Riddick, J.,
(after stating the facts.) This is an appeal I from a decree denying a petition for restitution of lands sold I under a former decree, which the chancellor held to be erroneous but not void. . It is well settled, when lands are sold under a valid decree and purchased by one not a party to the proceedings who pays the purchase price and receives a deed to the lands, that the purchaser will be protected in his purchase, even though the decree under which the lands were sold be reversed and set aside on appeal. The mere fact that there were errors in the proceedings leading up to the decree is a matter of no moment, so far as the purchase is concerned, if the court had jurisdiction of the parties and the subject-matter and power to make the decree. Nor would the case be different if the purchaser had notice of such errors, for otherwise it would not be safe for any one to purchase at a judicial sale that was liable to be reversed on apepal. Tor on .a reversal it could always be said that by an examination of the record the purchaser could have ascertained the errors. Learned counsel for appellant have discussed the doctrine of innocent purchaser at some length and with much spirit and force, but that doctrine has very little application to this case, for this is not the case of one who purchases from a fraudulent grantor with notice of the fraud, or of one who buys land from one having the record title with notice of an outstanding title. Notice in such a case renders the position of the purchaser no better than that of the grantor. But the purchase here was made at a judicial sale where errors do not affect the validity of the sale, and where notice thereof does not affect the purchaser. It is sufficient for the purchaser at such a sale to know that the court had jurisdiction and power to order the sale. If the court has power under a decree to order the sale, and a purchaser buys at a sale made under the decree, then, if the sale is confirmed by the court, and the purchaser pays the price and receives a deed, it is immaterial, so far as he is concerned, whether there were errors or not, for his title will not be affected by them. Moore v. Woodall, 40 Ark. 42; Boyd v. Roane, 49 Ark. 397; England v. Garner, 90 N. C. 197; Cocks v. Simmons, 57 Miss. 193; Marks v. Cowles, 61 Ala. 304; 1 Black on Judgments, 265.
It follows that the main question to be determined in this case is whether or not the court had the power to make the sale at which McDonald purchased this land. The suit in equity in which the decree for the sale' of the land was made was .brought by certain relatives of J. N. S. Gibson, who claimed to be his only heirs at law, against Sallie Spott Gibson, now Mrs. Rankin, who, then an infant of tender years, was supposed to be the daughter of Gibson, and against Bettie Harwell, who had been the wife of Gibson, but had secured a divorce and married Harwell. The complaint alleged that Sallie Spott Gibson was not the child of Gibson, but the natural child of some man unknown to the plaintiffs, and that neither she nor her mother had any interest in the lands left by Gibson. Plaintiffs prayed that their rights be determined, that the lands be partitioned among them according to their rights, and for all other proper relief. The defendants filed an answer, denying the allegation of the complaint, and asked that it be dismissed. Mrs. Harwell also asked that commissioners be appointed, and that her dower and homestead rights be assigned and set apart for her, and both defendants asked for all such other relief as they were entitled to.
In the first place, the fact that the administrator was in possession of the lands did not in our opinion affect the jurisdiction of the court to decree a partition of the lands of the estate among the heirs on payment of the debts of the estate by them. The administrator had been appointed over two years, the amount of the debts were known, and, upon the heirs paying or offering to pay the debts, the court had the right to partition the land among them, for the holding of the administrator was not adverse to the heirs, and the fact that no one was in possession of the lands holding.adversely to the heirs made it necessary for these claimants to go into a court of equity to have their respective rights and interest determined. Trapnall v. Hill, 31 Ark. 345; Davis v. Whittaker, 38 Ark. 435. As the defendants were also claiming the land, and as neither the plaintiffs nor the defendants were in possession, a court of equity was the proper forum to determine their rights. And if it was found that the land was. owned by both plaintiffs and defendants, then a court of equity, in order to do complete justice and settle all controversies between -the parties arising out of the land, could order a partition thereof between them. The equity courts of this State have the power, independently-of the statute, to make partition of lands, and incidentally to order a sale thereof when a sale is necessary to do justice between the parties. Patton v. Wagner, 19 Ark. 233.
