26 Ind. App. 619 | Ind. Ct. App. | 1901
This action was commenced in the superior court of Vanderburgh county, but tried, upon change of venue, in the Gibson Circuit Court. Erom the finding and judgment of the trial court in favor of appellees, who were defendants below, appellant prosecutes this appeal. In discussing only the action- of the court in refusing to submit the trial of the cause to a jury, and in overruling, her motion for a new trial as a matter of right, she has waived all other specifications of error.
Counsel for appellees, before discussing the merits of the question argued by the learned counsel for appellant, insist that neither of the errors claimed should be considered, because they are not saved by proper bill of exceptions. Upon an examination of the record, and treating the questions as properly presented, we are of' the opinion that, the judgment should be affirmed, and therefor© find it unnecessary
Counsel for appellant argue that the action is purely a legal one to recover possession of real estate and to quiet title. Appellees claim that equitable relief is asked, and that there is no description of the real estate for the possession of which the court- could render judgment.
No authority need be cited in support of the proposition that the theory of an action and the relief sought is to be determined from the general scope of the pleading. Judged by this rule the cause is of equitable cognizance, for the complaint requires an accounting, and presents the questions. (1) was the grantor of sound mind at the time of the execution of the deed? (2) Was its execution induced by undue influence or fraud ?
The rule is firmly established that where equity jurisdiction is developed it continues throughout the entire controversy, although the remedy is of the kind which might be conferred by a court of law.
The averments of the complaint put the legal title of the real estate described in the complaint in appellees; the setting aside of the conveyance because of the unsoundness of mind of the grantor and the alleged fraudulent acts which induced its execution are essential parts of the cause of action, and the whole action was drawn into equity. It was properly submitted to the court. See authorities collected under Woollen’s Trial Proc., §§3383, 3384, 3397.
Appellant was not entitled to either a trial by jury or to a new trial as a matter of right. The point is made by counsel for appellees that under §1076 Bums 1894, which
Upon the whole record the judgment is affirmed.