license of the probate court should ever be granted to sell real estate to pay or discharge debts or claims which have been suffered to lie more than three years after administration granted without being paid, except in an exceptional case." And when an exceptional reason exists for extending the time, the administrator must make his application to sell within a reasonable timeafter the cause for delay has been adjusted or ceased to exist, or his applica tion will be refused. Application to sell, filed fifteen years after his appointment, is not made within a reasonable time. In Michigan, under the same rule, the right of the administrator to sell land is barred in six years, unless some special reason for the delay is shown: Church v. Holcomb, 45 Mich. 29; In re Moores, 84 Mich. 474. In New York his right is barred in three years from the grant of administration: Slocum v. English, 62 N. Y. 494; Platt v. Platt, 105 N. Y. 488.

Laches, Rule against, when Strictly Applied. — The rule that when a claim against an estate is barred by delay in presenting it, the right of the adminis trator to apply for an order to sell land belonging to the estate in payment of claims is also barred, should be more strictly applied when the land has passed into the hands of the heirs or of innocent purchasers, than in cases where it still remains in the hands of the administrator: Ferguson v. Scott, 49 Miss. 500; Hall v. Woodman, 49 N. H. 295; Creswell v. Slack, 68 Iowa, 110; although it has been decided, in one state at least, that the right of the administrator to sell the land will not be barred by delay, where the decedent's real estate remains in the hands of the heirs: Mowry v. Robinson, 12 R. I. 152.

Laches under Particular Statutes. Under special statute, in Pennslyvania, the lands of the decedent continue liable for the payment of his debts, in the hands of his widow and heirs, for five years after his death, and unless claim is reduced to judgment within that time, it is barred by lapse of time. If reduced to judgment within the five years, the lien of the judgment continues the lien of the claim five years longer, and if the land is not sold within the ten years, the claim of the creditor and the right to sell the decedent's land in payment thereof are barred by lapse of time: Hope v. Marshall, 96 Pa St. 395; Allen v. Krips, 119 Pa. St. 1; 125 Pa. St. 504. In North Carolina, an administrator cannot sell lands of the decedent to pay his debts, when thedevisee has sold such land more than two years after the grant of administration; nor when such lands were sold by the devisee during the two years, and after its expiration sold by his vendee to a purchaser for value without notice: Davis v. Perry, 96 N. C. 260; Murchison v. Whitted, 87 N. C. 465.

Reasonable Delay, What will or will not Excuse. The cases uniformly hold, that though by strict analogy to statutes of limitation or of non-claim against administrators, or otherwise, the right of the personal representative of the deceased or of his creditor to subject his land to the payment of his debts may be barred by lapse of time when the application to sell is made, still the delay, if reasonable, may be excused, and the application granted, when a satisfactory explanation for such delay is furnished. Thus the fact that the petition of an administrator for leave to sell real estate of the decedent for the payment of debts is not filed until some months after the expiration of the time for filing claims against the estate is sufficiently excused by showing that the property could not have been sold sooner without great sacrifice, because the value of real estate was depreciated, and there was no demand for or opportunity to sell the same: Conger v. Cook, 56 Iowa, 117; Faate of Montgomery, 60 Cal. 645. So the delay may be satisfactorily ex,plained by showing that the estate remains unsettled, that its settlement has been necessarily delayed, and that the lands remain in the same condition as

when the decedent died, or that they remain in the hands of the heirs, and that no equities have intervened: Moore v. Ellsworth, 51 Ill. 308; Bursen v. Goodspeed, 60 Ill. 277; In re Allen, 15 Mass. 58; Palmer v. Palmer, 13 Gray, 326. So if the estate has not been closed, the will itself may furnish a satisfactory explanation for the delay, if it appears therefrom that it was not intended that the estate should be closed within the time allowed for presenting claims against it: Church v. Holcomb, 45 Mich. 29; In re Moores, 84 Mich. 474. On the other hand, a delay of ten years after grant of administration in applying for an order to sell real estate of the decedent to satisfy his widow's award is not excused by the fact that the records and files of the probate court were destroyed by fire: Furlong v. Riley, 103 Ill. 628. So a delay of thirteen years in making application to sell a lot assigned to the widow as part of her dower is not satisfactorily explained by the fact that she always has occupied and still continues to occupy it as her homestead: McKean v. Vick, 108 IIL 373.

