does not appear that this exercise of the right was ever questioned.

Accordingly we conclude that it was not necessary for the grantees to designate the three acres, in order to give the deed validity. The matter involved here is essentially different for a grant such as of a certain number of acres to be selected by the grantee out of a tract, which is held to be executory, and as not confirming any title until the selection is made, and that such right of selection in the grantee may not be enforced after the lapse of too long a time. The present is the case of a grant, depending upon the selection or description by the grantor of a certain excepted number of acres at a certain locality, and he and his heirs cannot defeat the grant by their own failure to make the selection. Enough has been said to dispose of both the propositions. The judgment rendered does not adjudicate the boundaries of the three acres. The plaintiff did not seek such adjudication, but sought to have the deed declared void, and to have the entire land attempted to be conveyed by it ad judged to them. This they were not entitled to, and under the pleadings and evidence they have no just reason to complain of the judgment as rendered.

Affirmed.

On Rehearing.

The amended petition on which the case was tried set forth the conveyance from plaintiffs' ancestors to defendants, and alleged that it was not signed by the ancestors, and, if signed, was void for indefinite description. We might presume that plaintiffs introduced the deed in evidence. The fact is it was introduced and was the basis of the controversy; and, by whomsoever introduced, it precluded plaintiffs from recovering upon their pleadings in so far as it had validity as a conveyance. It is true that defendants pleaded and sought to establish that the three acres had been agreed upon, or had been selected, and that the proof failed to show this. Nevertheless defendants were entitled to the benefits the deed conferred on them, and plaintiffs were not entitled to relief contrary to its effect. The judgment entered was in accordance with a correct construction of the deed, and the court, evidently from lack of proof, was unable to correctly go further than to make the adjudication it did. It is undoubtedly true that when, in trespass to try title, defendant pleads title specially, he can rely on no other. But, viewing the amended pleading as embodying the statutory action of trespass to try title (which we think it was not), it is equally true that plaintiff in such an action, even when defendant pleads specially a title which he fails to prove, cannot recover if the evidence develops he has no right to the relief he asks. Hayes v. Galla

One asserting that a deed was a forgery had the burden of proving it.

[Ed. Note.-For other cases, see Deeds, Cent. Dig. § 564; Dec. Dig. § 193.*]

2. APPEAL AND ERROR (§ 1009*)-REVIEWEVIDENCE-CHANCERY DECREES.

The Supreme Court will not reverse a chancery decree, unless the finding is against the preponderance of the evidence.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3970-3978; Dec. Dig. & 1009.*]

Appeal from Pulaski Chancery Court; Jesse C. Hart, Chancellor.

Action by Cinderella E. Blackburn against L. W. Cherry, trustee. From a decree dismissing the complaint, plaintiff appeals. Affirmed.

Carmichael, Brooks & Powers, for appellant. Whipple & Whipple, for appellee.

HILL, C. J. Cinderella E. Blackburn and Gideon E. Blackburn were husband and wife, and the wife owned the tract of land in controversy, containing 160 acres, situated in Pulaski county. Mrs. Blackburn obtained a decree of divorce from her husband on the 9th of October, 1890. A certain deed, purporting to be executed by her and her then husband, Gideon E. Blackburn, on the 5th of June, 1890, conveyed the land to James P. Webb. Mrs. Blackburn brought suit in chancery, alleging that said deed was a forgery, and asked that the defendants be restrained and enjoined from selling and conveying the property and from transferring, negotiating, or handling any of the purchase-money notes which they may have given to Gideon E. Blackburn for it, and that the deed be set aside and held for naught, and her title quieted. The suit was brought against Blackburn, who was subsequently dismissed from it, and against Cherry and Cox, who held under conveyances the validity of which was dependent upon the deed from Mrs. Blackburn to Webb. The chancellor held that said deed was not a forgery, but was a good and valid deed, and dismissed plaintiff's complaint for want of equity, and quieted the title of defendants. From this decree she has appealed.