When it is alleged and proved that the best interests of both parties will be subserved by a sale of the land, the court may order a sale without first appointing commissioners to pass upon the necessity of a, sale. The failure to appoint commissioners certainly does not affect the jurisdiction of the court or the validity of the sale. If that was an irregularity, it can not be urged against a judgment on collateral attack, which is the only matter of importance to be considered in this case. Bell v. Green, 38 Ark. 78.
The question as to whether a court of equity has power to order a sale of an infant’s lands for investment or for other causes, when it clearly appears that such a sale would be 'to his benefit, has been much discussed by the courts. Such power was not exercised by the English courts of equity, and many American courts follow the English rule that a court of equity has no power, by ordering the sale of an infant’s land, to convert it into personal property or to make any disposition of the inheritance that will bind the infant.
The English rule is said by some courts to be founded on the wide difference that existed “under the law of England between realty and personal property with respect to their enjoyment and devolution, passing as they did in different lines of succession, and being capable of disposition by will at different ages.” The opinion of quite a number of American courts that these considerations should have little weight in the United States, where the differences between realty and personalty in these respects have been almost wholly obliterated, has led them to reject the English rule, and-to hold that in this country courts of equity have the power to sell or mortgage the lands of infants for their benefit. This jurisdiction is exercised cautiously, and never unless it is clearly made to appear that a sale will be to the decided advantage of the infant.
The cases bearing on this question have been reviewed and the law clearly stated on this point by Mr. Stewart in an extended note to the recent case of Richards v. Ry. Co., 6 Am. & Eng. Dec. in Eq. (1st series), 488. The question was considered by this court in Shumard v. Phillips, 53 Ark. 37, where Chief Justice Cockriuc approved the statement of Chancellor Cooper in Gray v. Barnard, 1 Tenn. Ch.
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Riddick, J.,
(after stating the facts.) This is an appeal I from a decree denying a petition for restitution of lands sold I under a former decree, which the chancellor held to be erroneous but not void. . It is well settled, when lands are sold under a valid decree and purchased by one not a party to the proceedings who pays the purchase price and receives a deed to the lands, that the purchaser will be protected in his purchase, even though the decree under which the lands were sold be reversed and set aside on appeal. The mere fact that there were errors in the proceedings leading up to the decree is a matter of no moment, so far as the purchase is concerned, if the court had jurisdiction of the parties and the subject-matter and power to make the decree. Nor would the case be different if the purchaser had notice of such errors, for otherwise it would not be safe for any one to purchase at a judicial sale that was liable to be reversed on apepal. Tor on .a reversal it could always be said that by an examination of the record the purchaser could have ascertained the errors. Learned counsel for appellant have discussed the doctrine of innocent purchaser at some length and with much spirit and force, but that doctrine has very little application to this case, for this is not the case of one who purchases from a fraudulent grantor with notice of the fraud, or of one who buys land from one having the record title with notice of an outstanding title. Notice in such a case renders the position of the purchaser no better than that of the grantor. But the purchase here was made at a judicial sale where errors do not affect the validity of the sale, and where notice thereof does not affect the purchaser. It is sufficient for the purchaser at such a sale to know that the court had jurisdiction and power to order the sale. If the court has power under a decree to order the sale, and a purchaser buys at a sale made under the decree, then, if the sale is confirmed by the court, and the purchaser pays the price and receives a deed, it is immaterial, so far as he is concerned, whether there were errors or not, for his title will not be affected by them. Moore v. Woodall, 40 Ark. 42; Boyd v. Roane, 49 Ark. 397; England v. Garner, 90 N. C. 197; Cocks v. Simmons, 57 Miss. 193; Marks v. Cowles, 61 Ala. 304; 1 Black on Judgments, 265.
