The opinion of the court was delivered by
Horton, C. J.:
At the September term of the district court for 1881, judgment was rendered in this case upon the general verdict and findings of the jury in favor of plaintiff in error. Defendant in error demanded another trial, by notice on the journal, and thereupon the judgment was vacated and the action set for trial at the next term. At the January term following, trial was again had, and a verdict rendered in favor of the defendant. Upon this verdict and the special findings of the jury, judgment was rendered in his favor.
The first errror assigned is the vacation of the judgment „ rendered at the said September term of the court, and the continuation of the cause for a new trial to the subsequent term. It is insisted that the trial had at said September term was the second trial of the cause, and that the court had no power under the provisions of § 599 of the code to grant to the defendant a third trial. It appears from the record that the petition originally filed was defective as a petition for the recovery of real property, and although this defect was abundantly cured by the answer and reply filed in the action, the court upon the trial on said pleadings sustained an objection *662of the defendant to the introduction of any evidence, on the ground that the petition did not state facts sufficient to constitute a cause of action. While the plaintiff excepted to this ruling, he afterward waived all errors therein by obtaining leave and filing-a new or amended petition. To this petition the defendant filed a new and different answer than the one filed to the original petition. The trial court having treated the original petition and the pleadings thereunder as constituting no cause of action, and the plaintiff having accepted by his subsequent conduct the ruling of the court to be correct, and the parties thereafter having filed-a new petition and a new answer, the trial had thereon at the said September term of the court must be regarded as the first trial, and therefore defendant had the right to demand another trial,by notice on the journal, and the court did not err in vacating said judgment and in setting the action for trial at the following January term. The trial at the January term for 1882 may be considered under the circumstances of this case as another or second trial of the cause. It was clearly the second trial had upon the pleadings as they existed at that time, and all the parties, together with the. court, seem to have regarded that the original pleadings failed to set forth an action for the recovery of real property. While we do not intend to intimate that in actions for the recovery of real property the pleadings may not from time to time be amended, and while •it is also true that upon each amendment parties as a right are not entitled to two trials, yet as in this case the parties and the court acted upon the theory that no action was pending for the recovery of real property at the trial had upon the original pleadings, the trial at the September term of 1881 must be deemed the first trial in the action for the recovery of the property in controversy.
The plaintiff, at the conclusion of the evidence, asked the court to instruct the jury, “That the burden of proving the equitable title in the said Joseph Richardson devolved upon him, and failing to prove the same by a preponderance of the testimony, they must find for the plaintiff upon that point.” *663The court refused this instruction, but charged the jury, among other matters, “That the plaintiff held the record title to the land, and that the defendant claimed to be the equitable owner and entitled to the possession thereof, and also charged that the burden of proof was upon the plaintiff to show his right to the possession of the land, and that the defendant unlawfully kept him out of the possession thereof, and that it devolved upon the plaintiff to make out his case by a preponderance of the evidence.” But the court did not stop here. It very carefully called the attention of the jury to all of the evidence which was uncontradicted, and then very clearly, explicitly, and at length, announced what facts were necessary to be established in order to constitute the defendant an equitable owner of the premises, and even if an equitable owner, what facts were necessary to entitle him' to assert such ownership as against the plaintiff.
As the plaintiff instituted his action for the recovery of the premises upon his legal title, he was bound to prove in the first instance that he held the legal title, and also the value of the rents and profits for which he demanded judgment. Thereupon the defendant was bound to establish such facts as constituted him the equitable owner of the premises, and his right to assert the ownership and possession as against the plaintiff.
The special findings of the jury clearly show that the jury were convinced of the equitable ownership of the defendant, and as the charge of the court did not in any manner direct the jury that the plaintiff was bound to prove other than the allegations of his petition, the refusal of the specific instruction asked for was not material error, or prejudicial to his rights.
It is also urged that there was no evidence introduced to uphold the verdict and special findings of the jury. The evidence is very conflicting, and in many matters flatly contradictory, but a perusal of the record satisfies us that there was sufficient introduced on the part of the defendant to sustain, not only the verdict, but the special findings. It is *664likewise claimed upon the evidence, the defendant was not the owner of any equitable estate in the land. The recitation of some of the more important facts embraced in the special findings is conclusive to the contrary. Thils, the jury found that there was a verbal agreement entered into between Joseph T. Richardson, the son, and Joseph Richardson, the father, for the son to buy for his father the land in controversy; that the defendant Joseph Richardson paid toward the purchase-price all that was paid; that the father and son agreed the title of the land should be taken in the name of the father, the defendant Joseph Richardson; that it was a violation of the contract that the son, Joseph T-Richardson, took the title to himself; that the father did not assent to this action, and had no actual knowledge that his son was mortgaging and treating the land as his own; that there was an arrangement between the father and the son that the father was to have the south half of the quarter for himself; that at the time the plaintiff took his deed, the defendant was in the open, notorious and exclusive possession of the premises under a claim of ownership; that the plaintiff did not make any inquiry of the, defendant as to his possession of the land; that the plaintiff had actual notice of the equitable title of the defendant at the execution of the deed, and was not a purchaser of the land in good faith.
The other errors complained of, in view of the special findings of the jury, are unimportant and need not be noticed.
The judgment of the district court will be affirmed.
Valentine, J., concurring.
Brewer, J., not sitting.