Mrs.

against A. C. Franklin and James Franklin in the Sumner chancery court; and, as A. C. Franklin was insolvent in Tennessee, I brought suit against him in Texas, and attached his interest in some land there, and to sell the interest that James Franklin had in said land; and the land was sold by decree in said Texas court, and I have realized from the same the sum of $800, which I deposited January 20, 1893, in the First National Bank at Gallatin. The attorney's fees were paid before sending me the same, and I paid the costs incident to the same in advance, which were in amount sent T. W. Gregory, my attorney. There is still due there some $800, and I have a suit in the Sumner chancery court against A. C. Franklin and others to reach the balance due which the land did not sell enough to pay." Beyond this, the facts are stated by Mrs. Franklin that on the judgment recovered in Tennessee she brought suit in Texas as executrix of James Franklin, deceased. Franklin brought suit in connection with her son, Harry Franklin, and in her own right and as executrix. The suit was brought in Williamson county, Tex. Certain land belonging to A. C. Franklin (being an undivided one-third interest in a certain tract of land) was attached. The result of this suit was that the complainants recovered judgment for the sum of $2,130.15, and the land attached was ordered to be sold, and was bought in by the plaintiffs, or for them, at the price of $400, which amount, less the costs, was credited on the judgment, and a deed executed by the sheriff conveying the interest to Bettie P. Franklin. Suit was afterwards brought by Mrs. Franklin and Harry, as owners of two-thirds, together with Walter Franklin, as owner of one-third, to recover the tract of 400 acres of land, in which Mrs. Bettie P. Franklin and Harry Franklin had bought this one-third from a man by the name of McLaurin, and possibly other parties. It was subsequently shown that Walter Franklin had conveyed his interest to James Franklin, so that Bettie P. and Harry Franklin were claiming the entire tract of 400 acres of land. On May 26, 1893, a compromise arrangement and agreement was entered into with McLaurin, and Bettie P. Franklin executed a Ideed to McLaurin for a one-third interest. Subsequently, in the fall of 1897, Harry Franklin and Bettie P. Franklin, as an individual and as executrix and trustee under the last will of James Franklin, executed a deed purporting to convey the balance of the 400 acres to McLaurin. For this the consideration was $2,928.30. But it was for the one-third sold by the first deed, on which Mrs. Franklin realized the net sum of $800, that the report made by her in her inventory was based; and this, according to the statement in her inventory, was evidently the proceeds of the one-third which had formerly belonged to A. C. Franklin, and which

she held subject to the debt she had in favor of the estate against A. C. Franklin. Now it is insisted that, in any event, she could only be held liable for a part of this, because it is said that included in the judgment which she obtained against A. C. Franklin in Texas was a claim for some $500, which had been in the shape of a judgment against A. C. Franklin in favor of James Vaughan, and that she had purchased this judgment and was entitled to this individually. It does not affirmatively appear, however, so far as we can gather from this record, that she had purchased this with her own means. It does appear from the decree which she took against Franklin in Texas that she was claiming the entire judgment, together with her son Harry, under the will of James Franklin, and that she was claiming it there as a part of the assets belonging to his estate, and she so reported it in her inventory which accompanied her answer to the original bill filed in these cases. So, according to her own statement, and really according to the facts as we gather them from the record, this was an asset belonging to the estate of James Franklin, which came into her hands, and on which she brought suit and recovered in Texas, and on which she realized by the process of collection mentioned the sum of $800; and for this sum we think she should be required to account, and she will be charged with it in her settlement with the administrator. But if it shall appear that she paid out any sums in the purchase of any part of this judgment, as in the purchase of the Vaughan judgment, she will, of course, be credited with such sums so paid out. It is insisted, however, that the will of James Franklin was not contested in Texas, but was probated in that state in 1892, and that it has never been contested or set aside there. And the proof also shows that, two years having elapsed since the probate of the will there without contest, no contest could be now instituted there; and it is insisted that this sum was claimed and recovered under this will so probated, which was adjudged to her under the will, and it cannot now be brought into question by litigation in this state. In our opinion, however, the litigation in Texas was merely ancillary to the proceedings in Tennessee. But, in any event, when this suit was brought here to sequester, impound, and protect the estate of James Franklin, deceased, by the original bill filed in this case, Mrs. Franklin (now De Grunebaum) submitted this matter to the jurisdiction of this court, and reported this claim as one of the matters to be settled by the adjudication in this case; and we think she cannot now, after having so submitted the question to the adjudication of the court, be heard to allege that it was settled and determined by the adjudication of the Texas courts. For this reason, we think there was no error in the last de

cree of the chancellor upon this $800 Texas item, and the same will therefore be affirmed.

