Whittington v. Flint. limitations began to run against the plaintiff from that date. And judgment was given for the defendant. Upon the acquisition of title by adverse possession, when a relation of trust or privity of estate subsists between the parties, the previous decisions of this court are in a state of hopeless confusion. From these decisions no one interested in an estate incumbered by an old, but unsatisfied mortgage, can tell what his rights and obligations are. He cannot with safety purchase, sell or improve. And no lawyer can, with any confidence, give advice to his client under such circumstances. He can only inform him that if litigation arises about it, and the suit is brought in, or removed to the Federal court, the rule of decision will be one way; while if it is pending in the State courts, it will depend on the individual views of the trial judge and the members for the time being of the appellate court. This is an intolerable condition of things. It therefore behooves us to make our reckonings and take observations with a view to determine to what point we have drifted. In Harris v. King, 16 Ark. 122, a vendor of land received the purchase-money, gave his vendee a bond for title, and died in possession without ever having done an act inconsistent with his vendee's title. His administrators sold the land as part of his estate. Upon a bill filed by the first vendee more than ten years after the transaction for specific performance, and to annul the deed made by the administrators, it was ruled that the original vendor held the naked legal title in trust for the vendee; that the purchaser at administrator's sale stood in the same situation, and the statute of limitations was no bar. True there was in the bill an allegation, and in the evidence some proof that the vendee had constituted the vendor his agent in respect to the land. But the case was not decided on the doctrine of agency but on the broad ground that the statute does not run against an express trust so long as the trustee does not deny the rights of his cestui que trust. Singularly enough the very next case in 16 Ark. 129, Sullivan v. Hadley, proceeds upon an entirely different principle. The circumstances were these: A debtor in Tennessee had for the better securing of his creditors, executed a deed of trust upon slaves and other personal property. He had afterward emigrated to this State and by permission of his trustee had brought the slaves with him; but the deed of trust was recorded in the county which he selected for his new residence. The maker of the trust deed had never Whittington v. Flint. denied the trustee's right to the slaves, but on the contrary, had used the trust deed both in Tennessee and in Arkansas, to keep his unsecured creditors at bay. Upon a bill filed by the trustee to foreclose the trust deed less than nine years after it was made, this court held that five years' peaceable possession of the slaves barred all relief. In other words the court presumed without evidence and indeed when the facts all pointed the other way, that the possession of the creator of the trust was hostile to the title of the trustee. was to confound actual possession with adverse possession. This In Conway v. Kinsworthy, 21 Ark. 9, the owner of an unlocated donation claim had executed an instrument which was duly acknowledged and recorded, reciting that he had sold his claim and covenanting to convey the legal title to the land to be entered with it as soon as the patent was issued. The lands were afterward located and a patent issued; but the patentee instead of making a deed to the persons to whom he had sold his claim, sold and conveyed the land to another party. Upon a bill filed thirteen years afterward to establish title under the first sale, against one who claimed under the second sale it was held too late. Here the trustee had disavowed the trust; and this according to all the cases set the statute in motion. Guthrie v. Field, 21 Ark. 379, follows Sullivan v. Hadley, and holds that a mortgagor of real estate being in possession, may rely upon lapse of time as a defense to a bill to foreclose, brought more than ten years after the date of the mortgage. In Trapnall v. Burton, 24 Ark. 371, it was adjudged that the possession of a defendant in execution, who continues to hold over after a sale of land without any agreement to hold under the purchaser is adverse and the purchaser is barred if he does not gain actual possession in ten years. In Lewis v. Boskins, 27 Ark. 61, it was ruled that where land is sold on a credit and bond is given to make title on payment of the purchase-price, the transaction is the same in legal effect as if the vendor had conveyed the land by absolute deed and had taken a mortgage back; that the vendor's lien under such circumstances exists as a charge upon the land, binding not only the vendee, but his privies in law, blood and estate; and that the vendee cannot, so long as he retains possession, deny his vendor's title. McGehee v. Blackwell, 28 Ark. 27, and Hall v. Denckla, 28 Ark. 506, proceed upon the idea, that when upon a sale of land, the vendor retains the legal title as security for the purchase-money, a bill Whittington v. Flint. to foreclose must be brought within the time limited by law for bringing an action of ejectment, which by act of January 4, 1851 (Gantt's Dig., § 4113), was shortened to seven years. Birnie v. Main, 29 Ark. 591, returns to the old doctrine of Harris v. King, that in order to constitute an adverse holding in favor of the mortgagor, there must be an open and notorious denial of the mortgagee's title, and that until such denial the possession of the mortgagor is the possession of the mortgagee. In Mayo v. Cartwright, 30 Ark. 407, a debtor had given a deed of trust upon a plantation to secure the payment of a debt. The deed was registered in the proper office. The debtor, who had remained in possession, in a year or two, sold and conveyed the plantation for a full consideration, and with covenants of warranty, to a stranger, who had no actual knowledge of the previous incumbrance, but was chargeable with constructive notice by the registry. The purchaser entered, cultivated the plantation, took the rents and profits, made valuable improvements and paid the taxes. The debtor made payments from time to time on the debt secured by the trust-deed. Eleven years after the sale to the stranger, but not