Riddick, J.,
(after stating the facts.) The contention of counsel for appellant is that when Mrs. Stubbs agreed to purchase and pay for 116 acres of the land and to sign the notes of William Stubbs for the balance due for the remaining 187 acres it was done with the further agreement between herself, the vendor, Main, and William Stubbs that the title bond executed by Main to William Stubbs for the conveyance of the 303 acres purchased by him should be surrendered to Main, and that, if William Stubbs failed to pay the notes at maturity, she should pay them, and that thereupon Main should execute a deed conveying the land to her, and that all interest in or right to purchase the land held by William Stubbs should terminate. They say that, in obedience to this contract, Mrs. Stubbs, after the death of William Stubbs, paid the purchase money notes on which she was surety, and received a deed from Main conveying the land to her, and that she thus became the absolute owner of the land. This contention is based mainly on the testimony of the defendant Mrs. Stubbs. She is not only an interested party, but she is testifying to a matter that happened twenty years before, and where the other party to the contract is dead. At the time she signed the notes of her son for the purchase of this land, she no doubt had confidence in him, and felt that, if she was compelled to pay for the land, he would protect her in some way, and she may have believed that, if she paid for the land, it would belong to her; but, when the whole circumstances are considered, we are of the opinion that the chancellor was justified in attaching little weight to her testimony in reference to the oral contract above referred to and in finding that there was no agreement on the part of William Stubbs to the effect that, if he failed to pay for the land, it should be conveyed to and belong to her on the payments of the notes by her. Having been compelled by the death of her son to pay the notes for the purchase price of the land which she had signed, she no doubt had the right to hold the land for the re-payment of the money advanced, but that did not divest the rights of his heirs in the land. Potts, who was the agent of Main, and through whom the new contract of purchase with William Stubbs was made, testified that he remembered that the title bond was surrendered, and that Mrs. Stubbs became the purchaser of a portion of the land, paying therefor in cash; that she agreed to assist her son, William, to buy the remainder of the land, and signed the purchase money notes for that purpose, but he did not remember that there was any agreement that the land should be conveyed to her if she had to pay for it. On the contrary, he testified that, after the death of her son, she said to him that “rather than lose what had been paid on the land she would take it up for the children.” Counsel for defendant say that she probably referred to her own children, but it seems unreasonable to believe this. The reference was to the children of the son, and tends to show that she knew that these children still had an interest in this land. The statement of herself and Potts, the agent of Main, that at the time the deed was executed by Main to her they thought there was no legal obstacle in the way of such a conveyance amounts to nothing, for it was only their opinion as to the law, and does not show that the facts justified such belief. Besides, if she paid the money and took the deed to secure herself, there was no wrong in it, but she cannot hold the land after the money is paid.
There is no question that William Stubbs purchased this land and executed his notes therefor, which described the land and recited that they were executed for the purchase price of the land, and that his mother went his security, and afterwards paid the balance due on the notes, and received a conveyance of the land. These facts are established by the notes and other evidence beyond controversy, and constitute the only solid basis upon which to rest the decision in this case. Taking these as the facts, it is clear that at his death William Stubbs was in equity the owner of the land. The notes which describe the land and recite that they were given for the purchase money thereof, taken in connection with the undisputed evidence that he was the principal in the notes, that he took possession under his contract of purchase and made valuable improvements on the land, show that he had a contract for the conveyance of the land which a court of equity would enforce. “The moment,” says Lord Hatherly, “that a contract for the sale and purchase of land is entered into, and the relation of vendor and vendee is constituted, the vendor becomes a constructive trustee for the purchaser.” Shaw v. Foster, L. R. 5 H. L. 321 ; Lysaght v. Edwards, L. R. 2 Ch. Div. 499-506. This is founded on the principle that equity treats that as done that ought to be done. By the terms of the contract, the purchase price ought to be paid to the vendor, and the land ought to be conveyed to the vendee; equity therefore regards this as done. The consequences of this doctrine, says Prof. Pomeroy, are carried out. As the vendee holds, the equitable estate, “he may convey or incumber it, may devise it by will; on his death, intestate, it descends to his heirs, and not to his administrators; in this country his wife is.entitled to dower in it; a specific performance is after his death enforced by his heirs; in short, all the incidents of a real ownership belong to it.” 1 Pomeroy on Equity, § 368. In commenting further on this doctrine the learned author says that it is a mistake to suppose that this doctrine does not apply until the purchase price is paid. It applies at once, so soon as a valid contract of sale is made, though, until the purchase money is paid, it is a lien on the equitable estate of the vendee, and by the enforcement of this lien in a court of equity the equitable estate of the vendee may be sold or cut off. Note to § § 368, 1046, 1161, 1260, 1261.
