’s Eq. Princip. 81. Likely we may say they have jurisdiction to vacate a void decree.
As the money of Niglibert and those under his title paid just claims against Waldron and wife to pay costs of partition and taxes, the plaintiff must do equity by refunding the same [620] with six per cent, per annum interest from proper dates, which shall be ascertained and declared a lien on the ninety nine acres.
I believe it is not claimed that though the sale and deed are void the purchasers under Nighbert can be protected. They cannot be for these reasons: First, their answer does not show that they are complete purchasers by payment of purchase money before notice of defect of title. Hogg’s Eq. Proced. section 433. Second, they are not complete purchasers, because the legal title was outstanding in trustee Stratton, who was not a party to the suit in which Waldron’s land was sold. Third, a purchaser from a purchaser under a decree void for want of jurisdiction is not a bona fide purchaser without notice. lie is bound to know the want of jurisdiction. He is bound to know defects in papers showing his claim of title. Hobach v. Miller, 44 W. Va. 635; 23 Am. & Eng. Ency. L. 2 ed. 508; Wood v. Krebbs, 30 Grat. 708; Williamson v. Jones, 43 W. Va. 562. Code, chapter 132, section 8 does not protect a sale under a totally void decree. Title falls with its vacation. The title was never for a moment good; never existed.
Therefore, it is adjudged, ordered and decreed that the decree of the circuit court of Mingo county, entered on the 21st day of February, 1901, be reversed; that the decrees enterecd in the case of M. H. Waldron and wife v. Luemma Clark and others, by the circuit court of Logan county, on the 14th day of October, 1886, and 16th day of April, 1887, be vacated and annulled and that the deed made und'er said decrees by II. C. Ragland, commissioner, to J. A. Nighbert, on record in the office of tho clerk of the county court of Logan county, in deed book J, page 34-1, be vacated and set aside, so far as the plaintiffs arc concerned therein, and that the title or right of Thomas II. Harvey, S. S. Altizer, Nicie Nighbert and G-. F. Miller in the tract of ninety nine acres of land specified in said commissioner’s deed, be vacated and held for naught as to the plaintiffs. The cause is remanded to the circuit court of Mingo county to ascertain the proper sum payable by Waldron and wife for costs and taxes as according to this opinion.
Reversed.