(after stating the facts). The questions are : First. Was the deed from John P. Dickson to McKneely void for fraud and undue influence ? Second. Did Samuel W. McKneely, in 1869, execute deeds to David H. Dickson and John D. Trigg to an undivided one-third in the lands in controversy? And did he enter into a written obligation with David H. Dickson, at the same time, by which he (McKneely) was to retain possession of the entire place for three years, and at the end of which time he was to surrender to the heirs; and was this agreement fulfilled ? Third. If plaintiffs, Mollie C. Terry and John D. Trigg, have the legal title to an undivided interest in the whole or a portion of the lands in controversy, are they barred from recovery by laches or limitations ? Fourth. Are plaintiffs, Mollie C. Terry and John D. Trigg, entitled to an undivided one-sixth, each', in the lands sued for, as the only heirs of Mrs. Davinia McKneely. Fifth. Is Mrs. Mattie McKneely entitled to dower as an innocent purchaser for value? Sixth. Can plaintiffs, if they are decreed the owners of an undivided interest, recover rents for their share collected by McKneely in his lifetime; and can they have a lien for rents declared upon the undivided interest remaining in the heirs of McKneely ?
1. Was the deed void ?
The circuit court, in an elaborate decree, in which we think the facts are accurately discussed and the law correctly applied, found that there was no evidence to justify setting aside the deed. We are of the same opinion. A discussion of the facts leading to this conclusion could only be of interest to the parties litigant, and would serve no useful purpose as a precedent. The law is too well settled for discussion. The plaintiffs, therefore, cannot recover as to the heirs of John P. Dickson.
% The chancellor found that in 1869 McKneely executed conveyances to David H. Dickson and John D. Trigg, securing to them, respectively, the interest they claimed in the lands, and also executed an agreement by which he was to hold the land for three years, after which he was to surrender the same; that McKneely did hold the lands for three years, and then gave possession to David H. Dickson, father of Mollie C. Terry, who held until he died in 1873 ; that, after David H. Dickson’s death, McKneely again took possession, and collected and appropriated to his own use the rents and profits until his death in 1889. These also are purely questions of fact, and the evidence fully supports the court’s conclusion. This answers the second proposition, and determines the right of Mollie C. Terry, as the only heir of David H. Dickson, and of John D. Trigg, to recover under their deeds, unless they are barred by laches or limitation.
What constitutes laches.
3. Are they barred ? As to John D. Trigg, the court found that he was present when the settlement was had between McKneely and David EL Dickson, guardian of John D. Trigg, whereby the interest of John D. Trigg in the land was conveyed to him ; that he was eighteen years old, and understood the agreement for McKneely to hold the land for three years, and for David EL Dickson to take possession at the end of that time ; that he knew that McKneely repossessed himself of the land in 1873, after David H. Dickson’s death; that at this time John D. Trigg was of age, and knew that McKneely had been accused of fraudulently taking and secreting the deeds to this land in the same year, 1873. And the court found that, for sixteen years, McKneely held the land, collected and appropriated the rents of the entire place to his own use ; that the rents amounted to a large sum, the place being valuable; that, at various times before McKneely’s marriage with the defendant Mattie, in--, John D. Trigg applied to him to be let in to enjoy his interest, and was always refused ; that plaintiff John D. Trigg had labored under no disability since 1873 ; that, about four years before the bringing of this suit, he had been informed by McKneely that he (McKneely) had leased the lands for five years, and therefore could not let him (John D.) in to enjoy his interest. The court found that McKneely in 1878 had sold a valuable portion of the land, and had appropriated the purchase money to his own use, and that John D. Trigg knew this. These findings are supported by the evidence. There was testimony by John D. Trigg and others to show that McKneely had repeatedly recognised John D. Trigg’s interest in the land, — in fact, had never denied it, — and had often promised to let him in to enjoy his interest. John D. Trigg claimed and testified that his neglect to sue earlier was by reason of these promises, and because of McKneely’s continued recognition ■ of his interest. But the court found that John D. Trigg must have known that McKneely’s possession, was adverse, and concluded that his delay in bringing suit was “unreasonable and unjustifiable.” This conclusion was certainly correct, if McKneely’s actions, as disclosed by the record, were of more weight and significance than his promises and professions. The learned chancellor thought they were, and the preponderance, we think, sustains his findings. There was no error in dismissing the bill as to plaintiff, John D. Trigg.