The costs of the cause, including the costs of this appeal, will be paid out of the funds in the hands of the administrator; the costs taxed in this case being certified in the other case now admitted to be pending in the chancery court of Sumner county for the winding up of this estate.

As stated in the former part of this opinion, after the cause was remanded to the chancery court, and before final decree was rendered, a bill of review on behalf of Mrs. De Grunebaum and her son, Harry Franklin, was filed. The same was demurred to, the demurrer sustained, and the bill dismissed, and that cause was appealed. Both causes were heard at the same time in this court, and, while there has been no further order of consolidation, we now consolidate the same, to the end that they may be more conveniently disposed of together. This bill of review simply sought to review the entire proceedings in this case for error apparent upon the face of the record. The demurrer was because no final decree had been entered in the case. We are of opinion that the cause of demurrer was well taken, and the bill properly dismissed. While there were many errors apparent, as we have pointed out, in the previous proceedings, still at the time this bill was filed there was no final decree in the case, and a bill of review only lies to review a final decree, or a cause after final decree. In any event, nothing can be accomplished by it now, as the entire case is before us, and the bill of review can serve no purpose that we can see. The decree of the chancellor dismissing the bill of review is in all things affirmed. The costs of this bill, including the costs of the appeal in this branch of the case, will be paid by the complainant to the bill of review. All concur.

Affirmed orally by supreme court, March 10, 1900.

SALINGER et al. v. BLACK et al. (Supreme Court of Arkansas. Dec. 8, 1900.)

EXECUTORS AND ADMINISTRATORS-LIMITATION OF ACTIONS-JUDICIAL SALES-RECOVERY OF PROPERTY - EVIDENCE - DOWER MORTGAGED LAND-COMPELLING CONTRIBUTION TO REDEEM-FORECLOSURE OF MORTGAGES-ACCOUNTING-RIGHT OF WIDOW TO RENT BEFORE ASSIGNMENT OF DOWERWAIVER-CREDITS WHEN DETERMINED.

1. Defendant purchased lands from the person to whom she and her co-administrator had conveyed them under order of the probate court, and was in open and adverse possession of them, controlling them, and receiving the rents and profits, for more than five years before an action was commenced to have her declared holder of the title for the benefit of her intestate's estate. Defendant pleaded the five-years statute of limitation, and plaintiffs claimed that they were prevented from suing before by defendant's fraud; but they did not

show how they came to be ignorant of their rights for so long, and the means used by defendant to fraudulently keep them in such ignorance, and how and when they first discovered that the lands were purchased for defendant by the purchaser at the judicial sale. Held, that plaintiffs could not maintain the action, since they had not shown facts preventing the running of the statute of limitations.

2. Where lands assigned to widow as dower were sold by her and her co-administrator at public sale under an order of the probate court, subject to her dower, the sale will not be held invalid, and the purchaser decreed a holder of the lands in trust for the creditors and heirs of the deceased, in the absence of a showing by plaintiffs that the sale was fraudulent.

3. Where lands of a deceased were redeemed from mortgage by the application of general assets of the estate to its payment, under order of the probate court, in the erroneous belief that the estate was solvent, and part of the lands so redeemed were assigned to the widow as dower, she cannot hold dower therein, free of charge, some of the debts remaining unpaid, unless she pays her proportionate and equitable share of the sum paid to redeem, since, though entitled to dower in the lands subject to the mortgage, she was not entitled to an appropriation of the personal estate to relieve the lands from incumbrances.

