Pine Bluff property, the sum of two hundred and fifty dollars, with interest, etc. The bill concludes with a prayer for the amount of said note and interest, and that said land be sold to satisfy the same, etc.

John L. Buck is the only one of the defendants who made answer in the court below. In his answer he alleges that, about the 19th day of February, 1867, said Hinton applied to him to borrow certain moneys, and offered to execute to said respondent, (Buck) a deed of mortgage, on the Pine Bluff property, to secure the same. That he inquired as to title, and was informed by said Hinton that he had an absolute deed to said lot, given in exchange for other land; that Hinton was in possession, and, on examining the records, he could not find the deed, and therefore relied on the statements of said Hinton, and, having no information or notice of said complainant's claim or pretended lien, accepted said deed of trust in good faith and without any notice whatever of complainant's equity or lien, and denies that she had any; that when said sum of money, secured by said deed of trust, matured, and the same being unpaid, said lots of land were sold under the provisions of said deed, and the respondent became the purchaser; that he is in possession under said deed of purchase, and that he is a purchaser for a valuable consideration without notice and entitled to the protection of the court, etc.

At the hearing below, the complaint was decreed to be taken as confessed as to all of the defendants, save John L. Buck. The court further decreed a vendor's lien upon the land, herein before mentioned, for $289 00, and ordered that the same be sold in default of payment. From this decree, Buck appealed to this court.

The question presented is, does the response of Buck show him to be an innocent purchaser? The rule laid down by the Supreme Court of the United States, in the case of Boone vs. Chiles (10 Peters, 177), was, that "in setting up a bona fide purchase without notice, by plea or answer, it must state the deed of purchase, the date, parties and contents briefly; that

Buck et al. v. Martin et al.

[DECEMBER the vendor was seized in fee and in possession; the consideration must be stated with a distinct averment that it was bona fide and truly paid, independently of the recital in the deed. Notice must be denied previous to, and down to the time of paying the money, and the delivery of the deed, and if notice is specially charged, the denial must be of all the circumstances referred to, from which notice can be inferred; and the answer or plea must show how the grantor acquired title; the title purchased must be apparently perfect; good at law; a vested estate in fee simple. It must be a regular conveyance; for the purchaser of an equitable title holds it subject to the equities upon it in the hands of the vendor." Does the respondent, Buck, bring himself within this rule?

We think not.

The complaint alleges that the deed from Mrs. Martin to Hinton recites the non-payment of two hundred and fifty dollars of the purchase money; it also alleges that the deed of mortgage, from Hinton to Buck, recites the non-payment of two hundred and fifty dollars of the purchase money. These are allegations charging notice of the existence of the lien of the vendor. The only denial Buck makes of this charge is, that he examined the record and found no deed from Mrs. Martin to Hinton, and because he found no such deed, that he relied on Hinton's statements as to title; but there is no denial that the deed of mortgage, from Hinton to himself, does not recite the non-payment of the two hundred and fifty dollars. If such a recital existed in the mortgage, it is apparent that he had notice of the existence of the vendor's lien. In the absence of any deed upon record from Mrs. Martin to Hinton, it is but natural that he, as a prudent man, examined the deed itself; if he did, then the deed was notice to him of the non-payment of a part of the purchase money. But be this as it may, if he expects to rely upon the fact of being an innocent purchaser, he must bring himself within the rule. To do this, he was bound to plead the deed from Mrs. Martin to Hinton. Had he done this, he would have pleaded notice to himself; had he pleaded the deed of

mortgage from Hinton to himself, and this he was bound to do to bring himself within the rule, the fact would have become apparent that he had notice at the time he took his. mortgage. If the deed had acknowledged the entire payment of the purchase money, and the mortgage had made-no allusion to the two hundred and fifty dollars due to Mrs. Martin, and he had pleaded these things, he then would have stood before this court in the light of an innocent purchaser. Where one relies upon protection on the ground of being an innocent purchaser without notice, it is incumbent on him, who sets it up, to establish a legal title in his vendor. If, however, in doing this, he purchases an equity in some one else, he cannot plead his ignorance of that equity, to establish the fact that he is a purchaser without notice. In this case notice is specially charged; there is no denial of the circumstances referred to, in the complaint, or is there anything in the answer, showing title in either Buck or his vendor. No vested estate in fee simple has been shown to exist in Hinton, which did not also show that the purchase money had not all been paid. For these reasons, and finding no error in the proceedings of the court below, the judgment is affirmed.