It follows that the main question to be determined in this case is whether or not the court had the power to make the sale at which McDonald purchased this land. The suit in equity in which the decree for the sale' of the land was made was .brought by certain relatives of J. N. S. Gibson, who claimed to be his only heirs at law, against Sallie Spott Gibson, now Mrs. Rankin, who, then an infant of tender years, was supposed to be the daughter of Gibson, and against Bettie Harwell, who had been the wife of Gibson, but had secured a divorce and married Harwell. The complaint alleged that Sallie Spott Gibson was not the child of Gibson, but the natural child of some man unknown to the plaintiffs, and that neither she nor her mother had any interest in the lands left by Gibson. Plaintiffs prayed that their rights be determined, that the lands be partitioned among them according to their rights, and for all other proper relief. The defendants filed an answer, denying the allegation of the complaint, and asked that it be dismissed. Mrs. Harwell also asked that commissioners be appointed, and that her dower and homestead rights be assigned and set apart for her, and both defendants asked for all such other relief as they were entitled to.
In the first place, the fact that the administrator was in possession of the lands did not in our opinion affect the jurisdiction of the court to decree a partition of the lands of the estate among the heirs on payment of the debts of the estate by them. The administrator had been appointed over two years, the amount of the debts were known, and, upon the heirs paying or offering to pay the debts, the court had the right to partition the land among them, for the holding of the administrator was not adverse to the heirs, and the fact that no one was in possession of the lands holding.adversely to the heirs made it necessary for these claimants to go into a court of equity to have their respective rights and interest determined. Trapnall v. Hill, 31 Ark. 345; Davis v. Whittaker, 38 Ark. 435. As the defendants were also claiming the land, and as neither the plaintiffs nor the defendants were in possession, a court of equity was the proper forum to determine their rights. And if it was found that the land was. owned by both plaintiffs and defendants, then a court of equity, in order to do complete justice and settle all controversies between -the parties arising out of the land, could order a partition thereof between them. The equity courts of this State have the power, independently-of the statute, to make partition of lands, and incidentally to order a sale thereof when a sale is necessary to do justice between the parties. Patton v. Wagner, 19 Ark. 233.
When it is alleged and proved that the best interests of both parties will be subserved by a sale of the land, the court may order a sale without first appointing commissioners to pass upon the necessity of a, sale. The failure to appoint commissioners certainly does not affect the jurisdiction of the court or the validity of the sale. If that was an irregularity, it can not be urged against a judgment on collateral attack, which is the only matter of importance to be considered in this case. Bell v. Green, 38 Ark. 78.
The question as to whether a court of equity has power to order a sale of an infant’s lands for investment or for other causes, when it clearly appears that such a sale would be 'to his benefit, has been much discussed by the courts. Such power was not exercised by the English courts of equity, and many American courts follow the English rule that a court of equity has no power, by ordering the sale of an infant’s land, to convert it into personal property or to make any disposition of the inheritance that will bind the infant.
The English rule is said by some courts to be founded on the wide difference that existed “under the law of England between realty and personal property with respect to their enjoyment and devolution, passing as they did in different lines of succession, and being capable of disposition by will at different ages.” The opinion of quite a number of American courts that these considerations should have little weight in the United States, where the differences between realty and personalty in these respects have been almost wholly obliterated, has led them to reject the English rule, and-to hold that in this country courts of equity have the power to sell or mortgage the lands of infants for their benefit. This jurisdiction is exercised cautiously, and never unless it is clearly made to appear that a sale will be to the decided advantage of the infant.