Several questions are discussed; but, as the court views the facts, these questions are unnecessary to the determination of the case. The evidence of the forgery of the deed is the testimony of Mrs. Blackburn, which is positive and direct, and that of her daughter,

who says that the signature to the deed is not the signature of her mother. On the other side, the clerk of the court before whom the deed was purported to be acknowledged testifies positively that he knew Mrs. Blackburn, and remembers her execution of the deed. He says that she signed it in his presence and acknowledged it. The deed bears his certificate and the seal of the court. It also bears the name of a third party as witness, and this party testifies that he witnessed the execution of the deed. There is some corroborating evidence tending to support each side; but this is all of the direct evidence in the record. The burden was upon Mrs. Blackburn to establish by a preponderance of the testimony that the deed was a forgery, and in this she has failed; and the chancellor properly so held. This court does not reverse chancery decrees unless the finding is against the preponderance of the evidence; and it cannot be said to be that in this case.

Even if Mrs. Blackburn had sustained her case by a preponderance of the evidence, still she would have been barred of recovery by reason of her own laches. But it is not necessary to review the facts upon that subject, as the proposition already mentioned settles the appeal.

The judgment is affirmed.

HART, J., who presided in the chancery court, was disqualified and did not participate. MCCULLOCH, J., being related to one of the parties, did not participate.

THOMPSON et al. v. BOWEN. ·

(Supreme Court of Arkansas.

Oct. 12, 1908.) 1. VENDOR AND PURCHASER (§ 231*) — BONA FIDE PURCHASERS NOTICE RECORDS CHAIN OF TITLE.

A purchaser of land must take notice of all prior recorded instruments in the line of his purchased title.

[Ed. Note.-For other cases, see Vendor and Purchaser, Cent. Dig. §§ 513, 515; Dec. Dig. § 231.*]

2. VENDOR AND PURCHASER (§ 231*) - BONA FIDE PURCHASERS-NOTICE-RECORDS - CERTIFICATE OF ENTRY ISSUED BY STATE PRIOR TO PATENT.

A certificate of entry, issued by the state prior to issuance of patent to another person, is not in the line of title of persons holding under the patent, so as to charge them with notice of outstanding equities under the certificate; and, in the absence of actual notice, they may presume that the state officers had done their duty and issued the patent to the person entitled to it. [Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. §§ 513-515; Dec. Dig. § 231.*]

3. VENDOR AND PURCHASER (§ 230*)-TITLENOTICE OF OUTSTANDING CLAIMS-RECITALS IN CONVEYANCE.

A recital in a patent that it was issued upon a certificate issued from the land department "in favor of A., widow of J.," did not charge one

in whose chain of title the patent was a link with notice that the conveyance was to A. as widow or by virtue of her rights as widow; the words "widow of J.," being only a description of the person, and not limiting the estate taken by the patent.

[Ed. Note.-For other cases, see Vendor and Purchaser, Cent. Dig. § 504; Dec. Dig. § 230.*]

Appeal from Mississippi Chancery Court; Edward D. Robertson, Chancellor.

Suit by G. W. Thompson and others against W. J. Bowen. Decree for defendant, and plaintiffs appeal. Affirmed.

Edwards & Ledbetter and D. F. Taylor, for appellants. W. J. Driver, for appellee.