When husband’s possession subordinate to wife’s rights.
As to the plaintiff, Mrs. Terry, it appears that her ancestor, David H. Dickson, died in possession of the land in controversy in 1873. At that time, she was sixteen years of age. Two years after, she intermarried with W. L. Terry, when she was something over eighteen. The deeds to David H. .Dickson and John D. Trigg conveyed to each an undivided one-third interest in the lands sued for, McKneely retaining an undivided one-third. It is not contended that McKneely ever executed any deed to his wife for an undivided one-third, but only that he agreed to do so. Be that as it may, if McKneely was under any obligation to convey the land to his wife in 1873, when he repossessed himself, the presumption would be that his possession was in subordination to her title, legal or equitable. 1 Am. & Eng. Enc. Daw, 250 and cases cited ; Corwin v. Corwin, 2 Seld. 342, cases ; 1 Wood, Dim. 578; Banks v. Green, 35 Ark. 89.
When possession of co-tenant not adverse.
If the title to the undivided one-third remaining was not in his wife, it was in him, and, in either case, his possession was • that of a tenant in common with Mollie C. Terry and John D. Trigg, and continued so to be until some act so open, notorious and unequivocal as to operate as notice to his co-tenants that his holding was adverse. 2 Wood, Dim. 258. See, also, Bryan v. City of East St. Louis, 12 Ill. App. 397. “It is,” says Mr. Angelí, “from the nature of the estate that a tenant in common of land, in the enjoyment of his rights, must necessarily, prima facie, be in possession of the whole.” Angelí, Dim. 429. “The. possession, therefore, of one tenant in common is the possession of all.” 2 Wood, Dim. 266. Prior to an interview which Mrs. Hayden had with McKneely in 1876, in which he stated that the place was his, and he intended to keep it, there is nothing to show that his possession was adverse to his co-tenants. There is no proof that he entered upon the land in 1873 as sole owner. There was- evidence tending to show that McKneely in 1875 had abstracted the deed, which was the only evidence of title in the heirs of David H. Dickson, and, while this might have indicated a purpose to claim the land as his own, yet, if so, it was a secret purpose, for the abstraction was secret, and would not operate as notice of an adverse holding. And, although Mrs. Dickson may have discovered the same a short time thereafter, there is no evidence that she communicated the fact to Mrs. Terry at a time when she was under no disability. There was also proof that McKneely had collected and appropriated the rents for the year 1874, and had rented the place for the year 1875, though it is doubtful if he had collected the rents for 1875 before the marriage of plaintiff Mollie C. Terry in Oct. 1875. But the pernancy of the rents, although for the whole statutory period, would not, of itself, be conclusive evidence of an ouster of his co-tenants by McKneely, because that is susceptible of explanation consistent with his rights as co-tenant. In order to set the statute in motion, he must have absolutely denied the title of his co-tenants, or by other notorious acts have indicated his intention to claim and hold the estate exclusively. 2 Wood, Lim. 266, and cases cited; Ricard v. Williams, 7 Wheat. 121; Prescott v. Nevers, 4 Mason (U. S. Cir.), 326; Jackson v. Tibbits, 9 Cow. 241; Parker v. Proprietors of Locks, etc. 3 Met. (Mass.) 91; Angell, Dim. 429; M’Clung v. Ross, 5 Wheat. 116; Todd v. Todd, 117 Ill. 92. See also Sydnor v. Palmer, 29 Wis. 226.
The first unequivocal act, indicating an intention on the part of McKneely to hold adversely to his co-tenants, was his declaration to that effect made to Mrs. Dickson in 1876. The second was the sale in his own name of a valuable portion of the place in 1878 to Elias Pickett, and the appropriation of the money received therefor to his own use. Clapp v. Bromagham, 9 Cow. (N. Y.) 530. Mollie C. Terry, however, was a feme covert when both these occurred, and expressly protected by the statute of limitation. Sec. 4815, Sand. & H. Dig. True, this court in Gibson v. Herriott, 55 Ark. 85, said: “The disabilities of coverture in respect to her separate property having been removed, she is to the same extent relieved of its consequences.” But this language is only applicable to the assertion of her rights, as-to her separate property, in all cases where the statute has not made an exception protecting her. It is applicable, of course, to the statute pertaining to judicial sales, for she is not excepted from its operation. Sec. 4818, Sand. & H. Dig; Batte v. McCaa, 44 Ark. 398; McGaughey v. Brown, 46 Ib. 25.
