did not intend to relinquish his right to be the preferred purchaser of the lands in controversy, that he only took the scrip, as a mode of settlement of his work, intending to apply it to the purchase of the lands, for which he had always intended his levee contract to be available, and because the law obliged him to do so; such being the legal effect of the act of 12th January, 1853, or being so considered and acted upon by the officers who had the administration of the swamp land laws, by whose opinion and advice Moseby represents himself to have been guided.

It must be conceded that Moseby has acted throughout his whole course of conduct, with relation to these lands, consistently with his avowed object to become their purchaser, and their preferred purchaser, under the act of 11th January, 1851. When he obtained his contract in June, 1851, to make a levee, it must have been soon after the work was ready for contract: he took that section of the levee line that was in front of these lands: he did it, as he says, with the express intention of saving these lands for an addition to his plantation, which he needed; under a custom observed by the sub-commissioner of his district, he made and filed his application in June, 1852, for the entry of these lands, except eighty acres, in payment of his work, to be done under the particular contract for levee section No. 38-and procured the lands to be marked on the plats in the office, as having been applied for by him; in June and July, 1854, as soon as he made his settlement with the commissioners, he obtained his scrip, and, with the view of putting it on the land; in September, 1854, he claimed, to Carroll, the land agent, to whom had been committed the sale of the lands, the right to enter them as levee contractor, upon his application before made, and then on file in the office, which was not granted, because the lands were not confirmed: the lands were confirmed to the State as swamp lands, in February, 1855, and in May, 1855, and, it would seem, as soon as the lists could be transferred to the office at Pine Bluff, he repeated his claim to enter the lands as a levee contractor, which was sustained, and

he entered them with the scrip which he had received for his levee work, and which he had kept to be so applied; in November, 1856, the lands were patented to the State by the United States, and in May, 1857, he procured the deed of the Governor, thus ending his prompt and persistent efforts, as he always intended they should be ended, with the investiture of the title of the lands.

If Moseby has not secured the right to the lands it is because he has been misadvised, for as he understood the law, he has been active and continuous in his efforts to gain their preferred purchase, as a levee contractor, under the act of 11th January, 1851.

Brodie, however, contends that, by taking scrip for his levee work, Moseby elected not to take payment in the lands, and that his entry was void, as he had no superior right of entry to any other person, as the lands could not be entered till they had been exhibited to public sale; and that Brodie's own right being founded on an application to enter the lands immediately after the land agent had closed his public sale, is a better right than that of Moseby, who having the legal title without right, must yield it to Brodie, who is entitled to it by right of his application.

Moseby does not equitably fall within the principle of McGehee vs. Mathis, 21 Ark., 59, as he never received the scrip instead of the lands in payment of his levee work, with the intent to use the scrip in any way but as a method of securing the lands for the work, by putting the very scrip he received upon the very lands for whose purchase he took the levee contract. He never relinquished his claim to have the lands in payment of his work, he never did any thing that he thought was a relinquishment, or weakening, of his claim, he only took the scrip as a step towards getting his pay in the lands, which, without the change in the law, he could have got without such intermediate step.

In pursuance with his intention, when he entered into the contract, and in continuation of his effort to secure the lands

by application to the sub-commissioner, Walker, in June, 1852, Moseby, as soon as his work was finished and estimated, had his accounts audited by the commissioners, and because they would not give him the land for the accounts, to procure the land with scrip, which he supposed was the only way open to reach the same end, he exchanged his adjusted accounts for Auditor's warrants upon the treasury, and them he turned into treasury certificates, or scrip, with which to cover the lands.

Neither is Moseby's case like that of Frazier, in Deloach vs. Brownfield, 22 Ark., for he took his scrip as a marketable commodity, he did not take his levee contract, or scrip in its discharge, with a view to secure the lands he applied to enter; that is, such facts are not apparent in the case, while it is a part of the case that Frazier did not show that he owned the lands in front of the lands whose entry was controverted in that suit.

From the facts in this case, we are not satisfied that, by the letter of the statutes upon swamp lands, Moseby was debarred from his original right to purchase the lands in payment of his levee work, by taking scrip in the way he did, or that his tak ing and application of the scrip was anything but a circuitous mode of obtaining payment in lands for his levee work. we are sure that his case is within the equity of the statute.

And

Moseby's entry of the lands was made the 19th of May, 1855; 'Brodie's application to enter the lands was made upon the 9th of August, 1855, which is the beginning of his claim. The entry was ratified by the state, by the issuance of her patent to Moseby, and though his entry had been irregular, we do not see how Brodie can object to it, unless it had violated an equity which he had in the lands, that was subsisting at the date of Moseby's entry.

But Brodie has no equity. He would have had a legal right to have bought the lands at private entry, on the 8th of August, 1855, or any subsequent day after they had been offered at public sale by the land agent, and had not been sold. These lands were not offered for sale, as Mills, the land agent, positively

swears, they were not then subject to private entry, and Brodie's application to enter them, irrespective of Moseby's claim, cannot support his suit. If Moseby's patent could be canceled, Brodie has no claim upon the lands, but they would have to be exposed to public sale, and if so exposed and unsold, he would have the same right as any other man, who might be willing to pay for the lands, to endeavor to purchase them at private entry. Act of 12th January, 1853, secs. 8, 12.

In Deloach vs. Brownfield, the lands had been offered at public sale, were not sold for want of bidders, and Brownfield and Watkins afterwards made their entry-from having the legal title unopposed by any equity, their title was undisturbed by this

court.

If Brodie had been permitted to make his entry he would have had only a claim subsequent to that of Moseby. If as in Bacon's ad. vs. Tate, decided at the present term, two swamp land patents had issued, one each to Moseby and to Brodie, and the legal titles had balanced each other, the equity of Moseby would have made his the better title. But when Brodie's claim, as we have seen, is not a legal title, is not a legal claim, and has no support in equity, it cannot prevail over a perfect legal title that is based upon a strong equitable foundation. The north half of the southwest quarter of section twelve does not stand on the same footing as the other lands, as the entry of Moseby is his first specific step towards that piece of land, but he is entitled to it under his prior right.

The judgment of the Circuit Court of Jefferson county sitting in chancery, dismissing the bill for want of equity, is affirmed.

21

The plea of the statute of limitations is not appropriate to an action of scire facias to revive a judgment.

Appeal from Lafayette Circuit Court.

Hon. LEN B. GREEN, Circuit Judge.

GARLAND & RANDOLPH, for the appellant.

GALLAGHER, for appellee.

Mr. Chief Justice ENGLISH delivered the opinion of the court. The questions presented in this case were decided in Brearly vs. Peay, Rec., at the present term, which followed previous adjudications of the court.

The judgment sought to be revived by the scire facias was rendered 29th April, 1850. Upon the trial of the issue to the plea of payment, no actual payment was proven, and sufficient time for the common law presumption of payment to attach, had not elapsed when the scire facias was sued out. The plea of the statute of limitation was inappropriate.

Judgment affirmed.