deceased intestate have paid the debts of the estate and sue to enforce liability in favor of the estate. The statute giving the right of the heirs to maintain an action under those circumstances is expressly limited to cases where "all persons interested as distributees of the estate of such intestate are of full age." Kirby's Digest, $15. The statute is exclusive, and an action can only be maintained when the distributees are of full age. Chisholm v. Crye, 83 Ark. 495.

The statutes of this State provide that the compensation of an attorney for his services shall be "governed by agreement, express or implied, which is not restrained by law;" that from the commencement of the action or proceedings the attorney has a lien upon his client's cause of action which attaches to the judgment or final order in his client's favor, and that the court "before which said action was instituted, or in which said actoin may be pending at the time of said settlement, compromise or verdict *** shall determine and enforce the lien created by this act." Arkansas Act, May 31, 1909, page 892.

(1-2) In May v. Ausley, 103 Ark. 306, it was decided that a lien created under the statute just referred to must be enforced in the trial court and that this court has no jurisdiction to entertain a petition for the enforcement of such lien. We are of the opinion that this statute has no application to suits by an administrator for the benefit of an estate of the decedent, for to give it that effect would constitute an invasion of the exclusive jurisdiction vested in probate courts by the Constitution. An amount paid to an attorney for conducting litigation for the benefit of an estate is a part of the expenses of administration, and payment of the amount is a distribution of a part of the assets of the estate. It is necessarily a part of the jurisdiction of the probate court which is exclusive over that subject, and no other court can invade that jurisdiction. Hankins v. Layne, 48 Ark. 544; Ferguson v. Carr, 85 Ark. 246; Coppedge v. Weaver, 90 Ark. 444.

(3) The statute does not authorize an administrator, without the consent of the probate court, to enter into a contract so as to bind the estate, and a contract made by an administrator constitutes his own undertaking for which he alone is responsible, although it is within the province of the probate court to make an allowance to the administrator as a part of the expenses of administration. Reynolds, Admr., v. Canal & Banking Co., 30 Ark. 520; Tucker v. Grace, 61 Ark. 410.

In Tucker v. Grace, supra, Judge RIDDICK, speaking for the court, said: "An administrator has no power to enlarge, by his contract, the liability of the estate that he represents. Whether he contracts as an administrator or not, it is his own undertaking, and not that of the decedent, and he incurs a personal liability. An attorney employed by the administrator of an estate has no claim against the estate, although his services may have inured to the benefit of the estate. He must look for compensation to the administrator who employed him."

(4-5) The doctrine of the case last cited is, we think, decisive of the case at bar, and the circuit court was correct in holding that it had no jurisdiction to adjudicate the amount payable to the attorney and to declare a lien on the amount recovered from the defendants in the original action. The funds recovered in that action and paid over to the clerk belong to the estate of the decedent and can only be distributed by the probate court. The judgment is, therefore, affirmed.

1.

DENNIS V. LONG.

Opinion delivered April 9, 1917.

CANCELLATION OF INSTRUMENTS FAILURE OF TITLE.-Appellant purchased land with covenants of warranty from appellee, and finding that appellee held under a will, which appellant believed limited the title purchased, brought an action to rescind the purchase. Held, the action was such that equity would take cognizance thereof, and that a demurrer thereto was improperly sustained.

2.

WILLS CONSTRUCTION-EQUITY. - Equity will not entertain a bill brought solely to construe a will.

3.

COVENANTS OF WARRANTY-ACTION ON. - An action will not lie for breach of covenant of warranty until eviction.

4.

RESCISSION OF CONTRACTS-FAILURE OF TITLE TO LAND. - To entitle a vendee of land to rescind the purchase for failure of title under a covenant of warranty, he must be deprived substantially of the benefits of his purchase, and rescission will not be decreed for a partial failure which can be compensated in damages.

Appeal from St. Francis Chancery Court; Edward

D. Robertson, Chancellor; reversed.

Davies & Davies, for appellant.

1. The court erred in sustaining the demurrer to the complaint. A clear case for equitable relief was stated. 121 Ark. 482. Where both parties are under a mistake as to the vendor's title, which was supposed to be perfect, but proves void, a court of equity will grant relief. 46 Ark. 337, 349.