GILKERSON-SLOSS COMMISSION Co. v. FORBES.

[54 ARKANSAS, 148.]

MORTGAGE OF HOMESTEAD BEFORE ISSUANCE OF PATENT. - When a person has done everything necessary under the homestead laws to entitle him to a patent for a tract of public land, he may mortgage it before the patent therefor is issued to him, and such mortgage may be enforced.

Edward H. Mathes, for the appellants.

BATTLE, J. This action was instituted by Gilkerson-Sloss Commission Company to foreclose a mortgage executed by E. Forbes and his wife upon land acquired by Forbes from the United States under the homestead act of Congress. It was executed after Forbes entered the land and made the proof of residence and cultivation necessary to entitle him to a patent, and after he had received from the proper officer a final receipt, but before the issuance of the patent, and was given to secure a note executed at the same time. The court below held that this mortgage was void, and dismissed the action.

The judgment of the lower court was evidently based on section 4 of an act of Congress entitled "An act to secure homesteads to actual settlers on the public domain," approved May 20, 1862, which provides: "No lands acquired under the provisions of this act shall, in any event, become liable to the satisfaction of any debt or debts contracted prior to the issuing of the patent therefor." Does it sustain the judgment of the court?

When a person does everything that is necessary to entitle him to a patent for a tract of public land, he becomes the

equitable owner thereof. The land is segregated from the public domain, ceases to be the property of the government, and in the absence of limitations and restrictions legally imposed, becomes subject to private ownership, and all the incidents and liabilities thereof: Simmons v. Wagner, 101 U. S. 260; Deffeback v. Hawke, 115 U. S. 392; Wirth v. Branson, 98 U. S. 118; Carroll v. Safford, 3 How. 441; Myers v. Croft, 13 Wall. 291. Section 4 of the homestead act was certainly not intended for any such restriction or limitation. But it was intended for the protection of the settler, and as an inducement to him to settle upon, cultivate, and improve the public land, by assuring him that he should not be disturbed and his land taken from him by his creditors, by virtue of legal process founded on any debt contracted before his patent was issued. The language of the section is: "No lands acquired under the provisions of this act shall, in any event, become liable," etc. Shall become "liable," that is, subject to be taken without express or tacit stipulation under the rules of law or equity. It was not intended as a prohibition upon the right of the settler to alienate by deed or mortgage after he becomes entitled to a patent. It would illy comport with the spirit of the act to place such a restriction upon the power of the settler. The tendency of it would be to defeat the object of the act by making the acquisition of land thereunder less desirable; for it is well known that patents do not issue in the usual course of business in the general land-office until several years after the final receipt or certificate of entry is given; and such a restriction would for many years deprive the settler of a source of credit which might, in many cases, be valuable. In short, it would be an injury to the prudent and necessitous settler, and serve no important purpose of public policy.

The limitation on the right to alienate imposed by the homestead act is confined to the period which expires when the settler becomes entitled to a patent. In order to prevent him defeating the object of the act, he is required to make an affidavit, upon applying and before he is permitted to enter, that his application to enter is made for his exclusive use and benefit, and that his entry is made for the purpose of actual settlement and cultivation, and not either directly or indirectly for the use or benefit of any other person, and after the expiration of five years to prove, by two credible witnesses, that he has resided upon or cultivated the land entered by

him for the term of five years immediately succeeding his entry, and make an affidavit that no part of the land has been alienated, except for church, cemetery, or school purposes, or for right of way for railroads. After this, there is no express limitation in the act upon the right of the settler to alienate. This clearly indicates that the intention of the act is, that he shall be free to dispose of the land as he wishes after he becomes entitled to a patent to the same.

