6839

#### KEENAN v. LESLIE.

Real Property — Issues—Equity.—Where in an action for possession of land the pleadings raise only legal issues, it is improper to submit to jury equitable issue of title, although proof has been admitted on that issue.

*Parker*v. *Jacobs,*14 S. C., 112, *distinguished from this case.*

Before J. E. McDonald, Special Judge, York,

April Term, 1904.

Affirmed.

Action by Lucy Keenan and 'Others against D. Preston Leslie. From judgment for defendant, plaintiffs appeal.

*Messrs. Spencers & Dunlap,*for appellants',

cite: 14 S. C., 110; Code of Prac., 274, 194; 1 Hill Oh., 376.

*Messrs. J. S. Brice*and *W. B. McCaw,*contra,

cite: 44 S. C„ 546; 36 S. C., 561; 28 S. O., 533.; 23 S'. C., 292; 54 S. C., 353, 155; 42 S. C, 133, 92; 40 S. O., 517; 51 S. G, 236; 61 S>. G, 4; 21 S'. G, 221, 226; 24 S. G, 165; 29 S. G, 124; 16 S'. G, 197; Code of Proe., 197.

April 1, 1908.

The opinion of the Court was, delivered by

*474Mr. Justice Jones.

The plaintiffs, brought this action against defendant ta recover .possession of six acres of 'land in the fork of the Landsford and Columbia roads near Leslie, in York County. The complaint alleged that Raph Keenan, having- purchased said land! from George Sturgis, was seized; and possessed of some at the time of his death intestate in 1900, and that plaintiff Lucy Keenan, as his widow, and Fie other plaintiffs, as1 'his only Üeirs-at-law, are seized in fee and1 entitled to. the premises., 'and the defendant is in possession and wrongfully withholds the same. The defendant denied that plaintiffs or their ancestors; bad any title to the premises and set up legal title in' himself.

The .plaintiffs offered some evidence tending to show that Raph Keenan 'entered into possession about 1875 or 1876 under a pardl1 contract of purchase wii'th George Sturgis, then owner, which was thereafter fully performed, and remained in possession until his death ini June, 1900', in which possessioo his heirs continued until dispossessed *by*defendant during that year, that defendant when he .purchased knew that Raph Keenan had been in possession since 1877, but there was no testimony Flat .defendant had notice that the possession' was under contract of purchase nor that said contract had been performed.

The defendant’s testimony showed' a complete chain of title in himself from the common source as follows;

1. Deed from George W. Sturgis to F. IT. Barber dated Dleoember 13, 1876, duly recorded February 5, 1877.

2. D'eed of F. H. Barber to Matthew H. Williams dated March 22, 1879, duly recorded March 27, 1879.

3. Deed of Fie heirs-at-law of Matthew H. Williams to the defendant dated January 2, 1900’, duly recorded March 5, 1900.

The testimony in behalf of the defendant further tended to show that Raph Keenan went into' possession in 1876 under F. H. Barber and Fiat F. H. Barber contracted to sell Keenan the land for $62.50 payable in twelve months; that Keenan paid Barber $17, but was unable to pay more; Fiat *475upon Barber urging payment Keenan brought Matthew-Williams to buy the land in 1879, and that as a result Barber conveyed the land' to Williams, in consideration of $56.40, which was arrived at by charging interest on $62.50' and deducting the $17 payment; that Keenan continued in possession as tenant of William's, paying’ him, rent for the lands until Willi-ams’ death in 1809; that defendant purchased the land from the heirs of Williams for $150' without any knowledge that Keenan or his heirs were in possession claiming to 'be the owners.

Lucy Keenan in reply testified that no- rent was ever paid by Keenan on ‘the land in question.

The jury found for the defendant and frota) 'the judgment thereon plaintiffs appeal.

The Court refused to charge plaintiff’s sixth request, as follows: “Where a plaintiff proves a perfect equitable title to land he may recover of the defendant on the allegations of the complaint that plaintiff is seized' in fee 'and 'entitled to the possession,” 'but on the 'contrary charged the jury that “it must be the legal1 title and noit the equitable title under which a plaintiff in such an action as this must recover possession.”