4. Decedent's administrators, having redeemed his lands from mortgage, are subrogated to the right of the mortgagees to collect so much of the mortgage debt as is equal to the widow's share of the amount paid to redeem, by causing the interest assigned to her as dower to be sold for the purpose of foreclosing the mortgages to that extent, without an assignment or act of transfer of the mortgages, since they hold such right for the benefit of the creditors, as quasi assignees for the purpose of contribution.

5. Mortgages on the lands of a decedent were redeemed before payment of his other debts by the use of general assets of the estate, by or der of the probate court. The notes secured by the mortgages were not barred by the statute of limitation at the time of the maker's death, and they were properly presented against his estate within the time limited. Before the

close of the administration of the estate, credItors sued to be subrogated to the rights of the mortgagees, and for foreclosure suflicient to pay their claims. Held, that such action was not barred by Sand. & H. Dig. § 5094, providing that a suit to foreclose a mortgage is barred, if it is not brought within the time limited for a suit on the debt secured by it, since the maker having died before suit on the notes was barred, and they having been properly presented against his estate, limitations did not run against them until the close of administration on his estate.

6. Where decedent's widow, who was also his administratrix, charged herself with the rents of the farm attached to the chief dwelling house of her husband accruing during the three years before her dower was assigned, she was not afterwards entitled to a credit for such rents, under Sand. & H. Dig. § 2537, providing that, unless dower is assigned within two months from the husband's death, his widow may occupy his chief dwelling and the farm attached thereto free of all rent until dower is assigned to her, since, by charging herself with such rents in her annual settlements, she waived her rights thereto under the statute.

7. In an action by creditors of a decedent to have lands held by his widow, who was his administratrix, which were redeemed from mortgages by the use of general assets of the estate under order of the probate court, and sold by authority of the court, declared held in trust for their benefit, and that the administration accounts be surcharged and falsified,

the claim of the widow to certain credits as administratrix, which the probate court authorized her to take at some future settlement to be filed by her, and for which she had not asked credit in any settlement, will not be considered, her administration being still open.

Appeal from Monroe chancery court; John C. Hawthorne, Special Chancellor.

Action by Bena Black, as administratrix of the estate of William Black, deceased, and others, against Mittie Salinger and another, to have defendants declared trustees of certain lands for the benefit of the creditors and heirs of Saul Salinger, deceased, for an accounting of the rents and profits thereof, and for subrogation to the rights of mortgagees in the lands, and for foreclosure of the mortgages to pay claims against the estate. From a judgment in favor of plaintiffs, except as to part of the lands, both parties appeal. Affirmed in part, and reversed in part.

Manning & Lee, C. F. Greenlee, and Norton & Prewett, for plaintiffs. Jos. W. House, for defendants.

BATTLE, J. On the 21st day of August, 1883, Saul Salinger died intestate, leaving surviving him Mittie Salinger, his widow, but no children. He died seised and possessed of personal property and lands. Letters of administration were granted by the Monroe probate court to Louis Salinger and Mittie Salinger, authorizing them to administer his estate. One-half of the personal estate was set apart, by order of the probate court, to the widow as dower.

Among the lands which belonged to the estate of Saul Salinger at the time of his death were the following: The N. 1⁄2 of the S. E. 4, and the S. E. 4 of the S. W. 4, and the S. 1⁄2 of the S. E. 4, and the N. 1⁄2 of the S. W. 4, of section 8, the S. W. 4 of section 9, the N. E. 4 of the N. W. 4, and the N. E. 4 and the N. 1⁄2 of the S. E. 4, of section 17, in township 4 N., and in range 2 W. These lands were incumbered by mortgages, which were executed by Saul Salinger, in his lifetime, to Furstenheim & Wellford, to secure a debt he owed to them. Mrs. Salinger joined in the execution of the mortgages, and relinquished her dower in the lands. On the 14th of April, 1884, Mrs. Salinger and her co-administrator filed a petition in the probate court of Monroe county, representing that it would be to the interest of the estate of Saul Salinger, deceased, and not to the injury of the creditors, to use the general assets of the estate to redeem these lands. On the same day the petition was granted by the court, and the administrator and administratrix were authorized and directed to pay the debt secured by the mortgages out of the general assets of the estate; and they thereafter, at different times, paid in discharge of the debt, out of the assets of the estate, no part of which constituted the dower of the widow, the sum of $31,

859.72. The debt so paid had been previously probated against the estate. At the time the order to redeem was made the debts other than the mortgage debt, which had been probated against the estate, amounted to only $968, and the estate appeared to be solvent.

