
    Jeremiah W. Smith v. Madeline Anderson.
    Where aa action is brought for the recovery of specific real property and an issue of fact is made up, the parties are, under the statute, entitled to a second trial, but not to an appeal; although the answer sets up an equitable defence simply.
    
      Motion to dismiss appeal. Reserved in the district court of Union county.
    The plaintiff filed his petition April 7,1866, stating that he is seized in fee-simple and entitled to the possession of certain real estate described, and that the defendant unlawfully keeps him out of the possession thereof, and prays judgment for the recovery of the possession of the premises.
    The defendant answered May 5, 1866,1st, that the allegations of the petition are not true, and she denies the same, and, 2d, sets up facts as given, in substance, in the statement-of this defence in the opinion of the court.
    The reply, filed May 12,1866, denies the material allegations of the answer.
    At the May term, 1866, of the common pleas, the issues-were tried to a jury — verdict and judgment for the defendant, and plaintiff demanded and was allowed a second trial under the statute.
    At the November term, 1866, of the common pleas, the defendant’s motion, that she bepermitted to strike from her answer the first defence, was granted, and that defence was-ordered to be stricken from the answer.
    Afterward at the same term the cause was submitted to a jury. They were unable to agree upon a verdict and were discharged.
    At the May term, 1867, of the common pleas, the parties submitted the cause to the court and the court found for the defendant, and adjudged that the defendant go hence without day and recover of the plaintiff her costs.
    The plaintiff gave notice of and perfected his appeal to the district court.
    In the district court the defendant moved to dismiss the appeal for the reason that a second trial was had, under the statute, in the common pleas, and no appeal lies to the district court in the case.
    This motion was reserved to this court for decision.
    
      
      Mobmson <& Hobmson in support of the defendant’s motion:
    The original action was brought under section 558 of the code to recover specific real property.
    In such an action either party has the right of trial by jury. S. & C. 1020; McCrory v. Parks, 18 Ohio St. 1; Sprague, Adm'r, v. Childs, 16 Ohio St. 107.
    The plaintiff demanded his second trial and had it. We therefore claim he should be refused the third trial on the facts, even if he was not entitled to a second trial, but should have taken his appeal at first.
    The case is one for jury trial. The petition alleges such facts and asks such relief as make it a case purely legal. It is true, that, at first glance, the facts set up as the second defence would seem to set up an equitable instead of a legal defence, but it is a mistaken view of the case. 1st. Because if affirmative relief had been sought by that defence the necessary parties to enable the court to grant it were not before the court. Thomas Jones, who held the title to the lot, would have been a necessary party to such a proceeding and would have been the proper party to ask the relief. 2d. The facts set up were sufficient to defeat the right of possession of the plaintiff, but would not have been sufficient to entitle the defendant to affirmative relief in equity. 3d. The court of common pleas took this view of the case and simply rendered judgment for the defendant, thereby defeating the plaintiff’s possessory action, but gave no order or-decree of affirmative relief to the defendant. In short, the appeal is from a judgment at lem in the ordinary form.
    