Plaintiff Mollie C. Terry was not barred by the statute of limitation. Is she barred by laches f As was held in Gibson v. Herriott, supra, a married woman, with reference to her separate property, may be guilty of laches, as though she were discovert. It is alleged, in the amendment to the original bill, that the deed to David H. Dickson was secretly abstracted and made way with by McKneely, and that they (plaintiffs) had no knowledge or information of the existence of such deed until after the commencement of this suit, and that the commencement of the suit was prevented by the wrongful conduct of McKneely in taking and carrying away said deed, and fraudulently concealing from said plaintiffs any and all knowledge of its existence. This was a sufficient replication to the plea of laches.
Acknowledgment not necessary to pass title.
The heirs of McKneely, in the amendment to their answer, say “that the deed was not acknowledged and perfected as an instrument of conveyance and no possession was ever held under it by David H. Dickson.” It is clear from the proof that the deed was made and delivered to David H. Dickson as alleged. It therefore passéd the title, between the parties to it and their heirs, whether acknowledged or not. Floyd v. Ricks, 14 Ark. 294.
Fraud as affecting the question of laches.
In the language of the learned chancellor below, “the deed was the best evidence of Mrs. Terry’s rights, and the most effective instrument to enforce them.” The court found that the deed under which Mrs. Terry claimed was “fraudulently taken away and kept concealed by McKneely.” The proof justifies this finding. How does it affect the question of laches ? It is contended by appellants that, as the statute (sec. 4815 Sand. & H. Dig.), makes no exception as to a cause of action fraudulently concealed, the courts can make none, and that this holds good as to both courts of law and equity, as the statute in • express terms is made applicable to both.
Section 4846, Sand. & H. Dig., .provides “that if any person, by leaving the county, absconding or concealing himself, or any other improper act of his own, prevent the commencement of any action in this act specified, such action may be commenced within the terms respectively limited after the commencement of such action shall have ceased to be prevented.” The words “any other improper act of his own” would seem to be broad enough to cover cases of fraud. But, aside from this statute, the result would be the same. “It is the established rule of equity, as administered in the courts of the United States, that where relief is asked on the ground of- actual fraud, especially if such fraud has been concealed, time will not run in favor of the defendant until the discovery of the fraud, or until, with reasonable diligence, it might have been discovered.” Kirby v. Lake Shore, etc. Railroad, 120 U. S. 130; Meador v. Norton, 11 Wall, 442; Prevost v. Gratz, 6 Wheat. 481; Rosenthal v. Walker, 111 U. S. 185; 2 Story Eq. Jur. sec. 1521 a ; Veazie v. Williams, 8 How. 134. See also Jones v. Van Doren, 130 U. S. 684. And while it is true that the U. S. courts, possessing the same equity jurisdiction as the high court of chancery in England, have a uniform system of equity rules and practice which they administer in each state untrammelled by local laws (Kirby v. Railroad, supra), yet the above announces the correct doctrine in equity, as applied by the state courts generally, although their statutes, like ours, may contain no exception in favor of one whose cause of action has been concealed by fraud. Angell, Lim. sec. 183; Buswell, Lim. sec. 385; 2 Wood, Lim. sec. 275; First Mass. T. Co. v. Field, 3 Mass. 201; Bland v. Fleeman, 58 Ark. 84. See also McGaughey v. Brown, 46 Ark. 35. The reason of the rule is that one shall not be permitted to take advantage of his own wilful wrong. In a court of conscience, as Lord Redesdale expresses it, “the statute ought not to run; the'conscience of the party being so affected that he ought not to be allowed to avail himself of the length of time.” Hovenden v. Lord Annesley, 2 Sch. Lef. 634; Bus. Lim. sec. 22; Evans v. Bacon, 99 Mass. 213; Traer v. Clews, 115 U. S. 528; Troup v. Smith, 20 Johns. (N. Y.) 33; Callis v. Waddy, 2 Munf. (Va.) 511.
