covenantee will be held conclusive against the indemnitor, where notice has been given to the latter to come in and defend the suit in which it was rendered, and an opportunity was given him to do so: Smith v. Corege, 53 Ark. 295; Dutil v. Pacheco, 21 Cal. 438; 82 Am. Dec. 749; Inhabitants of Veazie v. Penobscot R. R. Co., 49 Me. 119; Davis v. Smith, 79 Me. 351; City of Boston v. Worthington, 10 Gray, 496; 71 Am. Dec. 678; Train v. Gold, 5 Pick. 379; Mackey v. Fisher, 36 Minn. 348; Littleton v. Richardson, 34 N. H. 179; 66 Am. Dec. 759; Kip v. Brigham, 6 Johns. 158; Aberdeen v. Blackmar, 6 Hill, 324; City of Chicago v. Robbins, 2 Black, 423. In such cases, if the party duly notified has the right to appear and defend the action, he is no longer regarded as a stranger to the action, and he will be as much bound by the judgment as if he had been the real and nominal party upon the record. In Mackey v. Fisher, 36 Minn. 348, Berry, J., who delivered the opinion of the court, said: "The judgment, being thus admissible, might properly be found conclusive upon the defendants, because it might, upon the evidence, properly be found that they had notice of the action in which it was rendered, and that they had an unobstructed opportunity to defend it; that they had promised and assumed to defend it; that it failed to be defended because they failed to keep their promise." In that case, the defendants contracted in writing to erect a building for the plaintiffs, and to be responsible for any loss or injury to person or property occasioned by their negligence in and about the erection of the building. One Moran was injured through the negligence of the defendants, and brought suit against the plaintiffs and the defendants together. The defendants interposed an answer, but the plaintiffs, having failed to answer within the time allowed by law, applied for leave to answer after that time, but their application was denied. Moran thereupon dismissed as to the defendants, and the default of the plaintiffs having been entered, took judgment against them, and this judgment they were compelled to pay. In the action brought by them to recover the amount of this judg ment from the defendants, the evidence tended to show that after Moran's action was brought, the defendants promised and assumed "to take care of it,” and to put in an answer for all the parties, and there was no evidence to show that there was any obstacle to prevent them from so doing. It was held that the jury were at liberty to find that the defendants were concluded by the judgment obtained by Moran. The California Code of Civil Procedure, section 1055, provides that "if an action be brought against a sheriff for an act done by virtue of his office, and he give written notice thereof to the sureties on any bond of indemnity received by him, the judgment recovered therein shall be conclusive evidence of his right to recover against such sureties." In Dutil v. Pacheco, 21 Cal. 438, 82 Am. Dec. 749, it was held that this provision is founded upon the principle that the action is, in such circumstances, in substance, against the indemnifier, and that he cannot therefore maintain a bill in equity to set aside the judgment obtained therein. In Bartlett v. Campbell, 1 Wend. 50, it was decided that in an action against one on a joint and several promise of indemnity by two, notice to one is notice to both. In Tracy v. Goodwin, 5 Allen, 409, it was decided that a judgment, recovered without fraud or collusion, against a constable for a wrongful attachment is conclusive against him and his sureties, upon a bond executed by them jointly and severally. Chapman, J., delivering the opinion in that case, said: "The sureties have so made their bond that a joint judgment must be rendered in this suit against all the defendants." In Westervelt v. Smith, 2 Duer, 449, it was held that in an action on a bond given to indemnify a sheriff for damages sustained by him by reason of the

defaults of his deputy, a judgment against the sheriff is at least prima facie evidence against the surety sued, where the deputy had notice of the suit in which it was rendered, although the surety himself had no notice. And in Fay v. Ames, 44 Barb. 327, it was decided in a similar case that the judg. ment was conclusive against the sureties, and that they were not at liberty to litigate over again the liability of the sheriff in the former action, nor to prove facts in exoneration of their principal which the latter set up as a de fense in the former suit. In that case it was held that where parties join in a bond of indemnity as principal and sureties, they are in privity of contract with each other, and are to be regarded and treated quoad the contract, and the rights and liabilities connected with and growing out of it, as one person; and in such case notice to one is notice to all. Fay v. Ames, 44 Barb. 327, seems, however, to have been indirectly overruled in the subsequent case of Thomas v. Hubbell, 35 N. Y. 120, where it was held that the sureties on a deputy sheriff's bond are not concluded by a recovery against the sheriff, where they had no opportunity to appear and defend.

