cient to say that no exception was taken to the order sustaining the motion of Mr. Riggs to come into the case as a defendant. No exception to a ruling on such a motion can be interposed for the first time in the supreme court. It must be seasonably made in the trial court; otherwise it cannot be reviewed on appeal. Rev. St. 1889, § 2302. On the other branch of this assignment of error, the defendants Mr. Simpson and Mrs. Fulton were originally defendants, charged with being in possession, adverse to plaintiff's rights. They disclaimed ownership by their answer, and alleged that they held as tenants at will of Mr. Riggs. The answer of the latter recognized that tenancy. In that state of the record, a right to possession of the land in Mr. Riggs, based on his record title, would protect all holding under him, as his codefendants claimed to do. The plaintiff in ejectment must recover, if at all, on the strength of his own title, or right to possession. Mr. Riggs claimed title, through mesne conveyances, under a patent from the United States government to Thomas Boxley, in 1829. His chain of conveyances was compiete; and, unless he had lost his rights by the adverse occupancy of others, he plainly was entitled to possession, upon his paper title (which the court rightly interpreted and construed), if the piece of land in question came within the calls in the description, as a matter of fact. This being found by the jury to be so, the other defendants in possession were entitled to defend against plaintiff upon Mr. Riggs' title, especially as the pleadings showed their friendly and subordinate relation to that title.

4. It is next insisted that the court erred in sustaining an objection to a question put to Mr. Forgey as a witness, namely: "Did you take possession under the purchase from Valle?" Notwithstanding the objection and exception, however, the witness was permitted to reply that he sold the land in controversy to plaintiff. The latter, in due time, gave in evidence his acts in regard to the possession as follows, viz.: "I took possession of the land in 1873. Q. Where is the house? A. On the 51 acres. The 51 acres are not in controversy. Q. What did you do with this land in controversy? A. Nothing. The water was over it. Q. Did you build a fence on it? A. Nothing at that time. Later on, in 1879, I built a brush fence. Q. Did you do work on the land? A. Yes, sir; about $100 worth. When it was levied, the water did not overflow it any more. I kept possession of it from 1873 to 1875, and got it back in 1879, and held possession two years. Q. Refresh your memory. Was it not in the latter part of 1882? A. I think it was. Defendants Simpson and Fulton have had possession of it ever since." It is evident, from other rulings of the court and the whole course of the trial, that the objection to the question

above quoted was sustained, because the question called rather for a conclusion of the witness than for facts. While possession is often a mere issue of fact in cases of this sort, it does not follow that such a question as is now before us is always a proper one. Whether or not the acts of the parties in reference to the property amounted to a taking of possession was an important inquiry in the case at bar. The court allowed the fullest latitude of examination as to what was done in reference to the land by plaintiff and his predecessor in title, Mr. Forgey. Having admitted that evidence, we think there was no substantial error in refusing to allow the latter witness to say whether he had taken possession or not. The court did not decline to allow him to fully state all his acts in relation to the land. It merely declined to allow him to give a legal construction to his acts in that regard.

5. It is furthermore urged, with great in. genuity and ability, by the eminent counsel for plaintiff, that the United States never acquired title to the land patented to Boxley, under whom Riggs claims, because it was embraced within the grant to Choteau by the Spanish government before the acquisi tion of the territory of Louisiana by the federal government. It will not be neces sary to follow counsel through the course of his argument on that subject. Whatever may be its force, it seems to us very clear that the Boxley patent and the various private conveyances of the same property, since made and duly recorded, constituted color of title, at least, and that the possession of Riggs under those conveyances (which the evidence tended to prove) would ripen into a perfect title by lapse of time, and by the force of our statute of limitations. The learned argument on this branch of the case depends, moreover, on the assumption that the land in dispute falls within the original Spanish concession to Choteau. That fact is denied by the finding of the jury under the evidence in the case, which consisted of various surveys and other testimony touching the location of the piece of land in suit. There was abundant foundation for the finding that that piece of land was not within the concession to Choteau.