McCULLOCH, J. Appellants, as heirs at law of James H. Thompson, deceased, sue to recover a quarter section of land in Mississippi county. In 1885 James H. Thompson purchased said tract of land, which was swamp and overflowed land, from the state of Arkansas, paid the purchase price, and received a certificate of entry. He died in 1861, leaving surviving his widow, Ann Thompson, and two children, who continued in possession of the land. In 1870 the State Land Commissioner, upon proof being made by affidavit filed in his office of the loss of said certificate, issued a duplicate certificate to the widow, Ann Thompson; and on February 23. 1870, the Governor of the state executed to Ann Thompson his deed on behalf of the state, purporting to convey said land to her in fee simple. The deed contained a recital that "the Land Commissioner of the state of Arkansas did grant his certificate, dated the 12th day of February, 1870, and numbered 56, to and in favor of Ann Thompson, widow of James H. Thompson," for said land. It also recited that "Ann Thompson is entitled to a deed from the state of Arkansas for said lands," and purports to convey the same to "Ann Thompson and her heirs and assigns." The same language is employed in the habendum clause, and in no part of the deed is any reference made to the prior issuance of the certificate to James H. Thompson. This deed was duly recorded, and on January 2, 1900, said Ann Thompson, who had continued in possession of the land up to that time, sold and conveyed it to appellee, who paid a valuable consideration and claims to be innocent of any actual knowledge or information concerning the issuance of a certificate to James H. Thompson. Appellants pray that the appellee be declared to be a trustee for them as equitable owners of the land and that the same be decreed to them.

The preponderance of the testimony supports the finding of the chancellor that appellee had no actual knowledge of any infirmity in the title, and the only question of law presented for our consideration is whether or not he is chargeable with constructive notice of the purchase of the land by James H.

Thompson and the issuance to the latter of the certificate of entry.

It is a well-established principle of law that a purchaser of real estate must take notice of all prior recorded instruments in the line of his purchased title. Is a certificate of entry, issued by the state prior to the issuance of a patent to another person, to be considered in the line of title of persons holding under the patent, so as to charge them with notice of outstanding equities under the certificate? This court seems to have already answered this question in the negative. Osceola Land Co. v. Chicago M. & L. Co., 84 Ark. 1, 103 S. W. 609. In that case, which involved this question, Mr. Justice Riddick, speaking for the court, said: "Chatfield held under a patent from the state, and those who purchased from him could, in the absence of actual notice, rest upon the presumption that the officers of the state had done their duty and issued the patent to the person entitled to receive it." The same view is expressed by the Supreme Court of the United States in United States v. C. & O. Land Co., 148 U. S. 31, 13 Sup. Ct. 458, 37 L. Ed. 354.

My attention is now directed to the fact that Mr. Justice BATTLE and myself are noted as dissenting in the case of Osceola Land Co. v. Chicago M. & L. Co., supra. This is an error. We both concurred in the result reached by the court in that case, but differed with the other judges, who held that the tax confirmation decree in favor of Boynton had the effect of transferring any equitable right or title which Rozell may have had. We thought that the decree did not have such effect, and that for this additional reason the decree of the chancellor was erroneous, and should be reversed. We should have been noted as concurring in the result, but not in the opinion, instead of dissenting.

The

But it is contended by counsel for appellants that, conceding that appellee was not chargeable with constructive notice of the prior certificate of entry issued to James H. Thompson and the equitable title which passed thereunder, the recitals of the patent to Ann Thompson were sufficient to put him upon actual notice of the prior certificate. patent recites that it was issued upon a certificate issued from the land department "in favor of Ann Thompson, widow of James H. Thompson." It is argued that this recital was sufficient to indicate that Ann Thompson took the title as widow of James H. Thompson, and by virtue of her right as widow, and that it was notice to appellee that Ann Thompson held the title in trust for the heirs of James H. Thompson. Appellee was, of course, chargeable with notice of all recitals in the conveyance in the chain of his title; but we do not think this recital was sufficient to indicate that the conveyance was to Ann Thompson as widow, or by virtue of her rights as widow. The employment of

the words "widow of James H. Thompson" can only be regarded as descriptive of the person, and not as limiting the estate taken under the patent. 13 Cyc. 625; Jackson v. Roberts, 95 Ky. 410, 25 S. W. 879; Richardson v. McLemore, 60 Miss. 315; Barrett v. Cochran, 11 S. C. 29; Combs v. Brown, 29 N. J. Law, 36; Hart v. Seymore, 147 Ill. 598, 35 N. E. 246; Kenenbley v. Volkenberg, 70 App. Div. 97, 75 N. Y. Supp. 8. Decree affirmed.

