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TERM, 1870.]

Trulock, et al. v. Taylor, adm'r.

cases, 321. See also, 3 Wheat. 221; 2 Wend. 109; Angel on Lim. sec. 327; 7 Wallace, 386.

5. The second suit was not a continuation of the former one. 8 Cranch, 84; 22 Texas, 93.

Bell & Carlton, for appellee.

The ruling of the court requiring appellant to elect between 1, 3 and 4 pleas, was right. Davis v. Calvert, 17 Ark. 85; Spencer v. McDonald, 22 Ark. 466; Sumpter v. Tucker, 14 Ark. 186. Plaintiff had a right to demur after motion to elect was disposed of. Davis v. Calvert, 17 Ark. 85.

The propositions of law asked by defendants, were clearly erroneous. As to the first, see Thorington v. Smith & Harly 8 Wallace; Hawkins v. Filkins, 24 Ark. 288. The second was based upon the idea that time runs against the government.

The third proposition is, that defendant's equitable title, based upon a pre-emption float, that had never been confirmed by the United States, will prevail in this action of ejectment over the plaintiff's legal title. See Campbell v. Garvin, 5 Ark; Hooper v. Scheimer, 23 Howard, 249. We submit there was no error in the ruling of the court below.

WARWICK, Special J.

At the May term, 1862, of the circuit court of Jefferson county, Creed Taylor, administrator of the estate of Solon B. Jones, deceased, brought action of ejectment against Amanda Trulock, et al., to recover possession of eighty acres of land in Jefferson county. Summons was issued and the defendants served, but no other proceedings appear to have been had in this case.

At the May term, 1866, said Creed Taylor, administrator, etc., instituted a new suit, to recover possession of said land, against Amanda Trulock, et al., alleging in the declaration that Solon B. Jones, his intestate, was, on the first day of Jan

Trulock, et al. o. Taylor, adm'r.

[DECEMBER

uary, 1861, in possession of the lands sought to be recovered, and that, by virtue of such possession, he, Creed Taylor, as administrator, became entitled to the possession of said premises on the first day of January, 1866, and that afterwards, to wit: on the first day of February, 1866, Amanda Trulock, et al., entered, etc.

At the fall term, 1866, on motion of Taylor, the first suit was dismissed. At the fall term, 1867, the appellants filed four pleas: First. Not guilty. Second. Statute of limitations. Third. Possession since the 27th April 1836, under right and title derived from the United States, by virtue of an entry and purchase thereof, on that day made, of the register and receiver of the United States district land office, located at Little Rock, Arkansas, and authorized by law so to sell the same, and so continuously have been in such actual, peaceable, uninterrupted, adverse possession and occupation to the present time. Fourth. Possession under Barraque, (who entered) and assignees, as in third plea. That appellee claims title thereto, and right of possession, by virtue of a purchase made by his intestate, Solon B. Jones, in the year 1856, of the State of Arkansas, claiming the same under an "Act (of Congress) to enable the State of Arkansas, and other States, to reclaim the swamp lands within their limits;" approved September 28, A. D. 1850; that the land in controversy was not, at the time of the passage of the act of Congress, and has not been since, swamp or overflowed land, and that the selection and confirmation thereof, as a part of the grant inuring to the State of Arkansas, was and is a mistake, and a fraud upon said act.

On motion of the appellee, the appellants were required, by the court, to elect between their first and fourth pleas, and they elected to stand upon the fourth.

The appellee then demurred to the fourth plea, which demurrer was sustained by the court. Whereupon the appellants moved the court for leave to reinstate their first plea, which motion was overruled by the court.

At the May term, 1869, this cause was submitted to the

TERM, 1870.]

Trulock, et al. v. Taylor, adm'r.

court, sitting as a jury, on the following written agreed state

ment:

"For the trial and determination of the issues joined in this cause, and now submitted to the court as a jury, and for the purpose of such trial, the said parties, by their respective attorneys, agree that the facts are as follows: The tract of land described in the delaration was located with an eighty acre pre-emption float, under the act of Congress of 29th of May, 1830, by Antoine Barraque, at the United States land office, at Little Rock, on the 27th of April, 1836, and the purchase money thereof ($100) paid by him to the receiver of said land office, but no patent has ever been issued on said entry.

"On the 12th day of December, 1843, said Barraque and wife made a deed of trust, of and upon said land, to Frederick Notrebe and William B. Wait, to secure the payment of certain debts owing by him.