The cases bearing on this question have been reviewed and the law clearly stated on this point by Mr. Stewart in an extended note to the recent case of Richards v. Ry. Co., 6 Am. & Eng. Dec. in Eq. (1st series), 488. The question was considered by this court in Shumard v. Phillips, 53 Ark. 37, where Chief Justice Cockriuc approved the statement of Chancellor Cooper in Gray v. Barnard, 1 Tenn. Ch. 298, to' the effect that the rule was based mainly on the minor’s want of power to convey, and the “fact that the court was unable to supply him with the power or to authorize another to do for him what he could not do for himself.” But he said that “in this State the difficulty of divesting the title had been remedied by a statute — - a vestige of the ancient practice remaining in allowing the infant one year after reaching majority to show cause against a judgment in certain cases.” The reasoning of that case seems to support the contention that in this State the courts of equity-have power to order the sale of an infant’s land, though the court declined to state whether the Constitution of 1874 took away the jurisdiction of equity over the persons and estates of minors, and so left the question undecided.
But we regard it as unnecessary to determine that- question in this case, for it has always been the rule, both in this country and in England, that courts of equity have the power, where the decree is by consent, to order the sale of an infant’s real estate in proceedings for the partition of lands, or when necessary to secure or protect the rights of other parties. Davis v. Turvey, 32 Beav. 554; Hubbard v. Hubbard, 2 Hem. & M. 38; Thorington v. Thorington, 82 Ala. 489; Bent v. Miranda, 8 N. Mex. 78; McGowan v. Lufborrow, 82 Ga. 523; Shaffner v. Briggs, 36 Ind. 55; In re Simmons, 55 Ark. 485.
A judgment of that kind may be entered by the consent of the parties, even though an infant be a party to the proceedings; and where the infant is properly represented, he will be as much bound by such a decree as an adult. Eor an infant is ordinarily bound by acts done in good faith by his solicitor or counsel in the course of a suit to the same extent as a person of full age is bound. As a matter of course, before pronouncing a decree by consent against an infant, -the court should make inquiry and ascertain that the decree will be for the benefit of the infant. But the failure to make inquiry does not affect the jurisdiction or power of the court to render the decree, for it would never do to hold, when a court has jurisdiction of the parties and of the subject-matter, that the mere failure of the judge to properly consider the matter before rendering his judgment invalidated his judgment and rendered it void. Such a rule would provide a new and effective means whereby judgments could be assaulted and overthrown on collateral attack, and finds little or no support in the adjudged cases. For this reason, while courts should, as before stated, always make inquiry before rendering decrees affecting the property of infants, yet, if the court having jurisdiction does without inquiry pronounce a judgment by consent in a case where an infant is a party, the infant is as much bound by the decree, until set aside by some direct proceeding authorized by law, as if there had been the fullest inquiry and an express determination that the decree was for his benefit. Thompson v. Maxwell Land Grant Co., 168 U. S. 451; Tripp v. Gifford, 155 Mass. 108, s. c. 31 Am. St. Rep. 530; Walsh v. Walsh, 116 Mass. 377; Cox v. Lynn, 138 Ill. 195; Gusdofer v. Gundy, 72 Miss. 312; Fletcher, Eq. Plead. & Prac. § 711; 1 Black on Judg. (2 Ed.), 197.
But it is said that the decree is void in this case because the complaint did not allege that the sale of the land was necessary, and did not ask for a partition of the land against the defendant or for a sale of the land. The plaintiffs, it is true, alleged and contended that the defendant had no interest in the land. They alleged that the lands could be partitioned in kind between themselves, but they asked also for all other proper relief. The answer of Mrs. Harwell, one of the defendants, after alleging that the lands were owned by defendant, and that the plaintiffs had no interest therein, asked for an assignment of the homestead and dower; and, as before stated, both of the answers and cross-complaints concluded with a prayer for general relief. Now, we do not regard it as a jurisdictional defect that the complaint alleged that the defendant had no interest in the lands, and asked for no partition between them; for, under the prayer for general relief, when it was determined that the defendant had an interest in the lands, the court had the right to completely dispose of the controversy, and to order a partition of the lands between them. As an incident to that, it had the right to order a sale of the lands, if necessary to make the partition and to do complete justice between the parties. For, under the prayer for general relief, the parties may have special relief other than that prayed for by the bill. Fletcher’s Eq. Plead. & Prac. 734 & 735; 1 Black on Judg. § 197.