JEFFERY et al. v. JEFFERY et al. (Supreme Court of Arkansas. Oct. 12, 1908.) 1. ADVERSE POSSESSION (§ 113*)-ADMISSIBILITY OF EVIDENCE.

In ejectment, where plaintiffs claimed under adverse possession of themselves and ancestors, evidence that plaintiffs' father had told them that the land belonged to their mother was not admissible to establish adverse possession, but only to show the character and extent of his possession.

[Ed. Note.-For other cases, see Adverse Possession, Cent. Dig. § 670; Dec. Dig. § 113.*] 2. ADVERSE POSSESSION (§ 13*)-REQUISITESOPEN AND NOTORIOUS POSSESSION.

To acquire title by adverse possession, there must be open, notorious, peaceable, continuous, and adverse possession of the land for more than seven years.

[Ed. Note.-For other cases, see Adverse Possession, Cent. Dig. § 65; Dec. Dig. § 13.*] 3. ADVERSE POSSESSION (§ 114*)-SUFFICIENCY OF EVIDENCE.

Admissions by defendant, holding the paper title to land, held not sufficient to establish title in others by adverse possession.

[Ed. Note. For other cases, see Adverse Possession, Cent. Dig. §§ 682-690; Dec. Dig. § 114.*]

Appeal from Circuit Court, Izard County; J. W. Meeks, Judge.

Ejectment by M. E. Jeffery and others against P. H. Jeffery and another. Judgment for plaintiffs, and defendants appeal. Reversed, and remanded for a new trial.

J. B. Baker, for appellants. McCaleb & Reeder, for appellees.

HART, J. This is an action of ejectment brought in the Izard circuit court by the plaintiffs, M. E. Jeffery, W. W. Jeffery, and R. M. Jeffery against the defendants, P. H. Jeffery and the Mt. Olive Stove Company, for the possession of the lands described in the complaint. Plaintiffs allege that their mother, Mary A. Jeffery, departed this life intestate on the 19th day of August, 1892, leaving them as her children and only heirs at law, and that at the date of her death she was seised and possessed of the lands described in the complaint; that the plaintiffs became tenants in common of said lands, subject to the curtesy of their father, Asa Jeffery, who held possession of the lands until his death, which occurred in June, 1906; that the plaintiffs

and their said ancestors have held the open, notorious, peaceable, continuous, and adverse possession of said lands for more than seven years continuously prior to the year 1904, claiming it as their own; and that they became the owners thereof by virtue of the statute of limitations. Defendants answered, denying the allegations of the complaint, and affirmatively set up title in themselves by virtue of a commissioner's deed, executed pursuant to the judgment and order of the probate court of Izard county. The evidence is sufficiently stated in the opinion in discussing the effect of it. There was a jury trial, and a verdict for the plaintiffs, and defendants have appealed.

Defendants contend that the verdict is not sustained by the evidence. In this they are correct. It is not disputed that the paper title is in the defendant P. H. Jeffery. In 1873, Asa Jeffery, the father of the plaintiffs, and Ambrose Jeffery, while they were partners in business, bought the land in controversy at a guardian's sale in the probate court, and executed their note for the purchase money. They were indebted to the defendant P. H. Jeffery for service rendered the firm, and assigned to him their certificate of purchase in payment therefor, and for the further consideration that he pay the balance due by them on the purchase money. This he did, and by order of the probate court the deed was executed to him, reciting the above facts. Plaintiffs claim title by the adverse possession of themselves and of their ancestors. In support of their claim they testified that their father, Asa Jeffery, had told them that the land in controversy belonged to their mother. These declarations were not admissible for the purpose of establishing adverse possession, but were only admissible to show the character and extent of his possession. Seawell v. Young, 77 Ark. 309, 91 S. W. 544.

