branch of the government." Our own legislature is no longer subject to such criticism, for the act of 1893 forbids such preferences by insolvent corporations, and this opinion, so far as it deals with the question of preferences by such corporations, is only declaratory of what the law was before the passage of that act.

583 The decree of the chancellor is therefore reversed, and the case remanded, with an order to distribute the proceeds of the assets of the dry goods company in accordance with the priorities named in the assignment.

Mr. Justice BATTLE dissented.

CORPORATIONS-POWER TO MAKE ASSIGNMENTS FOR THE BENEFIT OF CREDITORS.-An insolvent corporation can make a general assignment to an assignee in trust for the benefit of its creditors: Vanderpoel v. Gorman, 140 N. Y. 563; 37 Am. St. Rep. 601, and note.

CORPORATIONS-INSOLVENCY-RIGHT TO MAKE PREFERENCES.-An insolvent corporation may prefer one creditor to another: Warfield v. Marshall County Canning Co., 72 Iowa, 666; 2 Am. St. Rep. 263, and note; Rollins v. Shaver Wagon etc. Co., 80 Iowa, 380; 20 Am. St. Rep. 427, and note. Contra, see Rouse v. Merchants' Nat. Bank, 46 Ohio St. 493; 15 Am. St. Rep. 644, and note.

CORPORATIONS-INSOLVENCY-Right to Prefer DIRECTORS.-The directors of an insolvent corporation cannot secure themselves a preference: Hill v. Pioneer Lumber Co., 113 N. C. 173; 37 Am. St. Rep. 621, and note. Sce, also, the extended notes to Beach v. Miller, 17 Am. St. Rep. 298, and Garrett v. Burlington Plow Co., 59 Am. Rep. 466.

CORPORATIONS INSOLVENCY.-Assets of an insolvent corporation are not a trust fund, and creditors may secure preferences therein by obtaining liens by judgment or otherwise: Sweeney v. Grape Sugar Co., 30 W. Va. 443; 8 Am. St. Rep. 88.

WILSON V. HUNTER.

[59 ARKANSAS, 626.]

ADVERSE POSSESSION-MISTAKE AS TO BOUNDARY.-An adjoining owner who, by mistake, incloses or builds upon the land of his neighbor, intending to claim adversely to the real or true boundary only, does not thereby acquire a possession adverse or hostile to the true owner; but if he takes possession of the land under the belief and claim that it is his, he acquires an adverse possession, even though the claim of title is the result of a mistake as to the boundary line. ADVERSE POSSESSION-MISTAKE AS TO BOUNDARY-INTENT.-The nature of the possession of an adjoining owner who incloses or builds upon the land of his neighbor depends upon the intent with which such possession is taken and held. To bar an action for the recovery of the land

so held the possession must be actual, open, continuous, hostile, exclusive, and accompanied by an intent to hold adversely to, and not in conformity with, the rights of the true owner, and must continue for the full period prescribed by the statute of limitations.

G. Sibley, for the appellant.

627 BATTLE, J. This is an action of ejectment for the recovery of a small part of lot 11 in block 22, in the town of Forrest City, the width of which is twenty inches. The defendant owns the adjoining lot. One of the grantors, under whom she holds it, built a house on it, and in building extended it over on lot 11 about twenty inches. There is no evidence that he, the builder of the house, or any one claiming under him, ever held any written evidence of title to lot 11 or any part of it. Plaintiff says he built the house on the twenty inches through mistake, and with no intention of claiming or holding it. The defendant, on the other hand, says that she is entitled to, and does hold, it by virtue of adverse possession thereof held by her and her grantors for the statutory period. The documentary evidence read at the trial shows that the title was in the plaintiff and his grantors. Evidence was also adduced which tended to prove the claim of the defendant by adverse possession. The court instructed the jury that if they found from the evidence that the defendant and the grantors under whom she claims held open, notorious, and adverse possession of the land in controversy for seven years before the commencement of this action, the plaintiff could not recover, and to find for the defendant. The jury found for the defendant, and the plaintiff appealed.

The only question of law in the case is, What possession was necessary to enable the appellee to hold the land in controversy? We shall not, in answer to this question, attempt to review the numerous cases in which 628 courts have decided similar questions, but shall state our own views, and cite some of the cases sustaining them.