6. Plaintiff complains of the modification of one of his requests for instructions. The instruction as given by the court is indicated below. It was asked without the words which we have inclosed in brackets, viz.: (4) "The court instructs the jury that if, prior to the time the defendants Simpson and Fulton took possession of the land in controversy, the plaintiff was in possession thereof, and in good faith claiming to own the same, then their verdict will be for the plaintiff [as against defendants Simpson and Fulton]." We think the modification by the court was entirely correct. According to plaintiff's contention, defendants Simpson

and Fulton were in possession, as mere trespassers, upon the prior possession of plaintiff, or of Mr. Forgey, plaintiff's predecessor in title. As to those defendants, the trial court sanctioned a recovery of damages if the jury found they had invaded plaintiff's possession. It was held in Bledsoe v. Simms (1873) 53 Mo. 305 (and it has been held in other cases), that, where no title appears on either side, a prior possession, though short of the statutory bar, will prevail over a subsequent possession which has not ripened into a title, provided the prior possession was under a claim of right, and has not been abandoned. The court gave plaintiff the full benefit of that rule; and, as defendants did not except or appeal, we need not consider whether plaintiff was entitled to have it applied to the facts in evidence. We are only concerned with the question whether the court should have declared the same rule as to defendant Riggs. The latter did not defend upon possession alone, but upon a paper title as well, which the evidence tended to establish. As against that title, mere possession by plaintiff or Mr. Forgey would not furnish a basis of recovery in this action, unless that possession had continued for the requisite period to put the law of limitation into force against the rights of Riggs. The instruction, as refused, did not accurately present that idea. It was so worded as to indicate a basis for plaintiff's recovery against Mr. Riggs on the theory of possession only, without the requisite duration of such possession to carry title. It could not justly have been applied to the defendant Riggs under the evidence. There was no error in denying it as originally asked.

7. A number of subordinate points have been raised, but it does not seem to us necessary to discuss each at length. We think the cause was fairly tried, and that no substantial error against plaintiff has been pointed out in the record before us. The judgment is affirmed.

BLACK, C. J., and BRACE and MACFAR LANE, JJ., concur.

RICHARDS v. PITTS et al. (Supreme Court of Missouri, Division No. 1. Nov. 12, 1894.)

EXECUTORS PURCHASE OF DEVISEE'S INTERESTCANCELLATION OF SALE.

Defendants were the executors of a will devising certain property to plaintiff. After the final settlement, one of the defendants procured plaintiff, who was 63 years old, illiterate, and a nonresident of the state, to assign his interest in said estate for about one-tenth of its value, saying that they needed said assignment to clear the title to the land, because plaintiff was mentioned in the will. Said defendant read the will to plaintiff, but falsely represented that it would be a long time before the estate could be settled, and that he did not know

how much would be due plaintiff. Held, that such transaction was invalid, and that said assignment should be set aside.

Appeal from circuit court, Polk county; W. I. Wallace, Judge.

Bill in equity by Reuben Richards against W. D. Pitts and John Overshiner for the setting aside of certain conveyances. Judgment for defendants, and plaintiff appeals. Reversed.

J. W. Ross and T. G. Rechow, for appellant. A. A. Underwood and John S. Haymes, for respondents.

BLACK, C. J. Reuben Richards brought this suit against William D. Pitts and John Overshiner to set aside two instruments, whereby Reuben Richards transferred all of his interest in his brother's estate to Pitts. The undisputed facts are to the following effect: Maridy Richards, of Polk county, this state, died, testate, on the 25th January, 1885. He left an estate, consisting of 260 acres of land, worth $1,500; a house and lot in the town of Bolivar, worth from $800 to $1,200; and also considerable personal property. He died without issue, but had several brothers and sisters, the plaintiff being one of them. He had raised John Overshiner and Eliza, the wife of William D. Pitts. By his will he devised one-half of his property, real and personal, to his wife, Mary Richards, absolutely; and he gave her the use of the other half during her life. He disposed of the half set apart for his wife for life as follows: "In consideration of and for the reason that John Overshiner and Eliza Pitts, wife of William D. Pitts, have heretofore rendered to myself and my wife valuable services in the way of taking care of us, and assisting us greatly in helping to make and accumulate such property as we have, and believing and desiring that Reuben Richards, my brother, will hereafter help take care of us in our old age, I will and bequeath to the said John Overshiner, Eliza Pitts, and Reuben Richards equally the other half of all my real estate and personal property." John Overshiner and William D. Pitts were the duly-appointed and qualified executors of the will. According to the record before us, they made final settlement of the Richards estate in February, 1887. That settlement shows there was then due the estate $8,364, the one-half of which belonged to the widow, Mary Richards, and she was entitled to the use of the other half during her life. Mary Richards died, testate, the 24th February, 1888. Overshiner and Pitts were the duly-nominated executors of her will, and they qualified and administered upon her estate. It does not appear whether they continued to hold the one-half of the $8,364-that is to say, $4,182-as executors of the will of Maridy Richards, or whether they held it as executors of the will of Mary Richards, but they held it in one or the other of these capacities. On the 26tb

March, 1888, a month only after the death of Mary Richards, the plaintiff executed two instruments, by one of which he conveyed his one-sixth interest in the land to Pitts for the consideration of $100, and by the other he released all of his interest in his brother's estate to Pitts for the consideration of $150. These instruments were executed at El Paso, in the state of Texas, and were procured by Pitts for himself and for Overshiner. These are the instruments which plaintiff seeks to set aside by this suit, and he asks for an accounting also.