JUDGMENT PRIMA FACIE EVIDENCE ONLY, WHERE NOTICE OF SUIT IS NOT GIVEN. — Where a person enters into a covenant of general indemnity merely against claims and suits, a want of notice to him of the suit brought against his principal does not go to the cause of action, but the judgment rendered therein is prima facie evidence only in an action against such indemnitor, and he may be let in to show that the principal had a good defense which he neglected to make: Wells on Res Adjudicata, sec. 196; Duffield v. Scott, 3 Term Rep. 374; Smith v. Compton, 3 Barn. & Adol. 407; Lyon v. Northrup, 17 Iowa, 314; Train v. Gold, 5 Pick. 379; Stewart v. Thomas, 45 Mo. 42; Lee v. Clark, 1 Hill, 56; Thomas v. Hubbell, 15 N. Y. 405; 69 Am. Dec. 619; Bridgeport F. & M. Ins. Co. v. Wilson, 34 N. Y. 275; State v. Colerick, 3 Ohio, 487; Huzzard v. Nagle, 40 Pa. St. 178; Stephens v. Shafer, 48 Wis. 54; 33 Am. Rep. 793. The question how far a judgment against an executor or administrator concludes his sureties is discussed in the note to Heard v. Lodge, 32 Am. Dec. 202-204.

CHASE V. CARTRIGHT.

[53 ARKANSAS, 358.]

DEVISE TO EXECUTORS PASSES TITLE IN FEE WHEN. Where a testator by his will gives his property, both real and personal, to his executors, with power to dispose of it to the best of their judgment, directs them to pay certain large legacies, and devises over the estate then remaining, the executors hold the legal title to the property in fee, in trust, for the cestuis que trustent.

EXECUTOR NOT ESTOPPED BY HIS OWN VOID DEED. - An executor is not estopped by his own void deed of land from suing to dispossess persons claiming under it.

STATUTE OF LIMITATIONS, CESTUI QUE TRUST, WHEN BARRED BY. Where a trustee holding the legal title to land in fee is barred by the statute of limitations, all the cestuis que trustent are barred, whether they are entitled in possession or in remainder, vested or contingent, and whether they are sui juris or under disability.

VENDOR'S LIEN EXPIRES WHEN DEBT IS BARRED. - The lien of a vendor of land reserved in the face of the deed expires when the debt is barred by the statute of limitations.

THE opinion states the case.

W. M. Randolph, for the appellants.

W. G. Weatherford, for the appellees.

HEMINGWAY, J. The appellants, as residuary devisees and legatees under the will of Daniel Hughes, deceased, brought this suit.

Daniel Hughes died resident in Shelby County, Tennessee, on the 10th of February, 1862, seised of the land in controversy. By last will, which was duly admitted to probate in that county in March, 1862, he disposed of his estate as follows: "All my real and personal estate I give, in trust, to my executors for the purpose of disposing of it to the best of their judgment, for the support and education of my two children, the children of Eliza Darragh, and the support of the said Eliza. For that purpose they are to give the said Eliza one thousand dollars a year until the eldest child is nine years old (it is now nearly two), and if either of the children should die before then, there shall be no change made as to the amount of a thousand dollars a year. Should both children die before they are of age, Eliza Darragh is to receive out of my estate five hundred dollars a year during her life. Should the net income of my estate be two thousand dollars a year after paying the legacies hereinafter mentioned, I wish my father to have five hundred dollars a year of this income during his life, and if my mother outlives him, she is to receive it after his death. The residue is to be invested in Memphis City bonds until the children, or the survivor of them, is sent to college. I desire my executors to exercise their best judgment in the selecting of a suitable school, and to be liberal, if the means are in their hands to procure them a good education. But my executors are requested to check and stop the supplies if they should be satisfied there is extravagance by the children, and to pay no bills of theirs not authorized by the executors before contracted by the child or children; I wish the children plenty, but not waste." And the following: "In the event of the death of both of my children, mentioned above, before they have a child or children to inherit to them, I give to Elizabeth Higgins and Mary Ann Hughes

all my estate remaining, except the annuities as above mentioned." And the following: "I appoint James Hughes (my father), William Park, and John Cannavan the executors of my will. I know it is an unpleasant task, but I would render either of them any service in my power. They are to be required to give no security, for they will not abuse their trust.”