    
      Carper & Van Deman, for plaintiff, against the motion:
    The first defence was stricken out of the answer. This took from the case the issue at law, the one triable by jury. There was no longer any issue as to the plaintiff’s legal title, but it was simply whether there was a trust in defendant’s favor. This issue was tried to the court — judgment for defendant and appeal by plaintiff.
    The plaintiff had the right to this appeal, because when the defendant changed her plea she changed her case. "While the two issues remained, the general denial of the petition drew the case before the jury. After the change, the matter which a jury could comprehend, and on which they were fitted to pass, was all thrown out, so that “ the issue of fact ” then made was not “for the recovery of specific real propert/yf but another thing, upon the decision of which the recovery sought in the petition mightpa/rtidlly depend for a separate and secondary judgment; but if the court had established the trust the defendant set up, that would not have settled the plaintiff’s claim; it would only have been a big fact entering into and, perhaps, controlling the mind of the court in rendering a judgment on the petition.
    The question of recovering possession by the plaintiff and of the validity of his title, and whether he had any title at all, was really “held in abeyance.” In reality there has been but one trial and judgment on the present issue; but if there has been more than one, we ought not to be prejudiced by that, if the case is one for the judgment of the district court. In the common pleas the case began at lane and ended im chancery; and although the decision of the court on the issue thus made, had it been in our favor, might have stopped all resistance to the plaintiff’s claim as set up in his petition, such decision, we submit, would not, im, itself.\ have been a decision of plaintiff’s claim.
    If our reasoning be right, the parties had “ not the right to demand a trial by jury,” after the change in the pleadings, but the issue of fact was triable by the court. S. & G. Stat. 1020,1021, secs. 263, 264.
    It seems to us that this case is clearly within that of Massie v. Stradford, 17 Ohio St. 596. We cite also McCrory v. Parks, 18 Ohio St. 1.
    
      P. B. Cole also for plaintiff:
    The case was one for appeal. Code, sec. 694.
    After striking out the first ground of defence, the case was not one for trial by jury. Code, see. 263.
    
      The principle in this case was decided in our favor in Massie v. Stradford, 17 Ohio St. 596.
    We are not deprived of our right of appeal because the case was actually tried by a jury after the first ground of defence was stricken out. It was not a case for a jury trial, and to so try it was contrary to law, and could not take from us any legal right.
    The form of the judgment has nothing to do with the present proceeding.
   Brinkerhoff, C.J.

The plaintiff brought his action in the court of common pleas to recover the possession of real property. The petition described the land and contained simply the allegations of fact which the 558th section of the code of civil procedure declares shall be sufficient.

The defendant answered; and as a first defence, denies generally all the allegations of the petition. But this defence was subsequently, and by leave of the court, withdrawn. As-a second defence the defendant denies that the plaintiff is-entitled to the possession of the premises in controversy, by reason of a state of facts which she proceeds to set out, and which are in substance these: That the plaintiff derives his-legal title to the premises by deed of conveyance from one Thomas Jones, a brother of the defendant. That Jones purchased the premises at her request, and for her use during her lifetime, and advanced the purchase-money therefor; but with the distinct understanding and agreement that he should hold the legal title in trust for her use until he should be repaid his advances on the purchase-money. That she immediately took possession of the premises under this agreement, has made improvements thereon, and repaid to her brother a portion of the purchase-money advanced by him. That while she was thus in possession, the plaintiff, by falsely and fraudulently representing to her brother that she had consented to a sale of the premises, effected a purchase thereof in fraud of her rights. She sets up these facts by way of equitable defence and cross-petition, and prays affirmative action by the court in her behalf.

The plaintiff replied taking issue on the facts alleged in the answer.

Jones was not made a party to the action.

The case was tried to a jury, resulting in a verdict and judgment for the defendant. The plaintiff took a second trial, in which a jury was waived, and judgment was again given for the defendant. The judgment was simply that she go lienee without day and recover her costs. The plaintiff perfected an appeal to the district court; the defendant moved to dismiss the appeal, and that motion was reserved for decision here;

The issue made by the parties in their pleadings was as to the right of possession. The plaintiff claimed it on the ground of his legal title. The defendant set up an equitable defence, which, under the code of civil procedure (sec. 93), she might well do. The action was for the recovery of specific real property. An issue of fact was made in the. case, and either party had a right to have the issue tried by a jury. Code, sec. 263.

The facts that the defence was an equitable one, and that the defendant prayed affirmative action by the court in her behalf, do not alter the case. The plaintiff was entitled to a second trial in the common pleas, and he had it; but he was not entitled to an appeal. S. & C. Stat. 1157, sec. 294.

Appeal dismissed.

Soott, Welch, White, and Day, JJ., concurred.  