Α

The principle of law is of old standing and well established that a trustee cannot deal with the trust estate for his personal profit, and the principle applies to executors and administrators. But there is a vast difference between those cases where one, occupying the position of a trustee, deals with the trust property without the consent of the beneficiary, and those where he deals directly with the beneficiary. In the former class of cases the transactions are voidable, as a matter of law, without any other or further showing; but in the latter class the transactions are not necessarily voidable. trustee may purchase the trust property of the beneficiary, or even accept a benefit from him, but the transaction must be fair and beyond suspicion; and, in general, it devolves upon the trustee to show that the transaction was fair, and that he made to the beneficiary a full disclosure of all the knowledge possessed by him concerning the property. 1 Perry, Trusts (2d Ed.) § 428; 2 Pom. Eq. Jur. § 958. The case in hand is that of an executor purchasing the interest of an adult devisee in the property of the estate, real and personal; and there can be no reason why the transaction should not stand if it was fair, and there was no fraud, concealment, or deception practiced by Pitts; but, if he took advantage of the plaintiff by the concealment of facts which he had acquired as such executor, then the transaction cannot stand. Though not so in terms stated, we infer from the evidence that the plaintiff is, and always has been, an unmarried man. He has resided at El Paso, in the state of Texas, since 1863, with the exception of a few months, in 1884. In the early part of that year he came to this state, intending to live here with his brother, the testator. He soon became dissatisfied, and determined to and did return to El Paso. Before leaving, he said to several persons he could not get along with the old people; that he did not want their money; and that he would go back to his friends. Other evidence shows that the plaintiff was about 63 years of age when he executed the instrument in question, unable to read or write, and evidently a man of little or no business capacity. The plaintiff, by way of a deposition taken about one year before the trial, testified: "Pitts came to my adobe house late one evening. He informed me of the death of my brother.

He said my brother's wife was then Hving with him. He said he had $250 for me, but I must sign some papers to get the money. He said, if I got sick and hard up, to write to him, and he would send me more; that he had charge of the estate, but it had not been wound up, and he did not know how much I would be entitled to. Said there was some money on hand, but he could not tell at that time how much there was. He said he guessed it would take a long time to settle up the estate. I did not know anything about the business, and trusted to him. The next day we went to the county clerk's office, and fixed up some papers. Do not remember what they were. Cannot say whether they were read to me or not. Pitts said he just wanted them to make him safe. Some one wrote my name, and I made my mark. He left that evening." The defendant Pitts testified on the trial as follows: "I told the plaintiff that his brother and his brother's wife were both dead. He asked me what had become of the farm; and I said, 'We still have it.' He said: 'Why don't you sell it, and come to this country, where it is healthy? I said: 'Uncle Rube, we can't get up an abstract and make a chain of title without an assignment from you, as your name is in the will.' He said: 'Bud, I am willing to do anything for you I can. I don't claim anything at all.' I then said to him: 'If you are willing to do that, we will go up to El Paso, and make an assignment of the personal and real property, so we can make a chain of title that will sell better than without it.' The next morning he and I went to El Paso. I had left my overcoat and some things up there. He and I went into my room there, and I read a copy of the will to him. I said to him: 'Uncle Rube, I have made up my mind to leave $250 with you if you make the assignment.' He said: 'I will be very glad for the money, but I don't claim anything at all.' He and I went to the clerk's office, where I got the papers out of my pocket, and I told the clerk my business. The clerk asked Richards if he understood the business, if he understood he was assigning away all his interest in his brother's estate; and Richards said he understood it, that he did not claim anything. The clerk asked me what the personal property amounted to, and I told him I did not know just the amount, but several thousand dollars. I made the consideration $100 for the land, and $150 for the personal property." The testimony of this witness is to the further effect that he had been informed that the plaintiff had forfeited his interest in the estate, because he did not remain with the testator. He says, again, that he got the deed and release so as to enable him to furnish a perfect abstract in case he and Overshiner desired to trade or sell the property. Pitts had the deed and release prepared before he went to Texas, and 'he admits that he got

them signed for Overshiner as well as for himself.