Of the parties named as executors, James Hughes never qualified, and William Park, who qualified, resigned in 1865. John Cannavan, the remaining executor, died in 1877, without, as it appears, having resigned or concluded his trust.

The will was duly admitted to probate in Crittenden County, this state, on the second day of March, 1866. There seems to have been at different times a scrambling administration of the estate, conducted by various parties under appointment from the probate court in that county; but, in the view of the case taken by us, it is unnecessary to consider the legal aspect or effect of the administration in this state. It was characterized by unseemly conduct, which cannot be contemplated without condemnation.

On the 16th of October, 1866, John Cannavan, the only acting executor, sold and conveyed to Asa Hodges the land in controversy for $1,280 in cash, and $1,280 payable twelve months after the date thereof, to secure which a lien was expressly reserved in the face of the deed. The appellees claim title by purchase from Hodges.

Lizzie Darragh, one of the children named in the will, died before the testator; Eliza Darragh, her mother, died in 1865; Daniel Darragh, the second child, left his residence in Memphis about 1870, and was not afterwards heard from by his relatives or friends, and is presumed to be dead. He was unmarried, and died without a child to inherit from him. The appellant, Mary Ann Winters, was a married woman when Daniel Darragh died, and so continued to the bringing of this suit.

The appellants seek, -1. To recover the land conveyed by Cannavan, as executor, to Hodges; but in the event that they are not entitled to that relief, they seek, 2. To recover the sum of $1,280, with interest, being the unpaid installment of purchase-money secured by him on the land, in the deed above mentioned. In support of their claim they say,-1. That the will did not confer a power of sale on the executors; 2. That the power conferred could not be executed by one only of the

AM. ST. REP., VOL. XXIL-14

executors; and 3. That a sale was authorized only upon stated conditions, which did not exist when it was made.

The appellees insist,-1. That a power of sale was conferred by the will; 2. That it was duly executed; 3. That they pur. chased in good faith, and entered immediately into possession of the land; that they had continually held it for seventeen years, claiming title against the world; and that they had good title by limitation; 4. That the installment of purchasemoney was paid; and 5. That it was barred by limitation. The proof sustained their contention as to their possession of the land. There was trial by the court, and judgment for the defendant.

It is insisted that the judgment is wrong, and should be reversed for many reasons pressed upon our attention. In the view we have taken, it is essential for us to consider only the defense of limitation and such other matters as are involved in its correct determination.

The appellants contend that, until the death of Daniel Darragh, they had no right in possession, but only in remainder; that they were not entitled to bring any suit either for the land or the purchase-money during his life; that the statute was not set in motion against them until he died, and that they brought this suit in apt time thereafter. If mistaken in that contention, their claim to the land must fail against the plea of limitation. Is it correct? Our answer must depend upon the construction of the will, for it makes a great difference whether the executors are held to have acquired the legal title for life or in fee.

The language of the will leaves no room for doubt as to the wish of the testator in that regard. His purpose as to the disposition of his estate is clearly and concisely stated in the first clause of the will. It gives all his real and personal estate, in trust, to his executors, for the purpose of disposing of it to the best of their judgment, for the support and education of his two children and for the support of Eliza Darragh. The executors are directed to pay certain annuities and money bequests, the latter aggregating about ten thousand dollars. If the two children die without leaving a child or children who could inherit, the estate remaining is devised over to the appellants. The language of the grant to the executors in its ordinary acceptation would be held to convey an estate in fee: 1 Sugden on Powers, 129, 130. There is nothing to limit the estate passed to a life estate only, as in