Where land belonging to one of two coterminous proprie tors is inclosed or built upon by the other the intention with which the possession was taken and held is important in determining what rights, if any, were thereby acquired. No right or title can be gained against the owner by mere possession. To bar an action for the recovery of the land so held the possession must be actual, open, continuous, hostile, exclusive, and be accompanied by an intent to hold adversely

and "in derogation of," and not in "conformity with," the rights of the true owner, and must continue for the full period prescribed by the statute of limitations. There must be an intention to claim title. If one of two adjacent owners inclose or build upon his neighbor's land, "through mere inadvertence or ignorance of the location of the real line, or for purposes of convenience, and with no intention to claim such extended area," as said by the court in Alexander v. Wheeler, 69 Ala. 340, "but intending to claim adversely only to the real or true boundary line, wherever it might be, such possession would not be adverse or hostile to the true owner." But it would be, if he inclosed, or built upon and held, the land under the belief and claim that it was his own, even though the claim of title was the result of a mistake as to the boundaries of his own land. "In such a case," as said in Alexander v. Wheeler, 69 Ala. 340, "there is a clear intention to claim" the land occupied or inclosed, "and the possession does not originate in an admitted possibility of mistake": Brown v. Cockerell, 33 Ala. 45; Alexander v. Wheeler, 69 Ala. 340; Abbott v. Abbott, 51 Me. 584; Hitchings v. Morrison, 72 Me. 333; Ricker v. Hibbard, 73 Me. 105; Ayers v. Reidel, 84 Wis. 276; Hamilton v. West, 63 Mo. 93; 629 Walbrunn v. Ballen, 68 Mo. 164; Bunce v. Bidwell, 43 Mich. 546.

In the case at bar there was evidence adduced at the trial which tended to show an intention to hold the land in controversy adversely, and that the possession of the appellee was in other respects sufficient to bar the appellant from recovering the land.

Judgment affirmed.

ADVERSE POSSESSION-MISTAKE AS TO BOUNDARY-INTENTION.-In cases of mistake as to the true boundary line between adjoining lands the real test as to whether or not title is acquired by a holding for the period of the statute of limitations is the intention of the party holding beyond the true line: Watrous v. Morrison, 33 Fla. 261; 39 Am. St. Rep. 139, and note, with the cases collected.

AM. ST. REP., VOL. XLIII—5

▲ HOMESTEAD EXEMPTION PROTECTS THE LAND, and not any particular claim of title to it.

HOMESTEAD CLAIMANT DOES NOT TRANSFER HIS RIGHT BY ASSIGNING HIS CONTRACT OF PURCHASE. -If a husband in possession of land, after filing a declaration of homestead thereon, enters into a contract for its purchase from the owner, his assignment of the contract to secure borrowed purchase money does not create a lien upon the land, or convey to the lender either the contract right or the equitable title, although the declaration is filed before the purchase is made.

HOMESTEAD POSSESSION.-One having possession of land is owner as to all the world except the holder of the legal title, and is entitled to the benefit of the Homestead Act.

APPEAL from a judgment and from an order denying a new trial.

John C. Deuel, for the appellant.

George A. Nourse, for the respondent.

16 TEMPLE, C. This is an action to quiet title. Plaintiff avers that she is the widow of Jesse L. Perry, deceased; that decedent died January, 1891, leaving him surviving plaintiff, his widow, and eight children; that letters of administration were duly issued to plaintiff, who qualified and administered the estate. Said Perry, in his lifetime, to wit, June 23, 1890, purchased from the Southern Pacific Railroad Company the tract of land in controversy, and said company, for a valuable consideration paid to it, agreed to make to said Perry, his heirs or assigns, when the deferred payments

should be made, a good and sufficient deed for the land; that the land was purchased with community funds; that said Perry 17 was then residing upon the land with his family, and on the eleventh day of December made and filed for record his declaration of homestead in due form; that thereafter, in the estate of said Perry, the same was duly set apart to plaintiff for a homestead; that the court did also find that the total value of said estate was less than fifteen hundred dollars, and thereupon set over to plaintiff all of the estate of said Perry for the support of herself and her minor children; that defendant claims title to the property, but without right.

Defendant answered, denying the allegations of the complaint, and for a separate defense averred that Jesse L. Perry, on the ninth day of December, 1890, being indebted to defendant, made, executed, and delivered to him his promissory note for two hundred and eleven dollars and twenty-one cents with interest, and, in case suit was instituted to collect the same, for attorneys' fees; that the said sum of two hundred and eleven dollars and twenty-one cents was part of the purchase money paid by said Perry for the said land, and that at the time of its execution said Perry assigned, transferred, and delivered to defendant all his interest in said land and the contract of purchase to have and to hold as security for the payment of the note; that no part of principal or interest of said note has been paid.

The case was tried without a jury, and the court found that the probate proceedings were in accordance with the allegations of the complaint.

The purchase was not made with community funds, but at the time of the purchase said Perry was married, and was residing on the premises with his family, and had filed a declaration of homestead thereon.

The court, in the probate proceedings, did set over to plaintiff all the right, title, and interest, claim and demand to said homestead which said Jesse L. Perry had at the time of his death, and had acquired by said purchase. And also found that the whole value of the estate of said Jesse L. Perry did not exceed fifteen hundred dollars.

But the plaintiff did not by any decree become entitled to the premises in suit or acquire any muniment of title thereto or to said contract of purchase.

That Jesse L. Perry executed the note described in the