The only other evidence is that of witnesses who testify that P. H. Jeffery had admitted to them that the land in controversy belonged to Asa Jeffery, and that he had paid a mare at one time and some cotton at another to Asa Jeffery, which witness M. E. Jeffery understood was for rent of the land. P. H. Jeffery explains that he had sold to Asa Jeffery a mare and took his notes for same, and that he sent M. E. Jeffery after them. He stated that block 6, which belonged to Asa Jeffery, and block 7, the land in controversy, were under a common inclosure by agreement, and that he rented both pieces to the same tenant in 1888; that he collected the rent, and sent half of it to Asa Jeffery by M. E. Jeffery.

Plaintiffs and their ancestors must have held the open, notorious, peaceable, continuous, and adverse possession of the lands for more than seven years, to amount to an investiture of title. Jacks v. Chaffin, 34 Ark.

534; Logan et al. v. Jelks, 34 Ark. 547; Crease v. Lawrence, 48 Ark. 312, 3 S. w. 196; Nicklace v. Dickerson, 65 Ark. 422, 46 S. W. 945. We do not think that the admissions testified to as having been made by P. H. Jeffery are sufficient to establish title by adverse possession.

The judgment is reversed, and the cause remanded for a new trial.

KNAUFF v. NATIONAL COOPERAGE & WOODENWARE CO. (Supreme Court of Arkansas. Oct. 12, 1908.) 1. QUIETING TITLE (§ 14*)-CONDITIONS PRECEDENT-PAYMENT OF TAXES.

Kirby's Dig. §§ 661-675, authorizing confirmation of tax titles and other titles under involuntary sales, provided petitioner shall have "paid taxes on the lands for at least two years after the expiration of the right of redemption," does not apply to an adversary suit to litigate conflicting titles and quiet the superior one, so as to require plaintiff to allege payment of such taxes, as the jurisdiction of chancery over such subjects is exercised independently of statute.

[Ed. Note.-For other cases, see Quieting Title, Dec. Dig. § 14.*]

2. TAXATION (§ 809*)-CONFIRMATION of Tax TITLE-COMPLAINT-SUFFICIENCY.

A complaint alleging that plaintiff was the owner of lands, claiming under a tax deed, that the lands were not occupied by an adverse claimant, and that defendant was asserting title thereto and paying taxes, states a cause of action to quiet title under the general equity jurisdiction of the court, irrespective of whether plaintiff was entitled to a general decree for confirmation of the tax sale, under Kirby's Dig. §§ 661-675.

[Ed. Note.-For other cases, see Taxation, Cent. Dig. § 1601; Dec. Dig. § 809.*]

Appeal from Prairie Chancery Court; Jno. M. Elliott, Chancellor.

Suit by O. O. Knauff against the National Cooperage & Woodenware Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded, with directions.

W. A. Leach, for appellant. Thomas & Lee, for appellee.

MCCULLOCH, J. Appellant filed his complaint or petition in chancery, alleging that he is the owner of certain lands in Prairie county, claiming title thereto under a clerk's deed executed July 21, 1905, pursuant to sale by the collector for delinquent taxes, and praying that his title to said lands be quieted. He also alleged that appellee is setting up a claim to said lands and has been paying taxes thereon from year to year, and he asked that appellee be made a party defendant in the suit. Appellee was brought in by service of summons, and filed its demurrer to the complaint, which the court sustained.

Appellee defends this ruling of the court on the ground that appellant fails to allege in his complaint that he had "paid taxes on

the lands for at least two years after the expiration of the right of redemption," in compliance with the requirements of the statute authorizing confirmation of tax titles and other titles under involuntary sales. Kirby's Dig. §§ 661-675. It is contended that a title under a tax sale or other involuntary sale mentioned in the statute cannot be quieted unless the terms of the statute be fully complied with. The vice of this contention is that it seeks to apply the requirements of the statute to adversary suits, such as this one, between parties for the purpose of litigating conflicting titles and quieting the superior one. The statute does not control in such suits, as the jurisdiction of chancery courts over such subjects is exercised independently of statute. The statute, in so far as it confers jurisdiction in such cases over which courts of equity formerly exercised jurisdiction, is to that extent merely declaratory of existing powers, and not a grant of additional powers. Hempstead v. Watkins, 6 Ark. 317, 42 Am. Dec. 696; Boyce v. Grundy, 3 Pet. 210, 7 L. Ed. 655.

