Opinion of the Court. 216, 219; Battle v. Mutual Life Ins. Co., 10 Blatchford, 417; Ogden v. Thornton, 3 Stewart, (30 N. J. Eq.) 569, 573; McCon nell v. McConnell, 11 Vt. 291. We are of opinion, for the reasons stated, that the amendment of the prayer of the bill was properly allowed, and that there was no error in adjudging that Ware's estate had a lien on the land for the balance of the purchase-money. The deed to W. D. Hardin, and the deed of the latter to his wife, having been properly cancelled, the legal title remained in the heirs of the vendor. They are not bound to surrender that title except upon the performance of the conditions upon which their ancestor agreed to convey, viz., the payment of the purchasemoney. According to the local law, they occupied the position of mortgagees; for, "the legal effect of a title bond is like a deed executed by the vendor and a mortgage back by the vendee." Holman v. Patterson's Heirs, 29 Ark. 363; Martin v. O'Bannon, 35 Ark. 68. The heirs of Ware held the title in trust for the purchaser, while Hardin was a trustee for the payment of the purchase-money. Schall v. Biscoe, 18 Ark. 142, 157; Moore v. Anders, 14 Ark. 628; Holman v. Patterson, 29 Ark. 363; Bayley v. Greenleaf, 7 Wheat. 46, 50; Boone v. Chiles, 10 Pet. 177, 225; Lewis v. Hawkins, 23 Wall. 119, 126; 1 Story Eq. Jur., § 1217 et seq.; 2 Sugden Vendors, 375, ch. 19, n. d. But it is contended that the debt for unpaid purchase-money, as well as the lien claimed therefor, are equally barred. by the statute of limitations of Arkansas. An action to recover the debt may be barred by limitation, yet the right to enforce the lien for the purchase-money may still exist. Lewis v. Hawkins, 23 Wall. 119, 127; Birnie v. Main, 29 Ark. 593; Colcleugh v. Johnson, 34 Ark. 312, 318. In the case last cited the Supreme Court of Arkansas said: "The debt itself would appear to be barred in 1872, and no action could be brought at law. But the bar of the debt does not necessarily preclude a mortgagee or vendor retaining the legal title from proceeding in rem in a court of equity to enforce his specific lien upon the land itself. Unless the defendant can show that the lien has been in some way discharged and extinguished, or lost upon some Opinion of the Court. equitable principles, such as estoppel, he can only interpose the bar of adverse possession of the land for such time as would bar the action at law for its recovery." In the same case it was held that, as between mortgagor and mortgagee, the possession of the mortgagor is not inconsistent with the mortgagee's right so long as the latter does not treat the former as a trespasser; that where the mortgagor remained the actual occupant with the consent of the mortgagee he was strictly tenant at will; that if the tenancy be determined by the death of the mortgagor, and his heirs or devisees enter and hold without any recognition of the mortgagor's title by payment of interest or other act, an adverse possession may be considered to take place. "The principle," said the court, "is a wholesome one for both parties, as it enables the mortgagee (or vendor by title bond) to rest securely on his legal title, and indulge the mortgagor or purchaser, whilst the latter can easily, upon payment, procure the legal title, or have satisfaction of the mortgage entered of record under the statute; and even if he should neglect this, a Court of Chancery would not entertain a stale demand for foreclosure after many years without clear proof rebutting the presumption of payment; or if the mortgagor should die and the heirs should enter without recognition of the mortgagee's rights, the statute of limitations would commence to run as in case of adverse possession." When did adverse possession begin in the present case? Not when Hardin took possession of the land, for he went into possession in the lifetime of the vendor, and with his consent. The claim of adverse possession cannot be based either upon the alleged proceedings in the Probate Court purporting to authorize and direct the administrator of Ware to execute a deed to Hardin, or upon the deed which was made to him by such administra tor; for, according to the weight of evidence, no such action was ever taken by the court and, by its order, made a matter of record, and that deed, although filed for record, was never recorded during the period when Hardin held the office of clerk of that court, nor until 1877. So that there was nothing upon the public record of conveyances, as shown at the hearing, nor in any of the circumstances attending Hardin's possession, prior Opinion of the Court. to the conveyance to his wife, that showed such open, notorious adverse possession of the land as was requisite to change the relations originally existing between the vendor and purchaser, or between the latter and the heirs of the former. Hardin's possession under the deed of the administrator was simply a continuation of the possession originally obtained with the consent of his vendor. If it be said that Mrs. Hardin's possession under the deed from her husband was, upon her part, an assertion of title adverse to any claim that Ware's estate had, it may be answered that such possession commenced less than seven years prior to the bringing of this suit, which is the period within which the statutes of Arkansas require action or suits to be brought for the recovery of real estate. It is objected to the decree that the value of the county scrip or warrants, which the court found had not been delivered by Hardin in payment for the land, should have been ascertained upon the basis of value as alleged in the original bill, namely, ten cents on the dollar; and this, although the answer placed their value at seventy-five cents. According to the preponderance of evidence they were worth about seventy cents on the dollar of their face value. The court was not obliged to accept the allegations of value in the pleadings, and should have been controlled, on this point, by the evidence. We do not perceive any error in the aggregate amount ascertained to be due, taking the two instalments of purchase-money at the market value of the scrip or warrants, in which they were payable, at the time they were respectively due, and giving interest upon those amounts from the maturity of each instalment. Some time after the decree Hardin filed a petition for rehearing, submitting therewith copies of numerous papers (alleged to have been lost at and before the final hearing) purporting to relate to a suit instituted by the heirs of Ware in the Crittenden Circuit Court against L. B. Hardin for the purpose of having him removed as administrator, or preventing his interfering with the assets of the estate. The record of that suit, it was alleged in the petition for rehearing, disproved the principal grounds upon which the decree in this case was rested. Without assenting to this view, and without comment Opinion of the Court. ing upon the failure of the petition to disclose the circumstances under which the papers alleged to have been lost were found, it is sufficient to say that the granting of a rehearing was a matter within the discretion of the court below, and not to be reviewed here. Other questions are discussed in the briefs of counsel, but we have noticed all that we deem of importance. There is no error in the decree, and it is Affirmed. INDEX. ACCORD AND SATISFACTION. See JURISDICTION, A. 2; NAVAL CONTRACTS, 3. ACTION. 1. A creditor who receives from his debtor a certificate in writing, not 2. A creditor who receives from his debtor a negotiable instrument of the See LOCAL LAW. ACTION ON THE CASE. 1. The confederating together of divers persons with a purpose of prevent- VOL. CXIII-49 |