(after stating the facts). 1. Appellant, under our statute and decisions, acquired a life estate to the land in controversy by virtue of the deed of Sollis to her. Horsley et al. v. Hilburn et al., 44 Ark. 458; Wilmans v. Robinson, 67 Ark. 517.
Her purchase of the land at the foreclosure sale gave her no title which she could confirm as against the appellee. Appellant was the natural guardian of appellee. Kirby’s Digest, § 3757.
In Hindman v. O’Connor, 54 Ark. 627, on petition of the curator of the estate of minor children the probate court ordered a sale of certain lands belonging to them. The land was purchased by one who stood in the relation of gmsi-natural guardian to the minors at their request. The sale was reported to and confirmed by the court. In that case we said: “No one placed in a situation of trust or confidence in reference to the subject of the sale can be purchaser on his own account of the property sold.” And, after reviewing many cases of our own and other courts, Judge Battle, speaking for the court, said: “The doctrine as to purchases by trustees, guardians, administrators and persons having a confidential character arises from the relation between the parties, and not from the circumstances that they have power to control the sale.” Again: “If the trustee, or other person having a confidential character, can buy in an honest case, he may in a case having that appearance, but which may be grossly otherwise; and yet the power of the court, because of the infirmity of human testimony, would not be equal to detect the deception. It is to guard against this uncertainty and the hazard of abuse, and to remove the trustee and other persons having confidential relations from temptation, that the rule does and will permit the cestui que trust or other person to come, at his option, and, without showing actual injury or fraud, have the sale set aside.”
In the recent case of Burel v. Baker, 89 Ark. 168, we held that a mother occupies a relation of trust or confidence to her children which precludes her from purchasing their land. If the purchase at foreclosure sale by a mother, a life tenant, of lands belonging to the heirs of her body' gives her no title which she could hold against them, and which could be set aside at their instance, then, of course, it necessarily follows that she could not have a title, which she had acquired by purchase of their lands, confirmed as against them. The doctrine announced in the above and other cases of our own court necessarily rules the question under consideration. See other cases cited there.
Appellant relies upon cases which hold that the relation of the life tenant to the remainderman is not of such a fiduciary character that he can not purchase the property at a foreclosure sale which will give him a fee simple title. But there is a contrariety of view as to whether or not the purchase by a life tenant of an outstanding title gives him a fee simple title — one that he can assert against the rights of the remainderman. The solution qf that question does not arise upon the facts alleged in the complaint under review. It is the fact of fiduciary or confidential relation, and not the fact of her life tenancy, that precludes the appellant from the right to purchase, and the right to have the title acquired by her purchase at the foreclosure sale confirmed as against the appellee. Therefore, the authorities which merely hold that a tenant for life occupies no position of trust or confidence to the remainderman, where no relation of trust or confidence is shown, are not applicable to the facts disclosed by this record.
2. Appellant contends that appellee was bound by the decree of foreclosure, and that the approval of the deed under that decree gave appellant title as against the appellee. But the issue now between appellant and appellee was not raised and could not have been raised in the foreclosure proceedings. Appellant is seeking to quiet title against appellee and the burden is upon appellant to show that she has title to quiet. This she fails to do.
3. The appellant next contends that she should recover in this srction, u<s the appellee in order to defend, should have offered contribution. The record shows that the court “offered to grant petitioner leave to amend her petition so as to ask a foreclosure of the lien against the property described in the petition to confirm.” This the appellant declined, but stood upon her petition. The only question, therefore, is as to whether her petition stated a cause of action. The court correctly ruled that it did not.
The judgment is therefore affirmed.