sentative of any interest. The proper course, we think, for the court to have taken under the circumstances, was first to appoint the new trustee and cause him to be made a party, and then to proceed with the case in the regular order. As it was, there was only a nominal representative of the legal estate before the court when the decree was entered. In all the other cases the parties necessary for the representation and protection of all interests were properly before the court; and it follows that the title acquired by the appellant through the Gilsdorff decree was good against the present attack of the complainants, who were born after its rendition, as well as against the cross complainants, who were defendants in the case, and in whose name the appeal to the supreme court was prosecuted.

There is a broader and more equitable view of the case which leads to the same conclusion. The value of the trust property as it was left by the fire, according to the estimate put upon it by Frank C. Taylor in his application for the first loan, was $25,000, and there is no evidence that it was worth more. The sublots, afterwards platted, were therefore of the average value of $5,000, and the houses built upon them each cost a little more than twice that sum, making the value of each house and lot about $15,000. That was the consideration for which one of the properties was conveyed to Julia S. Taylor; and according to the decision in Bank v. Taylor, supra, that sale was regular, and the proceeds, it is to be presumed, went to the proper uses of the trust. As the result of the compromise agreement another lot, with improvements of equal value, was conveyed to the Taylor children, and the remaining three lots, worth without improvements not more than $15,000, were conveyed to the Savings Bank. In other words, when this suit was brought, as a result of the transactions complained of, the trust estate had been enhanced by the sum of $5,000; and the bank, in return for $20,000 of its money expended in improv ing two lots for the benefit of the appellees, had received three lots worth but $15,000. The aim of the suit is that those lots, with the houses on them, erected at a cost of $30,000, which the bank and its assignors, the mechanic's lien holders, contributed, shall be surrendered to the trustee for the use of the appellees, and that for its outlay of half a hundred thousand dollars the bank shall receive nothing. The proposition involves not merely a hardship to the bank, which, according to the opinion of the circuit court, could not be remedied without making a precedent for defeating the rights of minors; it means, in our opinion, an injustice so unconscionable, in view of all the circumstances, as to make judicial sanction of it at once unnecessary and impossible.

When the trust deed was found, and the mistake made evident, which had prevailed concerning the powers of the trustee, it was doubtless competent, as it would have been plainly just and right, for the parties in conformity with the authority which the trustee had. to convert their loans and mortgages into an outright sale to the bank of a part of the property equal in value to the money received and expended upon the estate; and that is practically what was accomplished by the compromise agreement, and by the conveyances which followed the foreclosure sale, including the deed of quitclaim which

Mulliken, as trustee, and Frank C. and Mrs. Taylor joined in executing to the president of the bank; and, so long as no proffer is made of adequate recompense to the bank in some other mode, there can be, in our opinion, no good reason for disturbing the result,-unless it should be to require a conveyance to the trustee of the lot which was conveyed to the Taylor children, whereby they were given a title in fee simple and a present right of possession, when they were entitled only to the remote and contingent interest defined by the trust deed. That, however, is a matter between them and their mother, in which the bank is not concerned.

If the mortgages to the bank be regarded as void, it is still true that the trustee received and used the bank's money for the purpose of improving the property, or paying for improvements already put upon it under circumstances which not only justified, but required, the expenditure. It was within the trustee's power to make improvements and to sell portions of the property for that purpose; and the fact that the money was obtained and expended without a previous bargain for the sale of any part of the property did not preclude the making of a subsequent contract to that effect. There is nothing in the terms of the trust which forbade it, and, if there were, in view of the mistake, sanctioned by two decrees of court, under which the money was obtained, equity, if it would not have compelled a settlement of the character suggested, certainly should not intervene to annul one which was fairly made by the parties, on terms to which they might in the first instance have rightfully agreed.

On the theory of our conclusion that the mortgages were valid and enforceable, the Savings Bank was never under any necessity, and therefore, possibly, had no right, to seek relief on the ground of mistake; but, on the assumption that for any of the technical objections made to them the mortgages were invalid, we deem it clear that the money obtained of the bank was furnished under such a mistake of fact as to warrant equitable relief, which could have been properly granted, in the way already indicated, by compelling the trustee and Frank C. and Mrs. Taylor to convey to the bank enough of the trust property to liquidate its demands. Between the principal parties-the bank and the trustee-it was plainly a case of mutual mistake; and if there was no mistake on the part of Frank C. Taylor, then his conduct was a fraud upon the bank, which was no less available as a ground of relief. It was upon his testimony, corroborated by other witnesses, that the two decrees of the superior court were procured which declared the authority of the trustee to execute mortgages; and if it be conceded that those decrees were founded upon an error of fact, for which they were subject to be set aside, even as against the appellants or any third party claiming to have acquired rights under them, the very concession demonstrates the mistake, which, within the recognized rules of equity, makes the granting of relief in the manner stated both possible and proper. The decree of the circuit court should therefore be reversed, and the cause remanded, with instructions to dismiss the bill and cross-bill; and it is

So ordered.