"On the 21st day of February, 1845, said trustees, Notrebe and Wait, sold said land, under and in pursuance of said deed. of trust, when the same was purchased by James H. Trulock, the husband of said Amanda, father of said other defendants, and conveyed to him, by deed of said trustees, and he entered into possession thereupon, and cleared the same, and it has ever since then been in cultivation; and under and by virtue of such purchase, at said trustees' sale, said tract of land has been in possession of the said James H. Trulock, and of the said defendants, succeeding and claiming under him, ever since the 21st day of February, 1845, and down to the present time; and this paragraph includes the fact that said defendants were in possession of said land at the time of the institution of this suit, and of any former suit for said land So far, such fact may be relied on by said plaintiff.

"Said Antoine Barraque and James H. Trulock are both dead, and both died in or prior to the year 1848.

"Ever since said James H. Trulock purchased said land at said trustees' sale, he and said defendants, claiming under him, have been in the actual possession of said land, openly and no

Taylor, adm’r.

Trulock, et al. v.

[DECEMBER toriously claiming the same as owners, and using and culti vating the same.

"Said tract of land has never been overflowed, so far as known to any person now living, and was not at the time of the passage of the act of Congress of the United States en titled 'An act to enable the State of Arkansas, and other States, to reclaim the swamp lands within their limits,' approved September 28, 1850, and has not since been swamp or overflowed land, or in any way made unfit thereby for cultivation.

"Said tract of land was selected, by the agents of the State of Arkansas, as part of the swamp lands in said State, under and by virtue of said act of Congress, and on the 9th day of August, 1855, the intestate, Solon B. Jones, entered and purchased the same at the State swamp land office, at Pine Bluff.

"Such selection was confirmed by the commissioner of the general land office, at Washington City, and the same, along with other lands so selected, were patented to said State; and said tract of land was conveyed by the Governor of said State, pursuant to such entry, to Solon B. Jones, by deed, on and bearing date January 14, 1858.

"On the 10th day of February, 1862, said plaintiff instituted an action of ejectment for said lands against the defendants thereto. The declaration and writ in that suit, on file in the office of the clerk of this court, and indorsements thereon, as the same appears of record, are here referred to and made part hereof, the same as if here inserted at full length.

"On the 19th of March, 1866, said plaintiff, on account of the supposed loss of said papers, instituted this suit, and on the 3d day of December, 1866, dismissed the said former suit.

"And upon the foregoing facts this case is submitted to the court, sitting as a jury, upon the issues joined herein, with leave to either party to except to any rulings of the court, upon any propositions of law that may be moved by either as applicable to this case, and take a bill of exceptions in respect thereof." Signed by attorneys for both parties.

TERM, 1870.]

Trulock, et al. v. Taylor, adm'r.

The court below gave judgment of possession to the appellee, Creed Taylor, administrator, etc., and damages against the appellants, Amanda Trulock, et al., in the sum of $2,690, from which they appeal.

The Code of Practice for this State went into and took effect on the first day of January, 1869, by its own provisions, and has been in full force and effect from that date, so far as it gave or created any new or substantial right. The act of the Legislature, approved April 12, 1869, entitled, "An act to legalize the practice and proceedings of the courts of this State from January 1, to June 1, 1869," in no manner postponed the time of its taking effect, but merely extended to the pleader the privilege or option to plead under the former practice, or under the Code, until the first of June, 1869, after which time all pleadings were required to conform to the Code.

Under the Code of Practice, a defendant may, in his answer, in action to recover the possession of land, set up and rely upon an equitable defense. See section 116, Code of Civil Practice. This was a substantial right enjoyed by the defendants in the court below, at the time of the trial of this cause, viz: at the May term, 1869, of the Jefferson circuit court. Where an equitable defense is set up to a proceeding at law, either party may have the case transferred to the equity side of the docket; but if this be not done, the issue made on such defense is not to be disregarded, and such issue must be disposed. of by the court according to the principles involved, either of law or equity. Petty v. Maher, et al., 15 B. Mon 604. The right of a defendant to plead an equitable title, in an action on a United States land patent, in a State court, when permitted by the law of the State, was definitely settled in the Supreme Court of the United States, in the case of O'Brien v. Perry, 1 Black, (U. S.,) 132. This was a case similar to the one now under consideration, in which the right was maintained by the Supreme Court of Missouri, and an appeal was affirmed.

In this case the appellee claims title and possession through

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