¶1(dissenting.) This was a suit, originally in ejectment, by appellant, Sarah E. Green, against appellee, Robert E. Craig, in the Chicot circuit court, and plaintiff claimed title absolute and in fee by deed from J. L. Harris & Co., which she filed with her complaint, as required by statute. J. L. Harris & Co. held as purchasers at trustee’s sale and under deed made in pursuance thereof, and this sale was made under the provisions of a deed of trust, made by L. C. Bryan, former husband of plaintiff, to the trustee to secure a debt due hy him and others to J. L. Harris & Co. of about $40,000, in which deed of trust plaintiff, the then wife of L. C. Bryan, the grantor, had relinquished her dower right in the property conveyed. On the answer and petition and answer of defendant, the cause was transferred to the chancery court of the district.
¶2The original complaint was filed and suit brought on the 27th of September, 1889. On the 10th of September, 1892, about three years after the complaint and answer were filed, plaintiff having made her quit-claim deed to her co-defendants, denominating them the heirs at law of her former husband, the said L. C. Bryan, and naming one of these heirs, J,oel E Bryan, as the administrator of L. C. Bryan, these heirs and administrator, nominally as such, petitioned to be made parties plaintiff, exhibiting their deed from plaintiff as a basis of their title and evidence of interest in the litigation; and they were made parties accordingly, but probably proceeded no further, relying on the state of case made by their co-plaintiff, Sarah E. Green.
¶3The deed from Sarah E. Green, in its recitals, in effect was an effort to disclaim absolute title in Sarah E. Green, and to restrict her title to that which she had received from J. L. Harris & Co., which, in so far, was correct. But it then, in effect, proceeds to name the grantees, the heirs and administrator of L. C. Bryan, as if these relations to L. C. Bryan formed the consideration for which she made the deed, and this had the effect, as nearly as could be made, of turning the property in controversy back into the estate of L. C. Bryan. This was necessary in order to render plaintiff’s deed from J. L. Harris & Co. not what it purported to be on its face, and what it was filed in this suit to indicate, but as a deed to her as dowager and administratrix of the estate of her deceased husband, the said L. C. Bryan. Now, it is evident that J. L. Harris & Co. made no'such deed, and never intended to do so. Their deed was simply from them as absolute owners, and to her individually and absolutely, and, treating it as such, upon it she instituted this suit, relying upon it to acquire the land for herself. To give plausibility to this arrangement, it was contended that the consideration of her deed from J. L. Harris & Co. was the settlement of certain litigation she, as administratrix of the estate of L. B. Bryan, had with them, pending at the time. She would thus make it appear that her dealings with J. L. Harris & Co. were in fraud of the rights of the heirs and creditors of said estate, and actually makes this kind of a case out in her transfer to said heirs and administrators of L. C. Bryan three years after she had brought suit for herself. The decree of reversal has the effect of sanctioning this airangement of the plaintiffs among themselves long after this suit was instituted.
¶4Had decree been rendered in the lower court before she made the deed to her co-plaintiffs, and in her favor, the heirs and estate of L. C. Bryan would have had nothing, and she all. They all seemed to understand that the estate was utterly insolvent. She, having obtained the deed from J. L. Harris & Co., was for that reason, and for that alone, able to convey something to these heirs. They, therefore, can claim nothing, and do not pretend to claim anything, except just such as her deed to them conveyed, and that expressly conveyed to them just what J. L. Harris & Co. had conveyed to her—nothing more, nothing less. If, then, the deed which J. L. Harris & Co. made to her was fraudulent and invalid, because it conveyed to her individually, and not as administratrix, then is her deed to these heirs and this administrator invalid also; and yet these heirs and this administrator dare not rely on any other title.
¶5It may be contended (and that is the only contention that can be made) that plaintiff, in making her deed to her co-plaintiffs, was only endeavoring to correct a wrong of which she had been guilty in accepting an individual deed from J. L. Harris & Co. There are two obstacles to this kind of a claim; one is that the suit was begun and prosecuted on the theory that she claimed the property individually, as her deed showed her to be entitled to claim; and the other is that Craig’s rights, claiming and holding under her as such individual and absolute owner, could not be prejudiced by any charge of fraud on her part, and another is that when she instituted the suit she could not sue for the heirs or the estate, nor for herself as dowager, as she had not set aside his deed of trust.
¶6This case does not go off on any want of merit in Craig’s claim, as I understand it, but purely and solely because Mrs. Green, while administratrix of L. C. Bryan’s estate, had no right to compromise the matters of the estate with J. L. Harris & Co. for her personal benefit, and therefore that her deed from them could only in fact be to her as dowager and as administratrix. It is only necessary to say that, in my opinion, the facts in the case and the equities of the case do not justify such a conclusion as that she or the heirs or estate had any real interest in the land when she arranged with J. L. Harris & Co. to acquire title for herself.
¶7The cause should have been affirmed as against Mrs. Green and her co-plaintiffs, holding as they do under her, but without prejudice to any right they may have as holding under L. C. Bryan as heirs or legal representatives; for, as the record and pleadings now are, the court cannot say but that the estate was divested of every thing by the foreclosure of J. L. Harris & Co.’s deed of trust.