Our conclusion is, that a creditor cannot in any manner acquire an involuntary lien on land acquired by his debtor under the homestead laws of the United States to secure a debt contracted before the issuance of the patent, but that the owner of the land can mortgage it, after he becomes entitled to a patent, to secure such debts: Cheney v. White, 5 Neb. 261; 25 Am. Rep. 487; Jones v. Yoakam, 5 Neb. 265; Nycum v. McAllister, 33 Iowa, 374; Newkirk v. Marshall, 35 Kan. 77; Webster v. Bowman, 25 Fed. Rep. 889; Lewis v. Wetherell, 36 Minn. 386; 1 Am. St. Rep. 674.

The judgment of the court below is reversed, and the cause is remanded, with instructions to sustain the demurrer to the appellees' answer, and for other proceedings not inconsistent with this opinion.

PUBLIC LANDS - MORTGAGE OF HOMESTEAD BEFORE ISSUANCE OF PATENT. -A valid mortgage may be given by one who has made entry under the homestead laws of the United States, upon the land so entered, before he has received the certificate therefor: Lang v. Morey, 40 Minn. 396; 12 Am. St. Rep. 748, and note; Lewis v. Wetherell, 36 Minn. 386; 1 Am. St. Rep. 674, and note.

WOOSTER V. Cavender

[54 ARKANSAS, 153.]

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MORTGAGES-RELEASE BY MISTAKE — EQUITABLE RELIEF. — A prior mortgagee who, in good faith and without culpable negligence, has released' the lien of his first mortgage, and has taken a second mortgage to secure his debt, in ignorance of an intermediate mortgage on the same premises, may have the lien of his prior mortgage restored in equity, provided it can be done without working hardship or injustice to innocent parties. The fact that the intermediate mortgagee has made advances after the release of the prior mortgage, with full notice of the nature of the transaction, will not bar relief.

Samuel R. Allen, for the appellant.

E. A. Bolton, for the appellees.

HEMINGWAY, J. The appellees released the lien of a prior mortgage, and took a second mortgage to secure their debt. They were ignorant that an intermediate mortgage, covering the same property, had been made to the appellant. They would not have released their prior mortgage if they had known of the one intermediate. The evidence discloses that they acted in good faith, without culpable negligence. The appellant made some advances under his mortgage, before the second mortgage of the appellees was executed, and while their first mortgage appeared upon the records as a paramount lien; as to those advances, he understood at the time that they had the paramount lien. He made further advances after the first mortgage appeared satisfied of record, but with full notice that it was satisfied only by the execution of the second; and he could not have been misled by such record satisfaction, nor have believed that the appellees intended to postpone their lien to his. As the appellees acted in good faith and without culpable neglect, under a mistake as to a material fact, it is within the ordinary powers of a court of equity to grant them relief, provided it can be done without working hardship or injustice to innocent parties: 1 Story's Eq. Jur., sec. 110; 2 Pomeroy's Eq. Jur., sec. 849.

In cases in all respects like the present, courts of equity have extended their aid and restored the lien of the satisfied mortgage; such action, we think, is sustained by correct principle, as well as by the authority of adjudged cases: Bruse v. Nelson, 35 Iowa, 157; Hutchinson v. Swartsweller, 31 N. J. Eq. 205; Cobb v. Dyer, 69 Me. 494; Campbell v. Trotter, 100 Ill. 281; Jones on Mortgages, sec. 971; Corey v. Alderman, 46 Mich. 540; Young v. Shaner, 73 Iowa, 555; 5 Am. St. Rep. 701; Robinson v. Sampson, 23 Me. 388; Geib v. Reynolds, 35 Minn. 331. The judgment is affirmed.

Where a mortgage is

REVIVAL OF MORTGAGE RELEASED BY MISTAKE. released, and a new one taken, on property on which there was a judgment subsequent to the first mortgage, of which the mortgagee was innocently ignorant, a court of equity will decree that the new mortgage shall take precedence to such judgment: Young v. Shaner, 73 Iowa, 555; 5 Am. St. Rep. 701, and extended note. A mortgage canceled of record will be decreed a subsisting lien when such cancellation was made under the mistaken impression that the mortgage was satisfied: Bunta v. Vreeland, 15 N. J. Eq. 103; 82 Am. Dec. 269, and note.