over six years since the secured creditor had received a payment on his debt, the trustee advertised the property for sale under a power contained in the deed. The purchaser enjoined the sale upon the ground that he had been in the adverse enjoyment of the premises for more than seven years. And the court held that the trustee had slept upon his rights too long. The course of reasoning by which this result was reached was as follows: From uninterrupted and exclusive occupation and the exercise of acts of dominion over the land, the court assumed that the purchaser's possession was adverse to those claiming under the trust-deed; and the makers of the trust-deed having parted with all interest in the land, his subsequent payments on the debt, while reviving the debt. against himself, could not bind the land, being res inter alios acta. The only authority cited was N. Y. Life Ins. Co. v. Covert, 29 Barb. 435, a decision of the Supreme Court of New York, which was reversed by the Court of Appeals (6 Abb. Pr. [N. S.] 154), and the rule declared to be that the presumption of payment arising from the lapse of twenty years since the cause of action accrued, is not available to the owner of the equity of redemption, to defeat the foreclosure, if the mortgagor has made payments upon the mortgage debt within twenty years before the commencement of the Whittington v. Flint. suit; and that if the mortgage is recorded, the grantee of the equity of redemption takes his title subject to the lien of the mortgage; and the mortgagor still has the power to prevent the exoneration of the land through lapse of time by making partial payment. See also Heyer v. Pruyn, 7 Paige, 465, for the rule upon this subject in New York. Coldcleugh v. Johnson, 34 Ark. 312, follows Birnie v. Main, and announces that the possession of a vendee by title-bond is not adverse, and the statute will not begin to run for his protection until there has been an open and notorious denial of his vendor's title. These are the principal cases in our reports on this subject, and it is manifest from a brief review, that they have been decided without much reference to each other, and that there is in this State nothing like a settled rule of property to guide us. So notorious is this fact that the Federal courts, which ordinarily follow the State courts in matters affecting real estate and in the construction of State statutes, have refused to follow our oscillations on this point, but have always adhered to the rule as first laid down in Harris v. King, supra. Thus in Lewis v. Hawkins, 23 Wall. 119, there was a sale of land in this State by bond for title in 1853. In 1855 the vendee sold and conveyed to a stranger, who entered and held possession until his death in 1866, and after his death his widow and children continued to occupy the premises. In 1871, a bill was filed to enforce the vendor's lien for the purchase-money due upon the sale in 1853. The defense was seven years' possession under the statute. And the court held that the vendee, or a purchaser from him, stood in the relation of a trustee to the vendor for the unpaid purchase-money, against whom the statute does not run. In this case the sub-purchaser had assumed the payment of the original purchase notes. But the suit was brought some sixteen years after such assumption, and the decision did not turn on this feature. See also Butler v. Douglass, 1 McCrary, 630, where it is stated that a bill to foreclose a vendor's lien for purchase-money on real estate, is not barred under twenty years. If there were any established rule applicable to this case, we should follow it, however unreasonable it might appear to us; leaving the legislature to devise a remedy, which in that event would only operate prospectively. For the alteration by courts of rules of property affecting the transfer of real estate and the consequent VOL. LI-73 Whittington v. Flint. 66 disturbance of titles acquired in faith of the stability of those rules is a very grave matter. A rule of decision once deliberately adopted and declared ought not to be disturbed by the same court, except for very cogent reasons and upon a clear manifestation of error." But there are cases which "ought to be examined without fear, and revised without reluctance, rather than to have the character of our law impaired, and the beauty and harmony of the system destroyed by the perpetuity of error." 1 Kent. Com. 476-7. Turning to the adjudications elsewhere, it is not difficult to discover what the law is on this subject. Thus Hall v. Doe, 5 B. & Ald. 687 (7 E. C. L. R. 232), decided in 1822. was a case where premises were mortgaged in fee, with a proviso for reconveyance, if the principal were paid on a given day, and in the meantime the mortgagor should continue in possession. Upon special verdict it was found that the principal was not paid on the day named, but that the mortgagor remained in possession. There was no finding by the jury either that interest had or had not been paid by the mortgagor. Under these circumstances, it was held by the Court of King's Bench that the occupation was by permission of the mortgagee; and consequently that although more than twenty years had elapsed since default in the payment of the money, still the mortgagee was not barred by the statute of limitations. It was further held that an entry by the mortgagee was not necessary to avoid a fine levied by the mortgagor. See also Doe v. Williams, 5 A. & E. 291 (31 E. C. L. R. 619), decided in 1836, and Doe d. Palmer v. Eyre, 17 A. & E. (N. S.) 366 (72 E. C. L. R.), A. D. 1851. In Chinnery v. Evans, 11 H. L. 115 (A. D. 1864), M. was possessed of estates in three counties, Cork, Kerry and Limerick. In 1776 he mortgaged them to F. The interest on the mortgage was not regularly paid, and on petition of F. a receiver was appointed. In form his appointment embraced the three estates; in fact he never entered into possession of any but the Limerick estate, from which alone he took the money necessary to keep down the interest on the mortgage. M., in 1789, without any knowledge of the matter on the part of F. sold the Cork and Kerry estates to C., who entered, continued in uninterrupted possession until his death in 1808, and his son had succeeded to the 'property. In 1856, after the lapse of nearly twenty years since the last payment made by the receiver, F. claimed to have a sale of all the estates included in the |