The main question on this appeal relates to the alleged error of the circuit court in permitting the complainants, at the hearing, to amend the prayer of their bill so as to obtain relief not before specifically asked, and which, appellants contend, is inconsistent with the case made by the bill. To make intellingible this and other questions in the cause, it is necessary to state the issues and the general effect of the evidence.
On the twenty-eighth day of March, 1871, John D. Ware executed his title bond to William D. Hardin, reciting the sale to the latter of certain lands in Crittenden county, Arkansas, for the sum of $20,000, one-half of which was this and other questions and the remainder, on the first day of January thereafter, in county scrip or warrants; and providing for a conveyance to the purchaser when the purchase money should be fully paid. Ware died, at this home in Tennessee, on the sixth day of December, 1871. In the same month, the probate court of Crittenden county appointed L. B. Hardin (a brother of the purchaser) to be administrator of Ware; and on the fifteenth of January, 1872, his bond having been on that day filed and approved, letters of administration were directed to be issued. Under date of the twenty-third day of January of the same year, L. B. Hardin, in his capacity as administrator, executed to the purchaser an absolute conveyance of all the right, title, and interest of Ware in the lands. The deed recited the payment by the grantee to the said administrator of $10,000 in Crittenden county scrip and warrants, and that the deed was made in conformity with an order of the probate court.
The General Statutes of Arkansas declare that 'when any testator or intestate shall have entered into any contract for the conveyance of lands and tenements in his life-time, which was not executed and performed during his life, and shall not have given power by will to carry the same into execution, it shall be lawful for the executor or administrator of such testator or intestate, with the approval, in term time, to execute a deed of conveyance of and for such lands, pursuant to the terms of the original contract; such excutor or administrator being satisfied that payment has been made therefor according to the contract, and reciting the fact of such payment to the testator or intestate or to such executor or administrator, as the case may be, which deed may be acknowledged as other deeds, and shall have the same force and effect to pass the title of such testator or intestate to any such lands as if made pursuant to a decree of court.' Act Feb. 21, 1859; Gantt's Dig. 180.
By deed of July 10, 1877, W. D. Hardin conveyed these lands to his wife, and they were in possession, by tenants, when the present suit was instituted, on the twenty-eighth of October, 1881. The complainants are the heirs at law of the vendor and one Boyd, his administrator, the latter having been appointed at the last domicile of the decedent in Tennessee. The defendants were W. D. Hardin and his wife, and their tenants. The bill proceeds upon these grounds: That Ware's obligation of March 28, 1871, was obtained through fraud and imposition practiced by the purchaser; that the latter was at liberty, according to the real agreement between him and Ware, to pay the entire purchase money in county scrip or warrants; that he and his wife were in possession, claiming the lands to be the absolute property of the latter, although no part of the purchase money had been paid, except $5,400 paid to the intestate in county scrip or warrants at their face value; that no such proceedings as are recited in the deed to W. D. Hardin were ever had in the probate court of Crittenden county; that the $10,000 in scrip or warrants, which the deed states was paid by W. D. Hardin, were disposed of at private sale for 15 cents on the dollar of their face value, and the proceeds applied, by collusion between the purchaser and his brother, to a claim which they, acting together, fraudulently procured to be allowed in favor of W. D. Hardin against Ware's estate, when, in fact, no such indebtedness existed; that all the papers relating to the estate of Ware were destroyed by Hardin, while in his custody as clerk of the probate court, for the purpose of concealing his fraudulent scheme to obtain the leands without paying for them; that the deed from Hardin to his wife was without consideration; and that Hardin, after he took possession of the lands, appropriated to his own use all the rents annually accruing therefrom.