ON REHEARING.
BatteE, J.According to tlie opinion of this court heretofore delivered in this case, the sale by M. E. Gaines to Mrs. Martin was not void, but voidable by appellants. To avoid it, they must have made application to set it aside within a reasonable time, and paid Mrs. Martin the money expended by her in the purchase of .the land and interest thereon, and compensated her for improvements, if any, made by her on the same. Instead of doing so, they, by an amendment to their complaint, in response to her motion to be made a party to this suit, sought to have her purchase and deed annulled, on the ground that they held liens on the land prior and superior to any right or title thereto acquired or claimed by her by virtue of her purchase. Upon this ground they prosecuted this suit to a final decree in the chancery court, claiming and asking no benefit of her purchase.
Appellants were not bound to accept the benefit of Mrs. Martin’s purchase. They had the right to reject it, and, having done so, are bound by their election. In Adler-Goldman Commission Company v. People’s Bank, 65 Ark. 380, Smith made an assignment of all his property to Yarnell for the purpose of securing, in the order named, the following creditors: First, the People’s Bank; second, J. C. Caldwell and J. M. Crabtree; third, the Adler-Goldman Commission Company; and, fourth, all other creditors. The People’s Bank caused the property assigned to be attached. The assignee claimed the property, and the assignment was sustained. The People’s Bank then sought to enforce its right of preference under the assignment. The court held that it elected to renounce the benefit of its preference, and, upon the assignment being sustained, it could not claim the benefit thereof.
In H. B. Claflin Company v. Bretzfelder, 69 Ark. 271, the court held, that “where a pledgee of stock elected to have it levied upon under attachment and condemned as the property of the pledgor, she thereby waived her right to enforce the pledge, although the attachment proceeding was ineffectual for want of a proper levy on the stock.”
In both of the cases cited the appellants sought to enforce rights which they could not sustain against and in preference to their unquestionable rights. So, in this case appellants have sought to enforce liens against and in preference to the rights acquired by Mrs. Martin. ■ According to the opinion of the court in this case, they had the right to avoid the sale to Mrs. Martin, and take the property by reimbursing her. They waived this right by pursuing the course they followed. They are not bound to accept voluntary gifts, much less property wrested by the law from “unwilling hands” and offered to them on condition that they return to Mrs. Martin the price paid by her for the same and interest. Refusing to accept it, they cannot afterwards recover it by process of law.
Having renounced the benefit of Mrs. Martin’s purchase in the chancery court, they cannot claim it in this court. They cannot occupy two such inconsistent positions. McDonald v. Hooker, 57 Ark. 632, 638. Having failed in a long contest to set aside her title, they are not entitled to the fruits of her well-earned victory.
Decree affirmed.