PERCY V. COCKRILL et al.

(Circuit Court of Appeals, Eighth Circuit.

No. 99.

January 23, 1893.)

1. LIMITATION OF ACTIONS-SUIT TO ENFORCE A CONSTRUCTIVE TRUST. A suit brought in Arkansas by a daughter whose father left all his property to his sons, "having full confidence in their disposition to deal justly and liberally," and leaving it "to them to make proper and suitable provision for their sisters," against the collusive purchaser from her brothers, is not an action for the recovery of real property, within the meaning of the statute of limitations of Arkansas, (Mansf. Dig. § 4471,) but is an action founded on an implied contract or liability, and as such is limited by section 4478 to three years. Millington v. Hill, (Ark.) 1 S. W. Rep. 547, followed. 2. SAME.

The statute began to run against the daughter, whose husband had taken no steps to reduce her right to possession, from the passage of the act removing the disabilities of married women, (Mansf. Dig. §§ 4624, 4625,) in 1873, and not from the time of her subsequent discoverture. Garland Co. v. Gaines, (Ark.) 2 S. W. Kep. 460, followed.

3. SAME.

Information as to the terms of the will, and the finding of the collusive purchaser in possession, claiming title free from the burden of the alleged trust in the daughter's favor, was sufficient notice to both the daughter and her husband to set the statute running against the husband immediately, and against the daughter on the removal of her disabilities. 4. LACHES-FEDERAL COURTS-FOLLOWING STATE PRACTICE.

A federal court sitting in equity ought not to enforce the constructive trust and equitable lien on real property arising in favor of a daughter whose father left all his property to his sons, "having full confidence in their disposition to deal justly and liberally," and "leaving it to them to make suitable provision for their sisters," when she has, without excuse, remained silent 15 years longer, after discovery of the substantial facts, than was sufficient to bar the action under the state statute of limitations, and when all the witnesses to the transaction, except herself, are dead. Lemoine v. Dunklin Co., 51 Fed. Rep. 487, 2 C. C. A. 343, followed. 5. FEDERAL COURTS-FOLLOWING STATE DECISIONS.

The federal courts, in the construction and application of state statutes of limitation and married women's acts, should follow the decisions of the highest courts of the states, in cases where no federal law or constitutional question is involved.

6. CONSTITUTIONAL LAW-MARRIED WOMEN'S ACTS-RIGHTS OF THE HUSBAND. By the common law of Arkansas, and of most other states, a husband has no vested interest in his wife's choses in action, which he has taken no steps to reduce to his possession; and the married women's act of 1873, (Mansf. Dig. § 4624,) making such rights the sole property of the wife, and taking away all the husband's interest therein, violates no constitutional right of the husband, although the marriage took place before the passage of the act. Criscoe v. Hambrick, (Ark.) 1 S. W. Rep. 150, and Shryock v. Cannon, 39 Ark. 435, distinguished.

Appeal from the Circuit Court of the United States for the East ern District of Arkansas.

In Equity. Bill by Nancy Armstrong Percy against Sterling R. Cockrill and others to recover a one-fifth interest in certain realty, with the rents and profits. Defendant Cockrill died pending the suit, and the cause was revived in the name of Sterling R. Cockrill, Jr., his executor and trustee. A demurrer was sustained, and the bill dismissed. Complainant appeals. Affirmed.

Statement by SANBORN, Circuit Judge:

This is an appeal from a decree of the court below sustaining a demurrer to, and dismissing, the appellant's bill in equity. The bill was filed January 15, 1891, and alleges that appellant's father, William Armstrong, died testate June 13, 1847, leaving surviving him three sons and three daughters. That he died seised of a plantation containing 1,663 acres of land adjoining Pine Bluff, Ark., and a large number of slaves, and some other personal property, then on the plantation. That his will, which was duly probated, was as follows:

"In the name of God. Amen. I, William Armstrong, being of sound mind, in view of the uncertainty of human life, do hereby make and declare this my last will and testament, in the words following, to wit: First. I hereby be queath and devise all my estate, real and personal, including all my effects of every description whatever, subject to the limitations hereinafter set forth, to my sons, James Trooper Armstrong, David I. Armstrong, and Frank Wells Armstrong, whom I constitute and appoint my sole executors. Second. It is my wish and desire that my plantation below Pine Bluff, including the adjoining lands and all the appurtenances, should not be sold or disposed of, but remain and continue as at present, to be, together with my negroes and all my other effects, under the joint management and control of my executors aforesaid; not to be divided, but to remain as an entire estate until my son Francis becomes of age; and, in the event of either of my said sons dying without issue before that, the survivors or survivor to succeed as heirs and executors. Third. Having full confidence in my sons aforesaid, and in their disposition to deal justly and liberally, I leave it to them to make proper and suitable provision for their sisters, Susan, Margaret, and Nancy. Fourth. It is my wish and desire that my grandson, William Armstrong Cocke, be brought up at the cost and expense of my estate. In witness whereof, I have hereunto set my hand and seal, on this 10th day of June, 1847."