On the 14th day of November, 1885, commissioners appointed by the Monroe probate court set apart and allotted to Mrs. Salinger, as a part of her dower, the following lands: The S. E. 4 and the S. E. 4 of the S. W. 4. and the N. 1⁄2 of the S. W. 14, of section 8, the S. W. 4 of section 9, and the N. E. 4 of the N. E. 4 of section 17, in township 4 N., and in range 2 W., which were a part of the lands incumbered by the mortgages and redeemed as before stated. They reported their proceedings to the probate court, and it approved their action.

On the 1st day of June, 1887, the administrator and administratrix sold, under an order of the probate court, the following, among other, lands: The N. W. 4 of the N. W. 4, and the N. E. 4 of the N. W. 1⁄4, and the S. 1⁄2 of the N. E. 4, and the N. 1⁄2 of the S. E. 4, of section 17, in township 4 N., and in range 2 W., and I. T. Andrews purchased them, he being the highest bidder. On the 18th day of April, 1890, the administrator and administratrix, under the same authority, sold, at vendue, to the same purchaser, the land assigned to the widow, described above, subject to her dower. Both sales were reported to, and confirmed by, the probate court; the former at its October term, 1887, and the latter at its April term, 1891. The administrators conveyed to Andrews the lands sold to him on the 1st of June, 1887, by deed bearing date the 1st of March, 1888, which has been recorded. They also conveyed to him the reversionary interest in lands, which he purchased on the 18th of April, 1890. On the 30th of May, 1888, Andrews conveyed to Mrs. Salinger the lands purchased by him on the 1st of June, 1887, receiving for the same $300 more than it cost him. She filed her deed for record on the 19th of June, 1888, and immediately after her purchase took possession of the land, and held it adversely to all persons, and cultivated and improved it as her own.

The administrators filed as many as six annual accounts current, showing their debits to the estate and the credits to which they are entitled. The administration of the estate is still open.

On the 27th of October, 1893, certain creditors of the estate and the heirs of Saul Salinger, deceased, commenced a suit against Mittie Salinger (Louis Salinger having died) and I. T. Andrews, alleging that the purchases of real estate by Andrews on the 1st day of June, 1887, and on the 18th of April, 1890, were made for the use and benefit of Mrs. Salinger, and asked that Mrs. Salinger and Andrews "be decreed to hold said lands in trust for the creditors and heirs of Saul

Salinger, deceased; that an accounting be had of rents and profits to the end that the debts of said estate may be paid, and distribution of any surplus made to heirs." In May, 1894, they filed an amendment to their complaint, in which they alleged the foregoing facts as to the mortgage of land to Furstenheim & Wellford, the redemption of the same, and the assignment of dower to widow in a part of the same, and asked that they be subrogated to the rights of Furstenheim & Wellford under the mortgages, and for the foreclosure of the same, to the extent it may be necessary to pay the claims probated against said estate. They filed many other amendments, alleging that the settlements filed contained many errors, and asked that the same be surcharged and falsified. The defendants answered, and denied that Andrews purchased the real estate for the use and benefit of Mrs. Salinger, and alleged that he purchased the same in good faith for himself, and pleaded the five and seven years statutes of limitation in bar of the action.

