ACTION of trespass, to try title to certain land, brought by David E. Davis against Samuel H. Cox. The defendant's plea was not guilty, and the statute of limitations; plaintiff recovered judgment below. The bill of exceptions taken by defendant shows title in plaintiff as follows: David S. Boyd had possession prior to the possession of Cox; Boyd conveyed to several parties, and ultimately his title vested in James J. Harrison; one Smith, administrator de bonis non of Harrison, in March, 1848, conveyed to Davis, the plaintiff below. The bill of exceptions further set forth a transcript from the orphans' court, showing the appointment of Smith as administrator de bonis non; the petition of said administrator to sell said land for more equal distribution; the order of sale by the court; the sale, and the report thereof; the confirmation of the sale; and the conveyance to said Davis, as aforesaid. Defendant showed that he went into possession of the lots in December, 1836, and continued such possession till the present time; but the record shows no claim of right.

Henry W. Cox, for the plaintiff in error.

A. B. Moore, for the defendant.

By Court, PARSONS, J. As Boyd had possession of the lots, and made valuable improvements thereon, before the possession of the defendant below commenced, and as the plaintiff below derived his title by several successive conveyances from Boyd, the former, upon these facts alone, could recover against Cox, the defendant below, who was in possession without any title or claim of right. It was not necessary, in this case, to show a paper title in Boyd: Badger v. Lyon, 7 Ala. 564; McCall v. Doe ex dem.. Pryor, 17 Id. 533, at this term. The counsel for the plaintiff in error has, however, made many objections to the documentary evidence of the title of the plaintiff below, and we will consider them all, though not in the order in which his assignment of errors presents them. He objected to the transcript of the proceedings of the orphans' court, under which the sale to the plaintiff was made by the administrator: 1. Because it does not appear thereby, as he contends, that the orphans' court had jurisdiction of the intestate's real estate. 2. Because the petition showed that all the heirs were minors. 3. Because it does not appear that the orphans' court, upon the filing of the petition, took any action thereon. 4. Because it does not appear that the petition was filed forty days before the final hearing. 5. It does not appear in the testimony taken, or in the order

directing the sale of the lands, that they could not be equally, fairly, and beneficially divided. 6. That no order appears by which Lyon, who appeared as guardian of the children of intestate, was appointed as such. 7. That it does not appear the administrator gave forty days' notice of the sale, as required by the order of the orphans' court. 8. That the circuit court erred in admitting the administrator's deed to the plaintiff, because it was made in a proceeding of which the orphans' court had no jurisdiction.

The petition, which was filed by the administrator for the purpose of obtaining an order of sale under the statute, appears to state the necessary facts, and it is in good form. The court thereby acquired jurisdiction to decree a sale of the real estate of the intestate. The jurisdiction having attached, and the court having afterwards ordered the sale, which was made by the administrator to the plaintiff below, as the highest bidder, that sale was good without regard to the number of errors which the court may have committed in its proceedings, after the jurisdiction attached. If the counsel for the plaintiff in error could show that the orphans' court committed such errors in the proceedings as to justify a reversal of the order of sale, or decree of confirmation, on appeal or writ of error, that could effect nothing in this case, for this is an attempt to assail the title of the purchaser collaterally, which can not be done upon any such grounds, and instead of saying more upon these several objections to the title, we refer to cases in which the subject has been exhausted, and by which we are fully sustained: Wyman et al. v. Campbell, 6 Port. 219 [31 Am. Dec. 677]; Lightfoot v. Doe ex dem. Lewis' Heirs, 1 Ala. 475; Doe ex dem. Duval's Heirs v. McLoskey, Id. 708; Heirs of Bishop v. Hampton, 15 Id. 761.

For explanation we will state, that, although it does not appear by the record that the court acted on the petition at the particular time when it was filed, yet a commission issued to take testimony, some time before the order of sale was made, and the testimony was taken. It does not appear either, that it was filed full forty days before the date of the order of sale, but the contrary does not appear. The order of sale, after reciting the petition, among other things, states: "The court proceeded to hear and determine the cause, and it appearing to the satisfaction of the court, from the proof regularly taken, as in chancery cases, and filed in this case, that it is necessary to sell said lands," and then follows the order of sale. The language

of the court must be understood as referring to the necessity for a sale, which is stated in the petition, and as the latter corresponds with the statute, the order is not erroneous for not more explicitly stating the ground of the necessity; or, if it be so, it is not void.

It is also assigned for error, that the court below permitted one of the deeds to be read upon proof of the grantor's signature, it appearing that the subscribing witness had left this state, and permitted another of the deeds to be read upon similar proof, the subscribing witness in the latter case having become incompetent from interest, without requiring proof of the signature of either of the witnesses. It appears to have been settled here that deeds are admissible in such cases, upon proof of the handwriting of the grantor: Mardis v. Shackleford, 4 Ala. 503; Lazarus v. Lewis, 5 Id. 457.

It is further assigned as error that the court charged the jury, that the statute of limitations of ten years was not a bar to the action, because ten years had not elapsed since the passage of the act of 1843, which prescribed the bar. There was no error in this: Henry and Wife v. Thorpe et al., 14 Ala. 103; Doe ex dem. Nickles v. Haskins, 15 Id. 619 [50 Am. Dec. 1541; Doe ex dem. Kennedy v. Townsley, 16 Id. 239.