“The court,” says Mr. Bliss, “may grant any relief consistent with the case made and embraced within the issue. If the facts put in issue and established by evidence entitled the party to any relief in the power of the court to give, although not that demanded, it is the duty of the court to give it, and its power to do so is not conditional upon the form of the prayer.”Bliss on Code Pleading, § 161.
It is clear, we think, that the pleadings in this case were sufficient to authorize the judgment by consent, for that judgment was within the scope of the case made by the pleadings. The judgment being by consent, the pleadings must be treated as amended so as to sustain the judgment. In other words, as the parties could by consent have amended their pleadings, sc as to ask for a sale of the land, and to show that it was necessary in order to rtiake partition without prejudice to some of the parties, we must treat this as in effect done when they consented to a decree for partition and to a sale of- the land for that purpose. In this collateral attack upon the decree and the sale thereunder we must assume that the parties representing the infant defendant honestly believed that it was to her interest that a decree of that kind should be made, and that the evidence justified this belief. As the court had power to order a sale of the land for partition, such a decree was binding on all parties 'before the court, infants as well as adults, until reversed or set aside on appeal or in some way provided by law.
We see nothing in this case that justifies the assertion that the parties to the suit in which the decree was rendered committed any fraud upon the -court. It was in no sense a fictitious proceeding brought to impose upon the court and secure its judgment by fraudulent methods, but a bona Ude suit between parties claiming interests in land adverse and hostile to each other. The parties were each represented by learned counsel. After the evidence had been taken and was before the court the parties compromised and agreed to a decree settling their rights because it was deemed the best thing to do under the circumstances. There is not, in our opinion, the slightest ground to hold that there was anything fraudulent or dishonest in the matter, or that the judgment was void on that account. Nor do we think that the effect of the former decision of this court, when the consent decree was before the court on appeal, was to hold that such decree was void. On the contrary, the language of the court clearly indicates that the judgment of reversal was on the ground of error, and that the court did not intend to hold that the decree was void.
The testimony shows that when E. B. McDonald purchased the land at the sale under the decree he had an understanding with E. S. McDonald, one of the parties to the litigation, that he was to take a one-third interest therein. But E. S. McDonald afterwards declined to take the land, and L. B. McDonald kept the whole tract. We do not think that this agreement in any way affects the right of E. B. McDonald to be protected in his purchase. He was not a party to the suit, nor did he in any sense purchase from E. S. McDonald, but from the commissioner. He paid a fair price, and comes, ás we think, fully within the rule which protects such purchasers against the effect of subsequent reversals.
Again, if this sale was void, still the action of plaintiff for restitution of the lands against the heirs of E. B. McDonald, the purchaser at the sale, seems to be barred by the five years statute of limitations applicable to judicial sales. This statute provides that actions for the “recovery of land sold at judicial sales shall be brought within five years after the date of sale and not thereafter, saving to minors and persons of unsound mind the period of three years after such disability shall have been removed.” Kirby’s Digest, § 5060. This statute, after the. time for bringing the action has lapsed, protects the purchaser, even though the sale may have been void. Cowling v. Nelson, 76 Ark. 146.
In this case the sale was made in 1889, and confirmed in February, 1890. The statute commenced running in favor of the purchaser at that time, and the five years expired before plaintiff became of age in June, 1899. She had, under the statute, three years to bring the suit from that date, but she did not file the petition for restitution against the heirs of E. B, McDonald until December, 1902, more than twelve years after the confirmation decree and more than three years after she arrived at age. For this reason a majority of us think that she is barred; but, as the case is decided by the other points noticed, we find it unnecessary to go into a full discussion of the question of limitations.
■The case has been ably argued, and a large number of authorities have been presented for our consideration. The value of the property involved and the nature of the questions presented are such as to impress us with the importance of this controversy to the parties, but after due consideration thereof we are convinced that the judgment of the chancellor was in acr cordance with the law, and it is therefore affirmed.