After hearing the evidence adduced at the hearing, the court found that the lands sold on the 1st of June, 1887, were purchased by Andrews for Mrs. Salinger, and that she holds the title to the same for the benefit of her intestate's estate; that the purchase of real estate by Andrews at the sale on the 18th of April, 1890, was made in good faith and valid; that Mrs. Salinger was not entitled to dower in the lands mortgaged to Furstenheim & Wellford, and is responsible for the rents she has received for the same; and that the mortgages in favor of them be foreclosed for the benefit of the plaintiffs, and that the life estate assigned to the widow in the lands thereby incumbered as dower be sold to satisfy the same; and decreed that the creditors of the estate of Saul Salinger, deceased, be subrogated to the rights of Furstenheim & Wellford under the mortgages in their favor; and that the lands purchased by Andrews at the sale on the 1st of June, 1887, and the life estate set apart to Mrs. Salinger as dower in the lands mortgaged to Furstenheim & Wellford, be sold at public sale to pay the unpaid debts probated against said estate, and for other purposes; and the defendants appealed; and from so much of the decree as found the purchase of the reversionary interest in the lands by Andrews at the sale on the 18th of April, 1890, to be in good faith and valid, the plaintiffs appealed.

It appears from the allegations in the complaint of the plaintiffs that Mrs. Salinger has been in the possession of the lands sold on the 1st of June, 1887, and purchased by Andrews, at all times since the sale, controlling the same and enjoying the profits thereof; and, although it is not expressly alleged, it clearly appears from the complaint that she has been in the open and adverse possession of the same for more than five years before the commencement of this suit. The de

fendants having pleaded the five-years statute of limitation, it devolved upon the plaintiffs to prove that their suit came within some exception to the general rule adopted by the statute. They claim they were prevented from suing at an earlier day by the fraud of the defendants. To maintain their suit upon that ground, they should have shown by evidence how they came to be so long ignorant of their rights and the means used by the defendants to fraudulently keep them in ignorance, and how and when they first came to a knowledge of the fact, if it be a fact, that the lands were purchased by Andrews for Mrs. Salinger. Having failed to do this, they are barred by the statute pleaded from maintaining this suit. McGaughey v. Brown, 46 Ark. 25; 2 Greenl. Ev. (16th Ed.) § 448, and cases cited; 2 Wood, Lim. Act. (2d Ed.) § 276, and cases cited.

But the plaintiffs contend that the fiveyears statute of limitation has no application to this case. What was said in Hindman v. O'Connor, 54 Ark. 641, 16 S. W. 1056, 13 L. R. A. 497, in response to a like contention, may be appropriately said in response to plaintiffs' contention in this case. In the case cited this court said: "Mrs. O'Connor relies on the five-years statute of limitation to sustain her title. That statute provides: 'All actions against the purchaser, his heirs or assigns, for the recovery of lands sold at judicial sales shall be brought within five years after the date of such sale, and not thereafter; saving to minors and persons of unsound mind the period of three years after such disability shall have been removed.' Mansf. Dig. § 4474. Appellants insist that that statute has no application to an action like this, the object of which is to set aside a sale of land for fraud. So McGaughey v. Brown, 46 Ark. 25, was an action to set aside a sale of land for fraud. The prayer of the bill in that case was that the sale be set aside; that a master be appointed to take an account of the rents and profits; that the conveyances of the land, which were alleged to be fraudulent, be removed as a cloud upon the title of plaintiffs; and that they be put into the possession of the land. This court held that the object of the bill was to get possession of the land, and that the action was barred by the five-years statute. In this case [Hindman v. O'Connor] the prayer of the complaint is that the sale be set aside; that an account be taken between the plaintiffs and defendants as to the rents and profits of the block in question and the sums paid by defendants for the benefit of plaintiffs, and that the correct and true balance be ascertained between them,' and that said property be sold for purposes of partition and to satisfy the balance found by the master, and other relief. One of the obvious objects of the complaint was the recovery of the land. That was necessary to accomplish the purpose of the action. The statute applies."

In the case before us the prayer of the

complaint is that the defendants, Mittie Salinger and I. T. Andrews, be decreed to hold said lands in trust for the creditors and heirs of Saul Salinger, deceased; that an accounting be had of the rents and profits, to the end that the debts of said estate may be paid, and that the distribution of any surplus may be made to the heirs; and for other relief. One of the obvious objects of the suit was the recovery of the lands. How could the possession of the lands held by Mrs. Salinger in her own right be transferred to the defendants as trustees? How could they be used for the purpose of paying the debts of the estate unless they were recovered? That was necessary to accomplish the purpose of the suit. The statute applies.