The last question raised by the assignment of errors is this: Did the court err in refusing to charge the jury, that if five years had elapsed since the passage of the act of 1843, and before the commencement of this suit, then they should find for the defendant? It is enacted by the first section of the statute of 1843, that where any lands had been sold or might thereafter be sold, under the decree of the court of chancery, to satisfy any mortgage, deed of trust, or other incumbrance, all rights or equities of redemption in any person not a party to the decree of sale, who shall claim under the mortgagor or grantor in the deed of trust or incumbrance, shall be forever barred and precluded, unless the suit for redemption be commenced within five years from the execution of such decree of sale. The proviso to this section is in these words: "Provided, that no suit shall be barred by the operation of this act within five years from its passage." By the second, which is the last section, it is enacted that "all actions for recovery of lands, tenements, or hereditaments in this state, shall be brought within ten years after the accrual of the cause of action, and not after," with a proviso which is not material in this case: Clay's Dig. 329, secs. 92, 93. The first section provided the bar of five years for two

classes of cases: 1. Those in which there had, at the passage of the act, been a sale; and, 2. Those in which there might thereafter be a sale. It was the intention of the legislature that the act should operate prospectively only. It was the object of the proviso to prevent misconstruction of the first section, in relation to the first class. It might otherwise have been thought that as this part of the first section related to sales that were made before the passage of the act, it was the intention that as to them the act should operate retrospectively. As this was the sole object of the proviso, it can have no effect on the bar created by the second section, which applies to the present question. The word "act" in the proviso, it is true, might very well include both sections, but we had better limit the meaning of that word than permit it to produce a distinction between cases provided for by the second section, when it is clear that none was intended. We can see no error in the rec

ord.

Let the judgment be affirmed.

PRIOR POSSESSION UNDER CLAIM OF TITLE is sufficient as against a defendant who sets up no title: Warner v. Page, 24 Am. Dec. 697; Jackson v. Harder, 4 Id. 262; said prior possession may be shown as well without a deed as with one: Den v. Morris, 11 Id. 508.

ORPHANS' COURT SALES CAN NOT BE ATTACKED COLLATERALLY for irreg. ularities, mistakes, or errors in the proceedings of the court. Purchasers need only inquire whether the sale was ordered by a court having jurisdiction to order it: See McPherson v. Cunliff, 14 Am. Dec. 642, and note; also Klingensmith v. Bean, 27 Id. 328.

DICTUM THAT BY CHANGE IN STATUTE OF LIMITATIONS the time already run constituted no part of the new limitation was announced in Henry v. Thorpe, 14 Ala. 103; Doe ex dem. Nickles v. Haskins, 15 Id. 619; S. C., 50 Am. Dec. 154; but the question came directly before the court in Rawls v. Doe ex dem. Kennedy, 23 Id. 240, and the doctrine was repudiated.

BRADFORD ET Ux. v. GREENWAY ET AL.

[17 ALABAMA, 797.]

WHERE EQUITABLE REMEDY EXISTS INDEPENDENT OF ACTION AT LAW, the equitable rule that the legal remedy must first be exhausted does not apply. SEPARATE PROPERTY OF MARRIED WOMAN, CONFERRED UPON HER BY MARRIAGE SETTLEMENT, which provides that she shall have "the complete control of it as though the marriage had never taken place," and contains no restraint upon alienation, causes her to be regarded in a court of equity, with regard to such property, as a feme sole, and she may, by her agreement, freely entered into, charge it for the payment of her hus band's debts.

IF HIRE OF PROPERTY WILL NOT, WITHIN REASONABLE TIME, SATISFY JUDG MENT, a sufficient quantity of it may be sold to satisfy said judgment. THE opinion states the facts.

Robinson, for the plaintiffs in error.

Clay and Clay, for the defendants.

By Court, CHILTON, J. This bill was filed by the firm of Greenway, Henry & Smith, to recover satisfaction out of the separate estate of Mrs. Louisa Bradford, wife of Larkin Bradford, of a bond in the following words: "By the first day of January, 1846, we promise to pay Joseph B. Bradford, nine hundred and eightyone dollars and forty-nine cents, with legal interest thereon from the first day of January last, it being for value by the undersigned, Louisa, received, and for which she hereby promises that her separate estate shall be liable. In witness whereof, we have hereunto set our hands and seals. Larkin Bradford (seal). Louisa Bradford (seal)." Dated May, 1844. The bill avers that the makers of the note were sued at law by the complainants, who are the assignees thereof, and that Mrs. Bradford was discharged on the plea of coverture, but judgment was rendered against her husband, Larkin, who is utterly insolvent. It does not appear, however, that any return of "no property," etc., was had upon an execution on said judgment against him, previous to filing the bill.

It appears that the real consideration of the note was a debt due from Larkin, the husband, to the payee, Joseph B. Bradford, and that the wife signed the same without reading it, being requested by her husband "to go with him on a bond." She answers, admitting that she has a separate estate, secured by marriage articles to her use, and over which is reserved to her the same control as if the marriage had never taken place. She further admits that she intended by signing the note to become her husband's security, but insists that the peculiar wording of the agreement or bond, so far as it recites that the consideration was received by her, and that it should be a charge on her separate estate, was fraudulently concocted by the payee, etc. It is sufficient upon this point in the case to say, that upon a careful examination of the record, the charge of fraud contained in the answer is not sustained by the proof. We think it more than probable that when Mrs. Bradford signed the bond, she was not apprised that these recitals were in it, but there is evidence that she could read and write, and that it was laid before