Hodges et al. vs. Frazier. to have appointed an attorney for them at all. But instead, a guardian ad litem, who, it is true, should be some one skilled in the law, and capable of defending, and this appointment should not have been made until after service on the minor. We cannot presume, on this record, in the face of what was done, merely from the words minor defendants appearing alone in the order appointing Crittenden attorney for the non-resident "minor" defendants, that therefore there were minors, in the absence of any allegation or statement to that effect in the pleadings. The record before us shows that Asa Hodges, the agent of B. M. Hodges, had gotten hold of the orignal papers and had taken them from the clerk's office, and by some means they had become lost. And the complaint was supplied by copies from the transcripts in this court, and a final decree was rendered in favor of appellee. The defendants appealed to this court and here argue, that Chick being a non-resident no affidavit of the fact appears to authorize a warning order against him. Whether such affidavit was lost with the original papers does not appear. It is not material, Chick having appealed to this court from the original decree which was reversed, he thereby became a party to the proceedings and must follow the cause to its conclusion, or take the consequences. The only remaining objection urged by appellants, which it is deemed necessary to notice, is that the deed which Frazier tendered and filed originally in the court below, is not incorporated in the transcript. As no motion was made in court below as to this deed, which was presented for the inspection and order of that court, and for its satisfaction, and formed no necessary part of the record as an exhibit, or in any other mode known to the law, it was no part of the record. Hodges et al. vs. Frazier. And as the defendants made no question as to its sufficiency, in the court below, it would be too late certainly to make it here. On a sale, the title of all parties to the suit will pass under the commissioner's deed. But if further assurances are necessary, the cause will be returned for the purpose of executing the decree, when the court below can take all steps-if any should be deemed necessary to assure the title to the purchaser by deed from Frazier or otherwise, before paying over to him the purchase money, and if defendants redeem, can direct a deed to be made before the money is paid out of court. It is urged here that the complaint was not sworn to. Whether this objection is not too late, being raised here for the first time, is a question which it is not necessary to decide. For it appears that Frazier swore to his original complaint on the 12th day of December, 1871, and before the first decree was rendered. The amended complaint, which brought in Hughes' heirs, has no affidavit to it, except that of the non-residence of Hughes" heirs, and that they were such heirs. This defect should have been pointed out in the court below, if indeed it be one in substance, and could have been there corrected by amendment. When the original complaint, containing all the substantial facts necessary to support the, decree was duly sworn to, we cannot reverse the case for this, when we find an affidavit attached to the amended complaint, which states that the new parties were heirs of Hughes and non-residents of the State, and their allegations are all of the amended complaint, which are new or materially different from the sworn statements of the original bill. The decree of the Circuit Court of Crittenden County is affirmed. Rogers vs. Vaughan, adm'r. ROGERS VS. VAUGHAN, admʼr. 1. MORTGAGE: Bill of Sale construed to be. An absolute bill of sale, executed to secure a debt, operates as a mortgage, and will be postponed to a subsequent, and recorded, mortgage. 2. TRUST: When advances by cestui que trust repaid out of trust fund. When one of several beneficiaries of a trust fund at the request of the trustee, advances means necessary to preserve the trust fund, he is entitled to re-imbursement out of the fund for such advances. A land owner who had let his land to laborers for one-half the crop, mortgaged his share to secure debts due various parties, and among others to secure future advances and a debt due to A. The laborers afterward gave to the land owner a lien on their shares to secure future supplies and other debts due him, he transferred this lien to A, who at the time took a mortgage from the laborers to secure the supplies; held, that A did not take the lien, and latter mortgage, as collateral to the original security, but as independent security for the supplies to be furnished the laborers, and the other creditors were not entitled to have it brought into the trust fund. APPEAL from Jefferson Circuit Court in Chancery. Met. L. Jones, for appellant. S. W. WILLIAMS, SP. J.: On the 5th day of April, 1871, one F. A. Turner, who was engaged in planting in Jefferson County, Arkansas, desiring to get supplies to enable him to make his crop, and being also indebted to appellee Fitzpatrick, and appellant Rogers, and one Murphy, at the time, to secure the appellant in supplies as well as to secure the debts then due from him, executed a deed of trust, whereby he conveyed to William F. Owen as trustee of the second part, and describes appellant as of the third part, all the crop of cotton and corn "grown or raised" for the year 1871, on his own place, in Jefferson County, and about one hundred acres of the Withers place which he had rented, being about 215 acres in all, also certain mules, wagons, oxen, and a Pratt gin Rogers vs. Vaughan, adm'r. stand, which were conveyed in trust to secure advances to be made by the party of the third part, not to exceed twelve hundred dollars, to enable him to cultivate and raise the crop, and secure Rogers, Fitzpatrick and Murphy in certain debts they then held. On default in payment, the trustee was to take possession of the property, gather the crop, ship the cotton, and sell it in New Orleans, and if necessary, to sell the property on notice, at public sale, first exhausting the crop, and out of the proceeds to pay Rogers for his advances and then the other debts named; but if there should not be enough to pay all, after the advances were paid, then the trustee was to pay the other debts pro rata according to amount. This deed of trust was signed by Turner, and acknowledged on 5th of April, 1871, and filed for record on the 14th day of April, 1871. Turner rented his land, in part at one-fourth of the cotton to be delivered to him, and in part for a specific number of pounds (90) of ginned cotton per acre. But by far the greater portion of his land was worked on the share crop plan. Turner receiving one-half for his land, use of stock and implements and feed for plow animals, and the laborer to receive the other half for his labor. The crop was planted and cultivated, and matured; Turner drawing his supplies from Rogers, and furnishing it to the hands until he had exceeded the limits of $1,200, provided for in the deed of trust. On the 19th of August, very near or quite the beginning of cotton harvest, Turner being in very bad health desired to leave the State, and go to Tennessee, and it being necessary that further supplies should be advanced to the laborers, an arrangement was effected whereby Turner had all his laborers, except Jesse Nicholson, to execute to him a contract in this form: Rogers vs. Vaughan, adm'r. and "This agreement made and entered into this 19th day of August, 1871, by and between F. A. Turner party of the first part, Rufus Davis, George Washington, Henry McFarland, and William Murphy, parties of the second part, witnesseth that whereas the said parties of the second part have contracted with the said party of the first part, to cultivate forty-five acres of land, more or less, in cotton, on the place known as the Dr. Sam. Withers place and the Turner place, in Jefferson County, Arkansas, in the year 1871. And whereas, the said parties of the second part, are to receive for their services in cultivating and gathering said crop, one-half of the same, to be apportioned among the said second parties as follows, to-wit: The said Rufus Davis to receive one and one-half shares (14), said Washington one (1) share, and Murphy one (1) share. And whereas, the said second parties are at this time indebted to the said first party in the following sums respectively, to-wit: Rufus Davis in the sum of $80.72, George Washington in the sum of $94.04, Henry McFarland in the sum of $219.67, William Murphy in the sum of $73.72. Now it is agreed and understood between the parties hereto, that the said first party shall have a special lien upon all the interest of each of the said parties severally of the second part in the said crop raised on said land during the said year, 1871, to secure the payment of the indebtedness to the said first party as aforesaid, and also a special lien on the same for any indebtedness contracted by the said second parties hereafter for supplies, etc., for the said year 1871, to be used or consumed in gathering said crop. And it is further understood and agreed that said second parties shall in no event employ laborers to work in said crop without the full knowledge and consent of the said first party." On the same day, and as a part of the same transaction, Turner executed the following transfer: |