The complaint alleges that the land is unoccupied by an adverse claimant and that appellee is asserting title thereto and paying taxes on the land. This states a cause of action in an adversary suit, and, if sustained by proof, is sufficient to entitle appellant to relief. The court should, under that state of the case, grant the relief prayed for by removing the alleged cloud and quieting appellant's title. Even if appellant is not entitled under the statute to a general decree for confirmation of the tax sale, the complaint states a case for relief in this adversary suit against appellee, and it was error to sustain a demurrer to the complaint, which is at least good to the extent that it states grounds for equitable relief against appellee.

Reversed and remanded, with directions to overrule the demurrer to the complaint.

KITCHENS, Public Adm'r, v. JONES et al. (Supreme Court of Arkansas. Oct. 12, 1908.) 1. EXECUTORS AND ADMINISTRATORS (§ 181*)WIDOW'S ALLOWANCE STATUTES CONSTRUCTION.

A widow's allowance authorized by Kirby's Dig. § 3, to the extent of $300, can only be granted out of the decedent's personal estate.

[Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. § 681; Dec. Dig. 181.*]

2. CONVERSION (§ 6*)-EQUITABLE CONVERSION -SURPLUS ON FORECLOSURE.

An equity of redemption in mortgage proerty being an estate subject to all the incidents of ownership, a surplus arising on a foreclosure sale of land belonging to a decedent's estate is not thereby converted into personalty, but partakes of all the incidents of real estate.

[Ed. Note.-For other cases, see Conversion, Cent. Dig. § 10; Dec. Dig. § 6.*]

3. EXECUTORS AND ADMINISTRATORS (§ 181*)—
WID-
MORTGAGE FORECLOSURE-SURPLUS -
OW'S ALLOWANCE.

The status of a decedent's estate being fixed as of the date of his death, a surplus arising on a subsequent sale of his land on mortgage foreclosure was not available for the payment of an allowance to the widow, but was distributable to the widow and children as realty, according to the statute of descent and distribution.

[Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. § 681; Dec. Dig. § 181.*]

Appeal from Circuit Court, Phillips County; Hance N. Hutton, Judge.

Petition by Charity Jones and others against F. F. Kitchens, public administrator. Judgment for petitioners, and defendant appeals. Reversed and remanded.

Campbell & Stevenson and J. M. Vineyard, for appellant. M. L. Stephenson, for appellees.

HILL, C. J. John Jones died in April, 1906, leaving a widow and children, some of whom were minors. At the time of his death he was the owner of certain real estate in the city of Helena, which was incumbered by a deed of trust. Default had occurred in the performance of the conditions of the deed of trust before his death, and, after his death, the deed was foreclosed in the chancery court, and the property sold by a commissioner of the court to satisfy the mortgage debt. The proceeds of the sale paid off the mortgage and left a surplus of $554.57, which was turned over by the commissioner in chancery to Kitchens, public administrator, who was administering the estate of Jones. The land was not the homestead of the deceased. The dower rights of the widow had been released in the trust deed. This surplus was the only asset of the estate, which was insolvent. Charity Jones filed a petition in the probate court of Phillips county, representing that she was the widow, and that there were minor children, of the said John Jones, deceased; that the estate of her husband exceeded $300 in value; and she prayed that the sum of $300 be paid to her out of said fund for the use of herself and minor children. Trial was had in the probate court, and, on appeal, in the circuit court, upon an agreed statement of facts. The circuit judge granted the petition, and the administrator has appealed.

This appeal involves a construction of section 3 of Kirby's Digest, which reads as follows: "When any person shall die leaving a widow and minor children, or widow or minor children, and it shall be made to appea. to the court that the personal estate of such deceased person does not exceed in value the sum of three hundred dollars, the court shall make an order vesting such personal property absolutely in the widow and minor children, or widow or minor children, as the case may be, when the court is satisfied that rea