Our statute is, in express terms, made applicable to suits in equity, as well as law. Sec. 4815, Sand. & H. Dig. It follows, from the language employed, that no exception could be made in equity that would not also be applicable at law. But, even at law, while there is decided conflict, the weight of authority and the better reason is in favor of the view that a cause of action, kept fraudulently concealed, will stop the bar of the statute in favor of the one against whom the fraud is perpetrated, until the fraud is or should have been discovered. As is said by Mr. Justice Miller in Bailey v. Glover, 21 Wall. 342: “To hold that by concealing a fraud, or by committing a fraud in a manner that it concealed itself until such time as the party committing the fraud could plead the statute of limitations to protect it, is to make the law, which was designed to prevent fraud, the means by which it is made successful and secure.” Angell, Lim. sec. 186 ; First Mass. Turnpike Co. v. Field, 3 Mass. 201; Homer v. Fish, 1 Pick. 435; Welles v. Fish, 3 Ib. 74; Farnam v. Brooks, 9 Ib. 212; Sherwood v. Sutton, 5 Mason (Cir. Ct.) 143; Mitchell v. Thompson, 1 McLean, (Cir. Ct.) 96; Buswell, Lim. sec. 390 ; Duffitt v. Tuhan, 28 Kas. 292; Yniestra v. Tarleton, 67 Ala. 126; Cole v. McGlathry, 9 Me. 131; Bishop v. Litte, 5 Ib. 362; Douglas v. Elkins, 28 N. H. 26; Harrisburg Bank v. Forster, 8 Watts, 12; Andrews v. Smithwick, 34 Tex. 544; Miles v. Berry, 1 Hill, (S. C.) Law, 296.
No mere ignorance on the part of plaintiff of his rights, nor the mere silence of one who is under no obligation to'speak, will prevent the statute bar. There must be some positive act of fraud, something so furtively planned and secretly executed as to keep the plaintiff’s cause of action concealed, or perpetrated in a way that it conceals itself. And if the plaintiff, by reasonable diligence, might have detected the fraud, he is presumed to have had reasonable knowledge of it. Buswell, Lim. sec. 385; Story, Eq. Jur. "sec. 152; Piper v. Hoard, 65 How. Prac. 228; Underhill v. Mobile Fire Ins. Co. 67 Ala. 45; Ramsey v. Quillen, 5 Lea, 184; Adams v. Ipswich, 116 Mass. 570; Wood v. Carpenter, 101 U. S. 129; Tyler v. Angevine, 15 Blatchf. 536-41. See, also, McAlpine v. Hedges, 21 Fed. Rep. 690; Eiffert v. Craps, 58 Fed. 470.
Had Samuel W. McKneely surrendered the deed, which he had taken away, to Mrs. W. E. Terry, or some one for her, instead of giving it to one of his own relatives, with instructions “to take good care of it,” as the proof shows he did, doubtless we would not now have been discussing the question of laches. That deed would have made her title clear. Without it, her rights were involved in such a tangled web as to preclude the idea of laches for not attempting to assert them. She did not know of the existence of the deed, and by no reasonable inquiry could she have ascertained any facts that could lead to its discovery. The same purpose which caused its removal in the first place doubtless controlled in its concealment, and it was only a mere chance that brought it to plaintiffs’ possession. There is evidence that, bn t one occasion, plaintiff, Mollie C. Terry, had heard her mother say that “her uncle, Sam. W. McKneely, had come to her house after her husband’s death, and made way with some paper or written obligation relating to the John Dickson land.” But there is also evidence to the effect that she did not believe what she heard. If the deed was fraudulently taken away and kept concealed by the machinations of McKneely, as the court below found, and the evidence tends to show, is Mrs. Terry to be charged, by those who stand in his shoes, with laches, for refusing to suspect him of dishonesty and fraud? We think not. Kilbourn v. Sunderland, 130 U. S. 505. And, even if her suspicions had been aroused, by what she had heard, 'suspicion is not discovery. Marbourg v. McCormick, 23 Kas. 43. But, if she should have suspected, and if her suspicions should have led to inquiry, then, even, the proof shows she has met every requirement that could have been reasonably expected in that particular, through her husband, W. B. Terry. The testimony is voluminous, but our conclusion from a careful consideration of it, is that the court was correct in holding that Mrs. Terry was not barred by laches, and in decreeing to her an undivided one-third interest in the lands sued for, as the heir of David H. Dickson.
When specific performance denied.
