majority">Biddick, J.,

(after stating the facts.) This is a suit in equity to foreclose a mortgage. The "defense set up is that at the time the mortgage was executed the land was owned by neither plaintiff nor defendant, but was the property of the staté, and that since the execution of the mortgage the land has been “donated” by the state to the defendant for the purpose of a homestead, and that under the law the donated land is not liable for the previous debts of the grantee in the state’s deed.

The contention of the plaintiff on this point is that the defendant is bound by his compromise; that, having purchased the land from plaintiff and acquired possession in that way, defendant cannot, so long as he retains such possession, deny the title of plaintiff. It is no doubt the general rule that the vendee cannot deny the title of the vendor without first restoring him to possession. But there are exceptions to this rule, and we are of the opinion that this case falls within one of the exceptions. The statute under which lands of the state are donated to citizens of the state requires that the applicant shall make an affidavit “that the land applied for is for the purpose of actual settlement, occupancy and cultivation by the applicant for his or her own exclusive benefit, and not directly or indirectly for the benefit or use of any other person or persons whomsoever.” Sand. & H. Dig., § 4573. It further provides that “no donation shall be liable for any debt contracted by the donee prior to the execution of the deed therefor.” Sand. & II. Dig., § 4594.

Under this statute the mortgage to Files, being executed by Benson prior to the execution of the state’s deed to him, did not bind the interest in the land he acquired from the state, and he is not estopped from setting up this title against the claim of Files; for, if the grantee in the state’s donation deed was not permitted to set up his title acquired from the state against such demands, the policy of the state, which is to secure a home to the state’s grantee, and to protect it against his debts contracted prior to the execution of the deed from the state, would be defeated. It would be contrary to public policy to forbid such a defense in a case of this kind. The reason for this rule of public policy is very fully discussed by this court in the case of Shorman v. Eakin, 47 Ark. 35, to which case we refer for a more elaborate statement of the principles controlling this decision. See, also, Sorrels v. Self, 43 Ark. 451; Anderson v. Carkins, 135 U. S. 483.

Having reached the conclusion that Benson is not estopped from disputing the title of Files in this case, it follows that the decision of the chancellor cannot be sustained, for there is nothing in the record to show that Files had any title. It is true that he stated in his deposition that he was the owner of the land, but this was objected to by the other party, and, being only an opinion, was clearly incompetent, as title to land cannot be established in that way. If Files, and not the state, was the owner of the land at the time the state conveyed it to Benson, then, of course, the donation deed, being of no effect, would be no defense to the action of Files, more than the deed from any other person who had no title. We know, of course, that under some circumstances it might, in connection with the statute of limitations and adverse possession, be used to support title, but no question of that kind is presented here.

But, as before stated, Files introduced no evidence of title. He relied on his note and mortgage, and the fact that Benson had compromised with him and purchased the land from him before getting the donation deed from the state. For these reasons, it seems, he did not fully develop his case. If we should direct a final decree on the record as it stands here, it would quite likely result in injustice, as it seems that the facts of the case are not fully presented. We have therefore concluded to reverse and remand the ease for further proceedings, and with leave for either party to amend his pleadings and take further evidence. It is so ordered.

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