Collier, Adm'r, v. Kilcrease, Adm'r.

[DECEMBER

COLLIER, Adm'r, v. KILCREASE, Adm'r.

ADMINISTRATION-Revocation of Letters, etc.-On affidavit filed, by a party interested in an estate, that the administrator is insolvent, it is error in the - Probate Court to revoke the letters of administration, without requiring the administrator to give additional bond, and without any showing that his securities were not ample.

APPEALS-Should be tried de novo.-Appeals from the Probate to the Circuit Courts should be tried anew.

APPEAL FROM RANDOLPH CIRCUIT COURT.

HON. ELISHA BAXTER, Circuit Judge.

English, Gantt & English, for Appellant.

1. The Probate Court may revoke letters, on affidavit, notice and proof when an executor or administrator becomes of unsound mind, or wastes or mismanages the estate, or acts so as to endanger his co-executor. Gould's Digest, ch. 4, sec. 35.

2. On an affidavit that an administrator is likely to become insolvent, the Probate Court may require him to give a new bond (as well as for other causes named in the statute), and if he fails to give the new bond, may then revoke his letters. Gould's Digest, ch. 4, sec. 36–7–8, pp. 110–11; Renfro vs. White, 23 Ark., 195; State vs. Stroop, 22 Ib., 328.

SEARLE, J.-Collier was the duly appointed administrator of the estate of Wilson, deceased. Kilcrease, who had married Wilson's widow, filed an affidavit in the Probate Court of Randolph county, in January, 1869, stating that he had reason to believe that Collier was likely to become insolvent, and prayed the court to revoke his letters of administration.

The evidence, upon the hearing of the matter, was to the effect that Collier was insolvent. The court ordered the revocation of his letters, from which Collier appealed to the Circuit Court. The Circuit Court affirmed the order, and Collier appealed to this court.

The only question to be determined, in this case, is, did the

affidavit and evidence show a sufficient legal ground for the revoking of Collier's letters of administration? It is discoverable, at a glance, that the application and affidavit were made under sec. 36, ch. 4, Gould's Digest. This section provides that if any heir, legatee, creditor, security, or other person interested in any estate, shall file in the Probate Court, etc., an affidavit, stating that the affiant has reason to believe that the principal in the executor's or administrator's bond has become, or is likely to become insolvent, and shall have given the principal fifteen days' notice of the time and place of hearing such complaint, "The court shall examine the same and make such order as shall seem proper."

Does the clause, "the court shall examine the same and make such order as shall seem proper," give such court, upon a sufficient showing of such insolvency, the power of at once revoking the letters of administration, or does it only authorize it to make such order as may seem proper in relation to the giving of an additional bond? Undoubtedly, we think, the latter. For by sections 37 and 38, of the same chapter, which seems to have been designed to carry out and perfect the provisions of section 36, it is declared that, if an additional bond be given, it shall discharge the former securities. from any liability, etc., after the approval and filing of such additional bond, and that, in the event of a failure to give such additional security as may be required by the court, within ten days after the making of the order requiring additional security, the letters of such administrator shall thenceforth be revoked and his authority cease at that time. It is further to be observed, that it is only in those cases and for those causes where the administration law explicitly provides for it, may letters, etc., be revoked, without first requiring additional bonds. Here the Probate Court arbitrarily revoked the letters without requiring Collier to give additional bond, and without any showing that his securities were not ample. It appears from the transcript, further, that the Circuit Court did not try the case anew upon the appeal, but simply,