That the sons named in the will deemed the legal title and beneficial ownership of the property devised by this will in themselves, and proceeded to borrow money for their several individual purposes, and to secure the payment thereof mortgaged the property in 1849, when the youngest son, Frank, had attained his majority, for $10,000, and in 1854 for $30,008.64. That in February, 1856, they sold, and undertook to convey, by a deed made in their own right, and as executors of the will of their father, to the late defendant Sterling R. Cockrill, the undivided two thirds of the property, in consideration of $13,000, to be paid by him to James T. Armstrong and Frank W. Armstrong, and the assumption by him of two thirds of the debts of the estate and of the incumbrances then upon the property; and that in May, 1858, David I. Armstrong, who had married a daughter of Mr. Cockrill in 1853 or 1854, and who claimed to own the remaining third of the estate, and his father-in-law, made a partition between themselves of the entire property and estate. That a portion of this land has since been platted as Cockrill's addition to the city' of Pine Bluff; and more than 60 persons are made defendants, who claim title to, or liens upon, some of it, under Mr. Cockrill and David I. Armstrong. The bill alleges that the late defendant Cockrill, before and when he purchased the two-thirds interest in this property, knew that the young Armstrongs were expending and wasting the estate; that the mortgages they had executed thereon did not secure any debts of the deceased, William Armstrong; that none of the moneys they derived therefrom, or from their sale to him, went, or were intended to go, to the complainant; that they had made no suitable provision for her, and did not intend so to do, but had expended, and intended to expend, the moneys they derived from the estate, in utter disregard of the will, and the trust in complainant's behalf thereby imposed, and that they did not intend to provide for her out of the one third of the estate remaining unsold.

The bill also alleges that Susan Armstrong died intestate and without issue in 1852; that Margaret died intestate in 1856, leaving an infant son by her husband, Barrow; that neither of these daughters had attained their majority when they died; that the three brothers subsequently died insolvent; that at the time of her father's death the complainant was 11 years old; that for a

few years thereafter she resided on the plantation; that she was then sent to Maryland to school, and at the age of 19 took up her residence in Nashville, Tenn., with relatives, where she, resided until she was married, on February 23, 1858; that she attained her majority in 1857; that her husband died July 19, 1888; that she and her sisters were supported and educated during their minority by her brothers; that "she was kindly and tenderly raised, in a manner befitting her station in life, and the relations between her brothers and herself were of the most affectionate character,-questions of property or money matters were never discussed between them,"-and that she was entirely ignorant of all the mortgages, conveyances, and transactions set forth in the bill until the winter of 1858-59, when she and her husband went to Arkansas to visit her brothers; that she then learned for the first time that the late defendant Cockrill was in the possession of her father's home, claiming to own the same; and that it was only recently that she discovered the other facts set out in the bill.

The relief sought by this bill is a decree that the complainant is entitled to an undivided one fifth of each lot and tract of land that belonged to William Armstrong at his decease, in 1847, and a judgment against each of the defendants for one fifth of any rents, profits, or personal property they have respectively received from any property that he then owned.

The grounds of the demurrer were that the bill did not show that the complainant was entitled to any relief; that the suit was barred by the statute of limitations; that the complainant was barred from prosecuting her suit by her laches; and that it appeared from the bill that, if she had any right of action, she had an ample remedy at law. The only error assigned is that the court below sustained the demurrer and dismissed the bill. After the commencement of the suit the defendant Sterling R. Cockrill died, and the cause was revived in the name of Sterling R. Cockrill, Jr., as his executor and trustee.

J. M. Moore, for appellant.

U. M. Rose, (G. B. Rose, on the brief,) for appellees.

Before SANBORN, Circuit Judge, and SHIRAS, District Judge.

SANBORN, Circuit Judge, (after stating the facts.) The first question suggested by this record is,-conceding for the present that this will created a trust in favor of the complainant which charged the property devised to her three brothers with the burden of mak ing suitable provision for her; that this cause of action did not accrue until she discovered the late defendant Cockrill in possession of her father's home in 1858, claiming to own it under the conveyances from her brothers to him; and that the charges of his knowledge of the violation of this trust, and of his collusion with those brothers to violate it, through these conveyances, contained in the bill, are sufficient to charge the real estate in his hands with the trust in complainant's favor, without stopping now to consider or decide the questions these propositions present, can the complainant at this late day maintain this suit?

The will which created the charge or trust on which this bill is founded was probated in 1847. The sale under it to the late defendant Cockrill, which complainant now avers charged him as a constructive trustee for her benefit, was made in 1856. The complainant and her husband had full notice of it, and knew that under it Cockrill was in possession of her father's home, claiming to own it, in 1858. Twenty-three years after she received this notice, and on the 15th day of January, 1891, she filed this bill, and then first complained, so far as the record shows, that the mortgages and deeds made by her