Now, it is clear, as before stated, that William Stubbs had an equitable estate in this land that descended to his heirs. This estate was not lost by the conveyance to Mrs. Stubbs, for she knew all the facts, and took only the right of the vendor to hold the land as security for her debt. Equity therefore will compel her to convey the land upon the payment of the debt and interest. As she has taken possession of the land and collected the rents and profits, it is proper that she should account therefor to the heirs. There is no need to cancel the conveyance from Main to her, for equity can compel her to convey to the heirs or vest the title acquired by her in them so soon as the purchase money is paid.
The next question relates to the interest of these plaintiffs in the land. The chancellor held that William Stubbs had a homestead in the land, that Mrs. Pitts, the wife of William Stubbs, had lost her homestead interest in the land by abandonment, and that Mattie Lynch and Gardie Stubbs were entitled to a homestead in the land until they became of age, and that after-wards Mrs. Pitts, as against them, was entitled to a dower interest therein. In the opinion of a majority of the judges this decision of the chancellor was correct. But the fact that Mrs. Pitts has lost her homestead interest in the land does not vest the right to recover the entire rents thereof in the two children. After the death of a husband owning a homestead, his widow is entitled to the possession thereof; but, if there are minor children, she must share the rents and profits of the homestead with them until they arrive at age, she being in law entitled to half of the rents and the children to one-half.
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Riddick, J.,
(after stating the facts.) The contention of counsel for appellant is that when Mrs. Stubbs agreed to purchase and pay for 116 acres of the land and to sign the notes of William Stubbs for the balance due for the remaining 187 acres it was done with the further agreement between herself, the vendor, Main, and William Stubbs that the title bond executed by Main to William Stubbs for the conveyance of the 303 acres purchased by him should be surrendered to Main, and that, if William Stubbs failed to pay the notes at maturity, she should pay them, and that thereupon Main should execute a deed conveying the land to her, and that all interest in or right to purchase the land held by William Stubbs should terminate. They say that, in obedience to this contract, Mrs. Stubbs, after the death of William Stubbs, paid the purchase money notes on which she was surety, and received a deed from Main conveying the land to her, and that she thus became the absolute owner of the land. This contention is based mainly on the testimony of the defendant Mrs. Stubbs. She is not only an interested party, but she is testifying to a matter that happened twenty years before, and where the other party to the contract is dead. At the time she signed the notes of her son for the purchase of this land, she no doubt had confidence in him, and felt that, if she was compelled to pay for the land, he would protect her in some way, and she may have believed that, if she paid for the land, it would belong to her; but, when the whole circumstances are considered, we are of the opinion that the chancellor was justified in attaching little weight to her testimony in reference to the oral contract above referred to and in finding that there was no agreement on the part of William Stubbs to the effect that, if he failed to pay for the land, it should be conveyed to and belong to her on the payments of the notes by her. Having been compelled by the death of her son to pay the notes for the purchase price of the land which she had signed, she no doubt had the right to hold the land for the re-payment of the money advanced, but that did not divest the rights of his heirs in the land. Potts, who was the agent of Main, and through whom the new contract of purchase with William Stubbs was made, testified that he remembered that the title bond was surrendered, and that Mrs. Stubbs became the purchaser of a portion of the land, paying therefor in cash; that she agreed to assist her son, William, to buy the remainder of the land, and signed the purchase money notes for that purpose, but he did not remember that there was any agreement that the land should be conveyed to her if she had to pay for it. On the contrary, he testified that, after the death of her son, she said to him that “rather than lose what had been paid on the land she would take it up for the children.” Counsel for defendant say that she probably referred to her own children, but it seems unreasonable to believe this. The reference was to the children of the son, and tends to show that she knew that these children still had an interest in this land. The statement of herself and Potts, the agent of Main, that at the time the deed was executed by Main to her they thought there was no legal obstacle in the way of such a conveyance amounts to nothing, for it was only their opinion as to the law, and does not show that the facts justified such belief. Besides, if she paid the money and took the deed to secure herself, there was no wrong in it, but she cannot hold the land after the money is paid.
