
    Fred Sheeful v. Chris. Murty.
    1. In an action to recover damages for cutting and carrying away timber from a certain described tract of land, two defenses were filed: 1. A general denial. 2. An equitable defense and cross-petition, in substance that the plaintiff had sold this land to defendant and undertaken to convey the same, but, by mistake, the deed did not describe the tract but another. The prayer was for the correction of the mistake, and for a proper conveyance. Issue was joined on this answer, which was tried by the court (the issue made by the first defense being left undisposed of, without objection), and the equitable relief prayed for was granted, and the plaintiff appealed to the district court: Held, 1. That the issue on this second defense was purely equitable, and one to be tried by the court, and not by a jury; that, on being determined in favor of the defendant, it constituted a bar to plaintiff’s cause of action.
    2. That it was proper for the court to dispose of this equitable defense before trying .the case on the issue of law made by the first defense, and that final judgment against the plaintiff having been rendered on such equitable defense alone, the plaintiff was entitled to an appeal from such judgment.
    Error to tbe District court of Sandusky county.
    Tbe action below was tbis :
    February 18, 1871, Sbeeful filed bis petition in tbe San-dusky Common Pleas, against Murty, to recover damages for trespass on plaintiff’s land, and cutting and carrying ' away timber, claiming $300.00. The lands were described as tbe middle one-third of south-east one-fourth, section fourteen, of Townsend township, Sandusky county, Ohio,except sixteen acres off North end. Murty answered, setting up two defenses:
    1. General denial.
    2. An equitable defense, in substance as follows:
    That on December 1, 1866, be purchased of Sbeeful said middle ono-tbird and a certain one-fourth of an acre, in all forty and one-fourth acres, and took a deed of that date from Sbeeful and wife therefor.
    Shortly thereafter, Sbeeful wanted to buy back tbe premises, but Murty wanted to keep tbe timber land, and re•fused to sell the whole hack, but offered to sell all of it back except the timber land.
    Thereupon Sheeful agreed to buy, and Murty to sell, all ■of said forty and one-fourth acres back, except the timber land, said timber being the north end of said middle one-third, etc.
    And they both, supposing a destruction of the deed from Sheeful and wife to Murty would revert the title in Sheeful, agreed that it should be destroyed, and Sheeful should, in consideration of $850.00, convey all said timber land to Murty, being all of said middle one-third lying north of a ■certain fence, supposed to contain sixteen acres more or less.
    That said deed was destroyed, and, on December 14, 1866, plaintiff and defendant went to John Mackey’s office to have a deed made to defendant for said timber land, .and a deed was then made by Sheeful and wife to Murty, in which the tract so bargained was described as sixteen acres off north end of said middle one-third, etc.
    And that said description is wrong, and does not describe the land he (defendant) in fact purchased. That he immediately thereafter took possession • of all said timber land, and cut away firewood therefrom, and has had possession thereof ever since up to said fence, and this is the alleged trespass complained of, and he all the time supposed his deed conveyed the land up to said fence until after this suit was begun, when he first learned of the mistake and defect in his deed.
    Defendant therefore prays:
    Said mistake and error may be corrected, that plaintiff he ordered to convey all said timber land lying north of ■said fence to him, and for such further relief as equity may require.
    A reply was filed by Sheeful specifically denying and answering this equitable defense.
    At the January term, 1872, as appears by the record, the cause came on to be heard by the court, upon the s'ee•ond ground of defense, without objection, and the issue was fpund for defendant, and the plaintiff was ordered to execute a corrected deed of the timber land to the defendant,, and the defendant was ordered to release his title to the residue of the tract, the legal title to which had been vested in him by the deed of December 1st, which was destroyed.
    From this judgment, the plaintiff perfected his appeal-to the district court, where, on motion of defendant, the appeal was dismissed on the ground that it was a case triable by a jury.
    To reverse the judgment of the district court in dismissing the appeal, this action in error is prosecuted.
    
      John M. Lemmon, for plaintiff in error.
    
      T. P. and H. R. Finefrock, for defendant in error.
   Johnson, J.

The action below was tried on the second defense only. This defense was in the nature of a cross-petition asking for equitable relief which, if granted, was a bar to the action of trespass. It sets up a state of case purely of equitable cognizance, and prays for the correction of a mistake and the conveyance of the land. Issue was joined on this equitable defense, and, on a trial to the court on this issue (the issue of law made by the first defense being left to be disposed of by a jury, should the equitable defense be determined against the defendant), the equitable relief prayed for by defendant was granted.

This issue was not triable by a jury, and being determined against the plaintiff, disposed finally of his action at law.

The case is within the principle of Massie v. Stafford, 17 Ohio St. 596; Taylor v. Leith, 26 Ohio St. 426, and Buckner v. Mear, 26 Ohio St. 514.

These cases are conclusive of this, and leave nothing to be added.

An examination of Ladd v. James, 10 Ohio St. 437, and Smith v. Anderson, 20 Ohio St. 77, relied on by counsel for defendant, in connection with the opinion of the court in. Buckner v. Mear, explaining and limiting these eases, show that they have no application to a case like the present.

The plaintiff was entitled to his appeal. The judgment •of the district court is reversed and cause remanded.  