Smith et al. vs. Allen. cause docketed, and otherwise failed to prosecute his appeal as required by law. It was, therefore, ordered by the court that the cause be placed on the docket (on the motion of Mary Allen, by her next friend, etc.), and it further appearing to the court that Bella Allen was dead, and that Mary Allen, an infant, was her only surviving heir, and entitled to the whole of her estate, the same not amounting in value to the sum of $300, and that McG. W. J. Bell, her grandfather, was her next friend. etc. The order substituting the infant, by her next friend as plaintiff, and the judgment of affirmance, is in the same, continuous entry, though the order of substitution follows, instead of preceding the judgment of affirmance, as it should have done. It seems that before the motion to substitute and affirm was filed, the justice had lodged in the clerk's office a transcript of the proceedings before him, and the original papers, but they had not been marked filed by the clerk, and the cause had not been docketed, on account of the failure of appellant to pay fees, and prosecute his appeal. The magistrate's certificate of authentication of the transcript bears date 1st of June, 1875, which was more than a year after the appeal was taken. First-It was the duty of the justice to file in the office of the Clerk of the Circuit Court, on or before the first day of the next term, a transcript of the entries made by him in his docket, together with all process and papers relating to the suit (Gantt's Digest, section 3825), and it was incumbent on the appellant to see that this was done, and that the cause was placed on the docket. Here appellant took his appeal 9th of March, 1874, procured a stay of execution by executing an appeal bond, and there he let the matters rest, taking no further steps in the prosecution of his appeal, for more than a year. On such failure to prosecute his appeal, the Circuit Court had the discretion to affirm the judgment of the justice, and there Smith et al. vs. Allen. was no abuse of such discretion in this case. sections 3838-9. Gantt's Digest, Second-The appellant was not entitled to notice of the motion to revive the cause in the name of the representative of the deceased plaintiff, the motion having been made, as it appears in the transcript, within less than a year after her death. Gantt's Digest, sections 4774, 4779. Appellant was bound to be in court, in the prosecution of his appeal, and to take notice of such motion. Noland v. Leech, 10 Ark., 504. Callahan et al. v. Saleski, 29 Ark., 217. Third-Section 7, Gantt's Digest, provides that: "When any man shall die, leaving minor children and no widow, and his estate shall not be above the value of $300, his entire estate shall pass to and invest in his minor children, for their support and education, and the (probate) court shall not be required to appoint an administrator on such estate." In this case a woman, the original plaintiff, died, leaving a minor child and no husband, and her estate was not above the value of $300. By statutory rule of construction, the word man in the above section, includes a woman, and the word children includes a a child. Digest, sections 5616, 5617. The subject matter of the suit in this case being part of the deceased mother's estate, which the court below ascertained to be of less value than $300, her infant child, by its next friend, was properly substituted as plaintiff. Gantt's Digest, sections 4774, 4491. Hampton et al. v. Physick, adm'r., 24 Ark., 561. Judgment affirmed. 31 272 56 494 31 272 61 335 Phelps vs. Jackson, adm'r, et al. PHELPS VS. JACKSON, adm'r, et al. 1. Statute of limitations applicable to judicial sales. A proceeding instituted for the purpose of having a judicial sale of land set aside, and the property re-sold, or a trust established in the plaintiff's favor, and title to one half the land vested in him, on account of the fraudulent conduct of the purchaser, is not a suit for the recovery of the land, or within the provisions of section 4116 of Gantt's Digest, which provides that all actions against the purchaser for lands bought at judicial sale, shall be brought within five years. 