There is no question that William Stubbs purchased this land and executed his notes therefor, which described the land and recited that they were executed for the purchase price of the land, and that his mother went his security, and afterwards paid the balance due on the notes, and received a conveyance of the land. These facts are established by the notes and other evidence beyond controversy, and constitute the only solid basis upon which to rest the decision in this case. Taking these as the facts, it is clear that at his death William Stubbs was in equity the owner of the land. The notes which describe the land and recite that they were given for the purchase money thereof, taken in connection with the undisputed evidence that he was the principal in the notes, that he took possession under his contract of purchase and made valuable improvements on the land, show that he had a contract for the conveyance of the land which a court of equity would enforce. “The moment,” says Lord Hatherly, “that a contract for the sale and purchase of land is entered into, and the relation of vendor and vendee is constituted, the vendor becomes a constructive trustee for the purchaser.” Shaw v. Foster, L. R. 5 H. L. 321 ; Lysaght v. Edwards, L. R. 2 Ch. Div. 499-506. This is founded on the principle that equity treats that as done that ought to be done. By the terms of the contract, the purchase price ought to be paid to the vendor, and the land ought to be conveyed to the vendee; equity therefore regards this as done. The consequences of this doctrine, says Prof. Pomeroy, are carried out. As the vendee holds, the equitable estate, “he may convey or incumber it, may devise it by will; on his death, intestate, it descends to his heirs, and not to his administrators; in this country his wife is.entitled to dower in it; a specific performance is after his death enforced by his heirs; in short, all the incidents of a real ownership belong to it.” 1 Pomeroy on Equity, § 368. In commenting further on this doctrine the learned author says that it is a mistake to suppose that this doctrine does not apply until the purchase price is paid. It applies at once, so soon as a valid contract of sale is made, though, until the purchase money is paid, it is a lien on the equitable estate of the vendee, and by the enforcement of this lien in a court of equity the equitable estate of the vendee may be sold or cut off. Note to § § 368, 1046, 1161, 1260, 1261.
Now, it is clear, as before stated, that William Stubbs had an equitable estate in this land that descended to his heirs. This estate was not lost by the conveyance to Mrs. Stubbs, for she knew all the facts, and took only the right of the vendor to hold the land as security for her debt. Equity therefore will compel her to convey the land upon the payment of the debt and interest. As she has taken possession of the land and collected the rents and profits, it is proper that she should account therefor to the heirs. There is no need to cancel the conveyance from Main to her, for equity can compel her to convey to the heirs or vest the title acquired by her in them so soon as the purchase money is paid.
