Gaither et al. vs. Lawson. Such entry invested him with an inchoate equitable title to the land, and, upon faithful observance of the provisions of the law in regard to settlement and cultivation for the continuous period of five years, and upon proper proof, etc., before the land officers, he would be entitled to patent a crtificate, upon which a patent would issue, vesting in him a complete legal title. But upon making such entry, he certainly would be entitled to the possession of the land, in order to make the settlement and cultivation required of him by the act of Congress to complete his right to a patent. Upon such title, though but an inchoate equitable title (subject to be defeated by non-compliance with provisions of the act of Congress), and upon such right of possession, we think appellee could maintain ejectment, under the liberal provisionsof our statute, for possession of the land against one having no better title or right of possession. It seems that, at the time appellee made his entry, appellants had a mill on one of the tracts embraced in his entry. Under what right, or color of right, they entered upon this tract and erected the mill, they did not show on the trial. For anything appearing to the contrary in this case, they were mere trespassers. Second-The first paragraph of the answer was an attempt to plead matter in abatement of the suit, under secs. 2267, 5216, Gantt's Digest. The plea should have alleged that the land was subject to assessment, that it was assessed for the taxes of some particular year or years, sold for non-payment of taxes, etc., and purchased by appellants, etc. Whatever else the statute may mean, it certainly does not mean, that where public lands are assessed and sold for taxes, which are not subject to taxation at all, and afterwards entered, Jefferson vs. Hale, adm'r. the person entering them must tender to the tax sale purchaser the money paid by him, etc., and the value of the improvements, etc., before he can maintain an action for the lands. Haney v. Cole et al., 28 Ark., 303. Judgment affirmed. JEFFERSON V. HALE, adm'r. 1. PLEADING: Allegations of value in trover. In an action of trover, the failure to allege the value of the property converted, will be cured by a verdict for the plaintiff. 2. TROVER: Burden of, proof in. Where scrip was deposited with a bailee, for safe keeping, proof of the bailment, in an action of trover for its conversion, does cast on the bailee the burden of showing a re-delivery to the bailor, the plaintiff must prove the conversion as well as the bailment. 3. DAMAGES: Measure of, in trover. The measure of damages in an action of trover, is the value of the property at the time of its conversion. APPEAL from Mississippi Circuit Court. Palmer, for appellant. Adams, contra. HARRISON, J.: This was an action by W. P. Hale, administrator of Josiah B. Murray, deceased, against J. T. Jefferson, surviving partner of the firm of Jefferson & Edrington, to recover the value of certain Arkansas State warrants, or scrip, and Mississippi County scrip-$5,000 of the former, and $2,000 of the latter-deposited by his intestate with said firm and converted by them to their own use. Jefferson vs. Hale, adm'r. The State warrants were alleged in the complaint, to be worth sixty-five cents, and the county scrip, eighty-five cents on the dollar. The defendant's answer denied only the bailment, or that such deposit had been made with them, and the alleged values of the scrips. The case was submitted to a jury, which returned a verdict for the plaintiffs, for $5,268.75. Motions for a new trial, and in arrest of judgment, were filed by the defendant, and overruled; and he appealed. The cause assigned in arrest of judgment, was the very indefinite one; that the complaint was not sufficient in law to support a judgment. The particular objection, however, urged by the appellant's counsel here, is, that the value of the scrips, at the time of conversion, was not averred. This objection we consider, not true in point of fact. The averment of the values of the scrips, was not restricted to the time of bailment, and applied as well to the time of conversion as to that; and had there been no averment as to the value, at all, the omission would not have been fatal to the action, for a good cause, though defectively stated, would, nevertheless, have been shown, and the verdict would have cured the defective statement. 1 Chit. Plead., 673; Sevier v. Holliday, 2 Ark., 513; Martin v. Webb, 5 Ark., 73; Fry v. Baxter, 10 Mo., 302; Colbrook v. Merrill, 46 N. H., 160. The motion for a new trial was upon two grounds: First-That the court gave, at request of the plaintiff, an erroneous instruction to the jury; and, Second-That the verdict was contrary to the evidence. The evidence, or so much thereof as is material to be stated, was as follows: Jefferson vs. Hale, adm'r. J. B. Best, testified for plaintiffs: That, Josiah B. Murray and himself were in Memphis, on the 10th of June, 1872, and that Murray came to his room at the hotel, on the morning of tha day, to ascertain from him the amounts of money, State scrip, and county serip, injoined in his, Murray's, hands; witness was, at the time, clerk of Mississippi County, and it appears elsewhere in the evidence in the case, that Murray was sheriff. Witness gave him the estimated amount of each, and Murray then took from his satchel a lot of State and Mississippi County scrip, and he and witness counted from it the requisite amount, about $2,600 of each kind, and put the same in two packages. Witness then, at Murray's request, counted the remainder of the scrip. There were about $5,000 of the State, and a little over $2,000 of the county. After he had counted it, he put that also in two packages, which he pinned together so as to make one. They then went to Jefferson & Edrington's, whilst there, Murray loaned Jefferson & Edrington $5,000, for which they gave him an acknowledgment or obligation. The defendant handed the money to Mr. Bills, their book-keeper, to take to the bank; and as he was about starting, Murray said to him; "Hold on; I will go with you, and deposit this package of scrip." Edrington and the defendant both said, that there was no use to go to the bank; that they had a good safe, which was both fire and burglar proof, and it would be as safe there as at the bank, Murray thereupon handed the package, the same that contained the remainder of the scrip, after the $2,600 of State, and the $2,600 of county, or thereabouts, had been taken out, $5,000 of State scrip, and $2,000 of county scrip, to the witness, who handed it to the defendant, and he put it in the safe. The witness and Murray left the office of Jefferson & Edrington, about 3 or 4 o'clock that evening, and were together the whole of that afternoon. They came up home on the same boat, Jefferson vs. Hale, adm'r. and Murray was never again in Memphis; he died on the 4th of September following. He further testified that Arkansas State warrants, or State scrip, was worth at that time sixty-five cents, and Mississippi County scrip from eighty-five to eighty-seven and a half cents on the dollar. And, also, that he, in March, 1874, met Bills, the bookkeeper of Jefferson & Edrington, in Memphis, and asked him what had become of the scrip, and he told him that it had been delivered to John Matthews; and he also saw the defendant, and asked him the same question, and he gave the same answer. Matthews, when he heard that they said the scrip had been turned over to him, denied it, and he and the witness went to Memphis to see the defendant and Bills about it. At first they insisted it had been delivered to Matthews; but after considerable conversation and some words, they admitted it had not been. This witness, it appears, married the widow of Murray. The plaintiff testified that he demanded the scrip of the defendant, on the 14th of April, 1875, the day, but before, the suit was brought. He said he knew nothing about it; if it was ever left with them Edrington got it. John Matthews testified, for the defendant, that Murray was mortally wounded in a difficulty with one Fitzpatrick, in the latter part of August, 1872, and died on the 4th of September thereafter. When wounded he was carried to the witness' house. A short time after he had been there, he said to the witness he wished him, if he should die, to settle up his business. After it became apparent that he would die, his physician asked him if he desired witness to administer upon his estate, and he replied that he did. Witness then drew up a chair to the lounge upon which he was lying, and requested him to give him a statement of such matters of his business that he had no written evidence Vol. XxxI.—19. |