We see no sufficient reason for disturbing the finding of the court as to the validity of the purchase by Andrews of the reversionary interest in lands at the sale on the 18th of April, 1890. It is presumed to be bona fide until the contrary is shown. The burden of showing that it was fraudulent was upon plaintiffs. They have failed to do so.

The circuit court erred in holding that Mrs. Salinger was not entitled to dower in the lands mortgaged to Furstenheim & Wellford. She was entitled to dower therein subject to the mortgages, but she was not entitled to an appropriation of the personal estate to relieve the lands from the incumbrance upon them. Hewitt v. Cox, 55 Ark. 225, 15 S. W. 1026, 17 S. W. 873.

When the interest in the land which was assigned to her as dower was redeemed by the payment of the mortgage debts, she received more than she was entitled to. At the time the probate court directed the administrators to redeem the lands from the mortgages the estate of Saul Salinger, deceased, appeared to be solvent, but the reverse proved to be true. The result was, assets that should have been used in paying the debts of the estate were appropriated to the redemption of the lands. The creditors virtually redeemed the lands, including the widow's dower in the same, and are entitled to be reimbursed in some manner and to some extent on account of moneys expended in the redemption.

Mrs. Salinger should not be required to pay the whole of the mortgage debt in order to redeem the interest in the lands mortgaged which were assigned to her as dower. She was under no personal obligation to do So. The mortgages were a burden upon the lands, and the payment of them by her was not a personal debt. But the creditors having redeemed in the manner stated, and all the estate in the lands incumbered, except her dower interest, having been sold, and the proceeds of the sale having been appropriated to the part payment of their claims, and the debts of the estate being still unpaid, she is not entitled to hold dower in the lands free of charge, unless she pays her proportionate and equitable share of the sum paid

to redeem. That share can be ascertained by finding out what part of the total value of all the lands incumbered by the mortgages the value of the estate in fee in so much thereof as was assigned to the widow is, and by setting apart such part of the sum paid to redeem to the lands allotted to the widow. Her part of the sum so paid will be equal to the sum of an annuity of the amount of one-half of the interest upon the sum so set apart, at the time of such payment, for the residue of her life. To illustrate: If the value of the fee in the lands assigned to her was one-half of the total value of the lands mortgaged, and the sum paid to redeem was $30,000, her share of this amount will be a sum which will be equal to the value of an annuity of the amount of one-half of the interest upon $15,000, at the time of the payment, for the residue of her life. Bell v. Mayor, etc., 10 Paige, 49, 71; House v. House, Id. 158, 164; 1 Scrib. Dower (2d Ed.) pp. 537, 539.

The administrators of Saul Salinger, deceased, who represented the creditors, having redeemed the lands, are subrogated to the right of the mortgagees to collect so much of the mortgage debt as is equal to the widow's share of the amount paid to redeem, by causing the interest assigned to her as dower to be sold for the purpose of foreclosing the mortgages to that extent. They hold this right for the benefit of the creditors, without any assignment or act of transfer, as quasi assignees, for the purpose of compelling contribution. Sheld. Subr. (2d Ed.) § 45, and cases cited; 3 Pom. Eq. Jur. §§ 1222, 1223.

The defendants argue that the lands were redeemed in pursuance of an order of a court having jurisdiction to make it, and therefore cannot be again charged with the mortgage debt. There is no occasion for disregarding or setting the order aside. It was made under a mistake of fact. At the time it was made it was thought that the estate was solvent, and that it could be made without injury to the creditors. But this was afterwards discovered to be a mistake. Treating the redemption as having been lawfully made, the question is, ought the widow or her dower, under the circumstances, be made to contribute any part of the sum paid to redeem?

In Wilson v. Harris, 13 Ark. 559, the administrator made a final settlement, and delivered the residue of the assets in his hands to the widow and heirs of his intestate, and was discharged by the court. At the time the order discharging him was made a demand which had been duly probated against the estate remained unpaid, and was overlooked. This court held that the unpaid creditor had the right to file a bill against the widow and heirs for contribution and payment of his demand. So, in this case, the widow has received the benefit of assets which should have been appropriated to the