| Ark. | Apr 29, 1893
The preponderance of the evi- . irr ~ i ii-t» dence is to the effect that Gatlin executed and delivered £0 Carpenter a deed to the forty-acre tract in question, and that the defendant Bryson knew that fact, or, what in legal effect is the same thing, had information which would naturally have suggested inquiry which would have led to the knowledge of its execution. That is true, even without Bullock’s testimony. Bryson can take nothing therefore by the conveyance as against Dove.
2- Dove has the legal title. If he did not purchase under foreclosure of his mortgage by the trustee, as he alleged in his complaint, his title as mortgagee remained intact. Upon that title he could maintain ejectment or a suit to quiet title preparatory to a sale under the mortgage.
3. The complaint alleged that the plaintiff was in possession of the land in suit. The answer denied the allegation. The evidence tends to prove that the defendant was in possession. What effect should that have on the result? The act of March 26, 1891 (Acts 1891, p. 132) governs this suit. The first section is as follows: “An action may be brought and prosecuted to final decree, judgment or order, by any person or persons, whether in actual possession or not, claiming title to real estate, against any person or persons, whether in actual . possession or not, who claim an adverse estate or interest therein, for the purpose of determining such estate or interest, and quieting the title to said real estate.” Similar acts have been construed by the courts of other States, and their effect upon the jurisdiction of the Federal courts has been passed upon by the Supreme Court of the United States.
In Mississippi and Indiana it is held that such acts authorise the real owner who is out of possession to resort to equity to cancel an illegal claim of title held by a defendant in possession. Wofford v. Bailey, 57 Miss. 239" date_filed="1879-10-15" court="Miss." case_name="Wofford v. Bailey">57 Miss. 239; Paxton v. Valley Land Co. 67 id. 96; Ragsdale v. Mitchell, 97 Ind. 458" date_filed="1884-10-08" court="Ind." case_name="Ragsdale v. Mitchell">97 Ind. 458, 461. In the former State it is held, however, that the jurisdiction of equity is exhausted when the cloud on the true title is removed, and that the complainant must resort to his action at law for possession. Wofford v. Bailey, 57 Miss. sup.
The Iowa court, under a similar statute, justifies the resort to equity under such circumstances and awards possession in the chancery suit. Lewis v. Soule, 52 Iowa, 11" date_filed="1879-09-17" court="Iowa" case_name="Lewis v. Soule">52 Iowa, 11; Lees v. Wetmore, 58 id. 170.
In California it is held that such an act cannot deprive a 'defendant in possession of the constitutional right of trial by jury merely by calling the action equitable. Donahue v. Meister, 88 Cal. 121" date_filed="1891-02-25" court="Cal." case_name="Donahue v. Meister">88 Cal. 121. See to the same effect the Pennsylvania cases cited in Donahue v. Meister. In California it is said that the suit is not strictly equitable but is statutory, and it is the practice there for the court sitting in equity to frame an issue upon the question in reference to which the right of jury trial exists, and submit it to a jury. Upon the verdict of the jury the court acts by dismissing the bill or by adjudging the equitable issues. Donahue v. Meister, 88 Cal. sup. The Supreme Court of the United States regard the acts as conferring jurisdiction upon the federal courts of equity in the States where they are in force to the extent of allowing the bill to be filed by a plaintiff not in possession where the lands are unoccupied. Holland v. Challen, 110 U.S. 15" date_filed="1884-01-07" court="SCOTUS" case_name="Holland v. Challen">110 U. S. 15; Whitehead v. Shattuck, 138 id. 146.
Under the limited rule applied in that court, it is apparent that the simple denial of the plaintiff’s allegation of possession would not be an answer to the complaint, for a plaintiff out of possession may maintain the suit. If the defendant had alleged that he himself was in possession when the plaintiff’s suit was instituted, and that issue had been resolved by a jury in his favor, it would not have been cause for dismissing the action, as under the California practice, because the second section of the act of 1891 clearly indicates that proceedings are to be had in the pending suit to settle the question of title, rather than in a new suit thereafter to be brought.
Conceding, without deciding, that the defendant in this case had a constitutional right to a trial by jury of an issue of fact, it is sufficient to say that he waived it by voluntarily submitting to a trial of all the issues by the court sitting in equity, without making an effort to obtain a jury trial. If, therefore, it should be'found in this case that the defendant was in possession, the decree should not be reversed for that reason.
The act of 1891 has been amended, pending- this appeal, by an act of April 4, 1893, which endeavors to point out how the trial by jury may be obtained.
The court erred in finding for the defendant. Reverse the decree and remand the cause with directions to enter a decree for Love cancelling the deed from Gatlin to Bryson to the forty-acre tract in dispute.
It is so ordered.