The only question presented 'by the exception is, whether the foregoing charge and refusal to charge was error in face o-f the fact that testimony pro and con- upon the issue of an equitable title was allowed to he offered on the trial.

To sustain their appeal appellants rely on the case of *Parker & Co.*v. Jacobs, 14 S. C., 112, and on Section 274, Which provides that “an issue of fact in an -action for the recovery of money only or -of specific real estate or personal' property must be tried by a jury unless a jury trial be waived as provided in Section 282 or a reference be ordered.”

The issue tendered by the complaint 'and answer in this case was strictly legal, and it was proper under the pleadings to submit only legal issues to the jury.

The case of *Vann*v. *Howle,*44 S. C., 546, 22 S. E, 735, shows that- the exception can not 'be sustained. In that case *476the plaintff, Mrs. Vann, holding the legal title under Joseph T. Vann, brought the action to recover land 'claimed 'by defendant Howie under a parol 'contract ta purchase from Joseph T. Vann. The Court held that in an action to recover real property, if the defendant 'claimed under a parol contract to purchase and full performance on his part, his defense is equitable and not a matter to be determined by the jury and, therefore, it was not error to refuse requests to charge relating to the equitable defense. The Oourt further said: “The defendant should have requested the 'Circuit Judge to decide the issues arising out of the equitable defense set up in the answer, but he had no right to have such issues passed upon by the jury.”

In the ease of *Cooper*v. *Smith,*16 S. C., 331, an action was brought ta recover land purchased by plaintiff from Rbatoie; the defendant admitted' plaintiff’s- deed1 but alleged possession under prior contract to purchase made with R'bamie. Tire ease wias submitted to a jury, who found for defendant, and judgment entered, 'but two years afterwards the judgment was vacated on the ground that the defense Was equitable and should- not have been submitted to a jury, but -should have been passed upon by the Judge. In that case the Court cited *Gadsden*v. *Whaley,*9 S. C., 147; *Sloan*V. *Westfield,*11 S. C., 447, and *Adickes*v. *Lowry,*12 S. C., 108, as strong to the point that an equitable -defense set up in the answer in a law Case must be tried by the chancelbr either personally or through the aid -of a jury acting under his order and for -his enlightenment.

In *Holliday*v. *Hughes,*54 S. C., 155, 31 S. E., 867, the Court used this language: “Ever since the -case of *Adickes*v. *Lowry,*12 S. C., 97, recognized and followed in numerous subsequent -cases, it has been- the settled rule 'that while under -the Code of Procedure both legal -and equitable issues may be tried in the same case, yet ‘at tire trial the legal and equitable issues roust be distinguished and -decided by the Court in the exercise of its distinct functions as a court -o-f law- and a -court of equity, and only those should be deter*477mined by a jury which are properly triable by a jury, while those which would formerly have been triable in- equity must be determined by the Judge in the exercise of his chancery powers.’ ”

Numerous other cases might be cited' to illustrate the practical construction which 'has been placed by the Court upon Section 274 of the Code, ¡and the effect is to limit its meaning so as to require submission to1 the jury of strictly legal issues. If this be true in an action toi recover land wherein an equitable issue is raised by the pleadings, for a greater reason, it is not improper to refuse to submit to a jury equitable issues not raised by the pleadings.

The case of *Parker & Co.*v. *Jacobs, supra,*relied on by appellant, is not in real conflict with the authorities, following the rule stated in *Adickes*v. *Lowry. Parker*v. *Jacobs*decides that a plaintiff under the Code c-an enforce ¡an equitable right to property- in dispute under a form; of action which seeks relief formerly obtainable only in a court of law, and therefore it was error to *nonsuit*a plaintiff who. in an action to recover the possession of personal property established an equitable title thereto'. The meaning- of the case was that one showing an equitable title should not be *thrown out*of court. This is perfectly consistent with the rule in *Adickes*v. *Lowry,*that equitable issues must be tried by the chancellor and not by .the jury. Therefore, when one raises an equitable issue by bis pleadings, the proper practice is to have the Judge sitting as chancellor pass thereon and not seek toi have such issues submitted to a jury as matter of right. In this way both legal and equitable issues1 mlay be tried in the same action before air appropriate tribunal without turning the party out of court.

The judgment of the Circuit Court is affirmed.