Guided by the principles of law before stated. it is very clear the deed and release in question cannot stand the test. In the first place, the evidence of Mr. Pitts is, in its entire scope, an excuse for, rather than a justification of, the transaction. He says he had been advised that the plaintiff had no interest in the estate of Maridy Richards, because plaintiff did not live with and take care of the testator. According to his evidence, he obtained these instruments for the mere purpose of making the title perfect upon the face of the records, and paid the $250 to plaintiff rather as a matter of charity. Such was the state of affairs presented to the plaintiff to induce him to execute the deed and release. It was an untrue state of affairs, brought forward by Pitts, for there is nothing in the will of Maridy Richards which makes the devise to plaintiff rest upon the condition that plaintiff should remain with and take care of his brother. It is therefore clear that plaintiff executed these instruments under a misconception of his rights; but it will be said Pitts was also misled as to the legal effect of the will. Be this as it may, the fact remains that the plaintiff did not know what his rights were, and there was no fair opportunity afforded him to take advice. Pitts did not even take the copy of the will with him to the clerk's office, but left the same at his lodging place. But there is much more in the case. While there is a direct conflict in the evidence of the two parties in interest as to whether Pitts reported the death of Mary Richards, it is clear Pitts did not give plaintiff a true account of the affairs of the estate. He says the clerk before whom the instruments were acknowledged asked him what the personal property amounted to, and he replied that he did not know, but several thousand dollars. Now, Pitts knew, when making this statement, that there was then on hand and for distribution $4.182 in cash, one-third of which, to wit, $1.394, was then due to the plaintiff. Besides this, we are satisfied Pitts informed the plaintiff it would be a long time before the estate could be settled up, when the truth was the estate had been settled, and Pitts and Overshiner held $1,394 which should have been paid to plaintiff. This money and the one-sixth of the land they obtained under the misrepresentations that the estate could not be settled for a long time, and by concealing the fact that there was then due to the plaintiff $1,394. Such a transaction between the executors and a devisee cannot stand. The law will not permit such a confidential relation to be thus abused.

But it is agreed there was no trust relation existing between the plaintiff and the defendants when the transaction in question was consummated, because the defendants had before that date made final settlement of the Maridy Richards estate. According to the

record before us, they made final settlement of that estate in February, 1887, the settlement showing a balance of $8.364 in their hands. By their inventory of the Mary Richards estate, they charged themselves with personal property amounting to $9.929, the one-half of which, it is therein stated, belonged to the estate of Mary Richards. From the case as presented to us by the record, we are left in doubt whether the defendants still held the $8,364 as executors of the will of Maridy Richards, or as executors of the will of Mary Richards; but it is immaterial in which capacity they held it. In either event they held it in their trust capacity for the benefit of the devisees; and as between them and the plaintiff, one of the devistes, the trust relation did not terminate until they paid the money to the plaintiff, or acquired from him a valid acquittance.

The judgment in this case is reversed, and the cause remanded to the circuit court; and that court is hereby directed to enter up a decree setting aside the deed and release in question, and also the subsequent one from Pitts to Overshiner, and to give judgment for the plaintiff against both defendants for $1,394, less the $250 paid by Pitts, with interest on the balance from the commencement of this suit, at 6 per cent. per annum to date of final judgment. All concur.

GRANT et al. v. LOOKOUT MOUNTAIN CO. et al.

(Supreme Court of Tennessee. Oct. 25, 1894.) COSTS-ACTION BY STOCKHolder-ReimBURSEMENT-LIEN OF ATTORNEY.

1. Where a stockholder of a corporation, on behalf of himself and other stockholders, sues to set aside a fraudulent conveyance by the officers of the corporation of the corporate prop erty, and for its recovery, he is, if successful, entitled to be reimbursed, from the corporate property, the amount of his reasonable attor ney's fees. 2. In such a case, counsel for plaintiff is entitled to a lien on the property recovered for his fees.

Appeal from chancery court, Hamilton county; T. M. McConnell, Chancellor.

Action by M. Grant and others, as stockholders of a corporation, against the Lookout Mountain Company and others. From a decree denying a reference on motion by plaintiffs for an allowance of reasonable attorney's fees, and that they be decreed a lien on the corporate property, they appeal. Reversed.

Cooke, Frazier & Swaney, for appellants. Watkins & Bogle, for appellees.

MCALISTER, J. The single question presented for determination in this cause is whether complainants below are entitled to have counsel fees allowed and declared a lien on the property recovered. The proceedings in which the professional services were rendered were commenced by M. Grant