2. The complaint stated a good cause of action for equitable relief. The title should have been quieted, or the contract rescinded and plaintiff placed in statu quo, with an accounting for rents and profits, improvements and taxes. 121 Ark. 482; 37 Id. 286; 87 Id. 206; 97 Id. 588.

Mann & Mann, for appellees.

1. The demurrer was properly sustained. 88 Ark. 1; 3 Pom. Eq. (3 ed.), § 1156.

2. There was no eviction under paramount title. 65 Ark. 495; 17 L. R. A. (N. S.) 1181, and notes. No breach of warranty is alleged nor that the possession of plaintiff is threatened. 121 Ark. 482, is not a case in point. No cause of action is stated.

HUMPHREYS, J. Appellant, James W. Dennis, brought suit in the St. Francis County Chancery Court against E. A. Long and E. A. Long, Jr., for the purpose of cancelling a deed executed by E. A. Long, Sr., on the 6th day of July, 1903, to him for lots 5 and 6 in block 27, in the original town site of Forrest City, Arkansas, and for the purpose of obtaining a judgment against said Long for $1,700, the consideration paid by him to said Long for the real estate; and for the further purpose of obtaining a construction of the will by which Long obtained title to said real estate.

Appellant alleged that he was the owner of the real estate under deed of warranty from E. A. Long, Sr., and had been in possession thereof since the date of purchase; that at the time he purchased the land, E. A. Long represented that he was the sole owner in fee simple of the land and was willing and did warrant the title to same, but that he was now claiming that he only owned a life estate therein, and that E. A. Long, Jr., was claiming to own the reversionary interest therein, he being the only child of E. A. Long, Sr. Appellant offered to deed the property back to Long and to account for rents upon payment for improvements and repayment of the purchase money with interest. The bill also contained a prayer to have his title quieted as against E. A. Long, Sr., and E. A. Long, Jr., in case the court should hold under the will and deed that he obtained an indefeasible fee simple title to the real estate.

A general demurrer was filed to this complaint on the ground that it did not state facts sufficient to constitute a cause of action against the appellees, or either of them.

The demurrer was sustained, and from the decree dismissing his bill appellant has appealed to this court.

Appellee insists that the bill is for the sole purpose of obtaining the construction of a will disposing of legal estates only, and which makes no attempt to create any trust relations with respect to the real estate in question. If this were the only purpose of the bill, the position of learned counsel for appellees would be sound, for it was said by Mr. Chief Justice HILL, in the case of Frank v. Frank, 88 Ark. 1, involving a question similar to the one involved here, that "in view of these authorities, and many more which may be found cited by the text writers and reviewed in the cases mentioned, it was unquestionably the duty of the chancery court to refuse to entertain the bill; and, for the error in entertaining it and rendering a decree construing the will, the decree is reversed, and the cause remanded with instructions to dismiss the bill. * * *,,

The sole purpose of this bill, however, is not to obtain a construction of the will. The gist of the bill is for the purpose of rescinding the contract of sale and purchase and for the cancellation of the deed.

The demurrer presents the further question of whether there are sufficient allegations in the bill to constitute a cause of action for rescission.

The main allegation in the complaint upon which appellant hinges his right to a rescission is as follows: "Plaintiff further alleges that at the time he purchased the said land of the defendant, E. A. Long, Sr., the said E. A. Long represented that he was the sole owner in fee simple of the land and was willing and did warrant the title to same, but plaintiff says that if said Long did not have such a title that the plaintiff was defrauded, or at least there was a breach of warranty of title if the defendant, E. A. Long, did not have a good title to said lands in fee simple. Plaintiff says that owing to the fact of the claim of the defendant, E. A. Long, Sr., that he had only a life estate, and the claim also made by the other defendant that he is the owner of the reversion, that the title of the plaintiff is clouded and he is unable to sell the land for any price owing to the uncertainty of his title."

This allegation does not meet the strict requirement of allegations necessary to set aside conveyances of real estate on the ground of fraud. The allegation, however, taken in connection with the allegations pertaining to the will and the relations of the parties, is a sufficient allegation charging that E. A. Long, Sr., or both E. A. Long, Sr., and the appellant, James R. Dennis, were mistaken as to the character of title Long obtained under the