4. As to whether plaintiffs, Mollie C. Terry and John D. Trigg, were each entitled to an undivided one-sixth interest in the lands sued for, as the heirs of Mrs. Bavinia McKneely, the court made no special finding, but found generally that there was nothing in their contention in this particular. This was correct. It is exceedingly doubtful whether McKneely ever entered into a contract to convey to his wife an undivided one-third interest in the lands sued for. There is nothing to show that she was asking or insisting upon anything of the kind herself, or that David H. Dickson, who is said to have procured such a contract, was ever authorized or empowered to act for her. She lived almost seven years after said contract is alleged to have been made, and it appears she died perfectly satisfied, and there is nothing to show that she ever claimed any interest in the land. It had been twenty years since the alleged agreement was said to. have been made, and thirteen years since Mrs. Dayinia’s death. After such a great length of time, her heirs should not be granted a decree in the nature of specific performance of ' an alleged executory contract, except upon proof most clear and convincing. In this case it is too vague and uncertain to warrant such a decree. The plaintiffs, therefore, as the heirs of Davinia McKneely, take nothing by their cross-appeal.
n0 dower in trust lands.
5. Mrs. Mattie McKneely could not assert a claim for dower as an innocent purchaser for value, against the plaintiffs, McKneely, her husband, was not seized at his death of an estate of inheritance in the lands of which Mrs. Terry has been adjudged the owner. Sand. & H. Dig. sec. 2520. The legal estate was in McKneely, but the equitable estate was in her, and no right of dower can be set up against such a title. 1 Wash. Real Prop. p. 228.
Liability of deceased co-tenant’s estate tor rents.
6. Was Mrs. Terry entitled to rents and to a lien for same upon the share of co-tenants? Section 1 5917 of Sand. & H. Dig. makes a tenant in common liable to his co-tenants for rents, where he has “taken, used, or had the benefit thereof in greater proportion than his interest.” There can be no doubt that a court of equity, according to the principles above discussed, will extend the time for recovery, where the cause of action has been fraudulently concealed, to the statutory period after the fraud has been, or by ordinary diligence should have been, discovered. Sand. & H. Dig. sec. 4846. Samuel McKneely died February 17, 1889. This suit was begun the 6th of March following. There was an administration upon the estate of Samuel W. McKneely, as was alleged in the amendment to Mrs. McKneely’s separate answer, and which was nowhere denied. The claim of Mrs. Terry for rents collected by McKneely, 'during his life, was a demand against his estate, and not against his heirs. No judgment could be legally rendered against them for such a demand. But her claim was a subsisting demand against the estate of McKneely at the time of his death, and, under the plain letter of our statute, and decisions, the demand should have been duly authenticated and exhibited to the administratrix. Sand. & H. Dig. sec. 110, subd. 5; secs. 113, 114, 115 ; Walker v. Byers, 14 Ark. 253.
But, if it be said that the cause of action as to rents did not accrue until after the discovery of the deed by plaintiff, Mrs. Terry, still that would not relieve her, for the deed was discovered in less than a year after McKneely’s death, according to the allegations of her bill. The claim, nevertheless, should have been properly exhibited. Walker v. Byers, supra; Bennett v. Dawson, 18 Ark. 334. See, also, Patterson v. McCann, 39 Ark. 577; Morgan v. Hamlet, 113 U. S. 449.
Mrs. Terry has not established her claim for rents in the manner prescribed by our statutes. Until she has done so, plainly, she could not go into a court of equity and ask that a lien be declared upon the share of a co-tenant for such claim or demand. If there be a lien (which, in the view we have taken, it becomes unnecessary to decide) she has no standing in a court of equity to enforce it; for the lien in such a case would be the pure creation of a court of equity, growing out of no legal or contractual estate, — not a right of property, but a mere remedy, bottomed solely upon the debt or demand, and having no independent form and foundation for its enforcement. So it was held by this court in the case of a vendor’s lien, and, by analogy, and with even greater reason, is the principle applicable here. Linthicum v. Tapscott, 28 Ark. 267. See, also, Stephens v. Shannon, 43 id. 464; Waddell v. Carlock, 41 id. 523.
The decree in favor of Mrs. Terry for an undivided one-third interest in the land was correct. The decree as to rents accruing prior to McKneely’s death was erroneous. The cause is therefore reversed, and remanded with directions to enter a decree in accordance with this opinion, and for further proceedings.
Battle, J., being disqualified, did not sit in this case.