The next question relates to the interest of these plaintiffs in the land. The chancellor held that William Stubbs had a homestead in the land, that Mrs. Pitts, the wife of William Stubbs, had lost her homestead interest in the land by abandonment, and that Mattie Lynch and Gardie Stubbs were entitled to a homestead in the land until they became of age, and that after-wards Mrs. Pitts, as against them, was entitled to a dower interest therein. In the opinion of a majority of the judges this decision of the chancellor was correct. But the fact that Mrs. Pitts has lost her homestead interest in the land does not vest the right to recover the entire rents thereof in the two children. After the death of a husband owning a homestead, his widow is entitled to the possession thereof; but, if there are minor children, she must share the rents and profits of the homestead with them until they arrive at age, she being in law entitled to half of the rents and the children to one-half. If the widow abandons or waives her homestead rights by some definite act, as by executing a deed thereto conveying the land to a third party, the right thereto vests in the children. But the mere fact that she has lost the right to recover her portion of the rents and profits through laches or the statute of limitations does not vest the right to recover them in the children until they have recovered possession of the homestead from the adverse holder. In this case the widow never conveyed the land, and the only showing that she had acquired a new homestead is that she and her husband had a home in Conway where they had resided for a year. The only specific act of abandonment shown was that she had for a year previous to the time she testified lived at the home of her husband in Conway. The rights >o£ the minors to 'the entire rents of the homestead could not have accrued before that time. It is true that the right of Mrs. Pitts to recover the rents and profits of the homestead from Mrs. Stubbs is now barred .by laches. But, if Mrs. Stubbs had waived this defense, admitted her liability, and paid oné-half of the rents and profits to Mrs. Pitts, the heirs could not have complained. For they had no right to the rents and profits of the widow’s half until the widow had been guilty of some specific act of abandonment, or until they had recovered possession of the premises against the adverse holder. We are therefore of the opinion that the decree of the court that held that the minors were entitled to call Mrs. Stubbs to account for the full amount of the rents, without regard to whether there had been any specific act of abandonment of her part of the homestead by Mrs. Pitts, was erroneous. The court did not err in charging Mrs. Stubbs with the full value of the rents and profits due from the land as against the improvements and money expended by her in paying for the land, but, after the rents had paid the money paid by her and the value of the improvements, the minors can recover only one-half the rents of the homestead up to the time of the recovery of the land, or until Mrs. Pitts acquired a new home. The other half belonged to their mother, and is barred by statute of limitations.
The findings of the court that Mrs. Stubbs only paid $880 on the purchase price of the land is in our opinion against the weight of evidence. Mrs. Stubbs testified that she furnished her son about $200 or more to pay on this land. This evidence is not contradicted, and it is shown that she had money at that time, while her son was very poor, and told others that he could not pay the debt. Besides, the deed of Main to her recites a consideration of $1,050 paid by her. The payment of the purchase price of this land by Mrs. Stubbs has been the means of saving a valuable piece of property for the heirs, and she deserves to have the full amount paid by her returned with interest, and we think the evidence shows that she paid at least the amount recited in the deed.
Five dollars per acre, the amount of rents charged against Mrs. Stubbs for the use and occupation of the place during the years she controlled the place, excepting the overflow years, seems to us excessive. According to the findings and decree of the court, Mrs. Stubbs took this tract of 187 acres of land in 1886, when there were only fifty acres cleared on it, and practically no other improvements excepting the fence, a small cabin and an old house boat, when very little of the purchase money had been paid, except that paid by her, and so managed it that after twenty years she had put nearly the whole of it in a high state of cultivation, ereoted three or four tenant houses, dug wells, and erected the necessary barns for the same, paid the taxes and repaid herself the money paid for the land, and saved over thirty-five hundred dollars for one of the heirs, nearly as much for the other, and over a hundred for the widow of her son. Besides this she reared, clothed and supported one of the children and the other one most of the time.
If it is true that Mrs. Stubbs has made all of these profits out of a small farm that was subject to occasional overflows, causing the fences to be washed away and requiring the expense of replacing them, she has certainly achieved a phenomenal success as a manager of a small farm, and deserves to be made a public guardian of small estates in that county. But in our opinion this result is another illustration of the fact that it is much easier to figure out profits on paper than to realize them by actual experience. Certainly, one that has been as successful as that should be allowed something for the loss of time, care and attention that she gave this place. The place would not have leased or rented itself or collected the rents, and it seems unjust after she has done this to charge her the full amount of the rent received by her without any allowance for the service she performed. The evidence tends to show that the rental value of this land was, when rented for long periods, $3.50 to $5 an acre, and we are of the opinion that four dollars an acre is as much as should have been charged against her.
It results from the conclusions reached by us that the account must be restated. The judgment is therefore reversed, and cause remanded with an order that the account be restated in accordance with this opinion.