2. IMPLIED TRUST. A held two notes of equal amount for the purchase money of land; he transferred one of them to B as collateral security for a debt. A afterwards died, and proceedings to foreclose the vendor's lien was brought in the name of his administrator upon both notes. Under a decree of foreclosure, the land was bought in by the heirs of the decedent, and no money paid: Held, that a trust was created in favor of B as to one half the land. 3. JUDICIAL SALE: Payment, re-sale, etc. Under a decree which directs land to be sold for cash, the purchaser acquires no title until he pays the amount of his bid; and, upon his failure to pay, the land should be re-sold. APPEAL from Drew Circuit Court in Chancery. Hon. T. F. SORRELLS, Circuit Judge. McCain, for appellant. J. A. Jackson, contra. WALKER, J.: The appellant filed his bill in chancery in the Drew Circuit Court against the heirs of William E. Conley, deceased, and James A. Jackson, the administrator of Conley's estate, to set aside a sale of land made to the heirs under a decree of court, or to have half the land purchased by the heirs conveyed to him, as having been purchased by them under an implied trust for the benefit of the plaintiff, as well as for themselves. Several of the defendants, in their answer, reserve the question of the sufficiency of the bill by demurrer; and others set up Phelps vs. Jackson, adm'r, et al. in their answer the statute bar of five years as a defense to the action. We will first dispose of these questions as preliminary to an investigation of the case upon its merits. The bill presents, substantially, the following state of case: William E. Conley, a resident of Drew County, sold a tract of land to John R. Montgomery, and executed to him a bond for title when the purchase money was paid for the land. Montgomery executed his notes, payable in two instalments, for $2,650 each. Conley was indebted to a firm in New Orleans, of which plaintiff was a member (and who afterwards succeeded to all of the rights of the firm), and wished also to procure from the firm additional supplies for his plantation, and for the purpose of securing them from loss for the debt contracted, and for additional advancements, endorsed one of the notes given to him by Montgomery for $2,650, and delivered it to the firm as a collateral security. That the debt due by Conley to the firm at the time the note was so endorsed greatly exceeded the amount of the note, and still remains wholly unpaid. That Conley died in Texas, leaving the defendants his heirs, one of them, William E. Conley, Jr., administrator upon the estate in Texas. William C. Arnett, who married one of Conley's daughters, was a practicing attorney in Drew County, was the confidential adviser of the heirs, and had them to place the other note for $2,650 (which was held by Conley at the time of his death) in his hands. Arnett wrote to plaintiff that he was about bringing suit on this note, and to send the note in plaintiff's hands to be sued upon also ; plaintiff sent the note to Arnett, to be collected for him; after receiving the note, that Arnett wrote to plaintiff that, in order to save his lien upon the land, it was necessary to bring the suit Vol. XXXI.-18. Phelps vs. Jackson, adm'r, et al. in the name of the administrator of Conley's estate; that such statement was false, but that he was ignorant of the laws of Arkansas, and, confiding in the knowledge and integrity of Arnett, he suffered him to bring suit in the name of the administrator, against Montgomery to enforce the vendor's lien upon the land, for the payment of which the note was given. That Arnett was interested in the estate, having married one of the heirs, and combined and confederated with the other heirs. (the defendants) to defraud plaintiff. That a decree was rendered against Montgomery for the amount due on both notes in favor of William E. Conley, Jr., the administrator of the estate; a lien was declared upon the land, a commissioner appointed to sell, and the land was bid off at the price of $2,500 by Arnett, for William E. Conley, Jr. (the administrator), for the benefit of the heirs of the intestate; that no money was paid for the land; that the sale was confirmed by the court, and the deed approved. A copy of the decree, and the proceedings under it, is filed as an exhibit. That the whole matter was managed and controled by Arnett, with the intent to defraud the plaintiff out of his note of $2,650; that all of the defendants had notice of the fraudulent conduct of Arnett, and approved the same; that plaintiff was kept in ignorance of these fraudulent transactions. until long after they had been consummated. That immediately after their purchase the heirs took possession of the lands; that defendant Jackson was soon after appointed administrator of Conley's estate in Arkansas, and is also the agent of the heirs, and, as such, or as administrator, has the control of said lands. Plaintiff is not advised in what capacity the lands are held by Jackson, and requires that he should disclose the capacity in which the lands are held, in his answer. That the rents and profits of the land, whilst so held by Jackson, were of great value; that an account should be taken of |