
    Cochran and others v. Webb. Webb v. Cochran and others.
    In an ejectment, the defendant cannot, in an answer denying the plaintiff’s legal title, set np an equitable defence looting to affirmative relief. »
    Where a defendant in an ejectment, after putting in issue the plaintiff’s title, files a cross complaint setting up an equitable right to the land, and praying for a release and other relief, the court will not stay the first suit till the trial of the latter, but will permit the legal title to be first tried, and if the plaintiff in the first suit succeed, will then stay his proceedings until the equitable issue can be determined.
    (Before Oakley, Ch. J., and Mason, Campbell, and Paine, J. J.)
    October 18, 1851.
    Appeal from an order at chambers. Cochran and others sued Webb,in an action to recover lands, (formerly known as an action of ejectment.) The plaintiffs claimed title to the premises as the heirs-at-law of Thomas Lovett, deceased. The lands sought to be recovered cónsist of a tract in the city of New York, bounded easterly by the East river, and westerly by Mangin-street, which tract was formerly covered by the water of the East river, and was made by filling up east of Mangin-street. Thomas Lovett, as the plaintiffs alleged, owned this tract as annexed to his land lying in and west of Manginstreet, and it descended to his heirs.
    Webb put in an answer to the complaint, denying the plaintiff’s title, and setting np a'legal title in himself by and through a partition of the estate of Lovett. The suit is at issue.
    Before Cochran’s suit was put at issue, Webb filed a cross complaint against the plaintiffs in that suit, setting forth that the tract in question was a part of the lands formerly owned'by Thomas and George Lovett, that those lands were divided between George L. and the heirs of Thomas L., in which division the tract in question was intended to be allotted to the latter, but owing to a mistake were omitted to be described in the report of the commissioners in partition in their description of the nineteen lots adjoining on the west, which were allotted to those heirs. That E. Pell subsequently bought those lots and the tract in question from the special guardian of the heirs under an order of the court of chancery. That by mistake the latter tract was omitted in the deed first executed to Pell, but on discovering the error, the special guardian executed a conveyance of the tract to Pell, from whom Webb derived his title. Webb prayed in his complaint for a release of the title of the tract in question from the plaintiffs in the ejectment, and for an injunction order and for general relief. There was a demurrer to this complaint. .Webb thereupon moved for an.order, staying the ejectment suit until the decision of his cross suit.
    
      E. Sandford, for Webb.
    
      T. Romeyn, for Cochran and others.
   By the Court.

Oakley, Ch. J.

It was argued that a defendant in ejectment, cannot, .in an answer denying the plaintiff’s legal title, set up an equitable defence looking to affirmative relief. We have on consideration determined that this argument is sound, and for this reason among others, that under the code the equitable issue requires a different mode of trial from that arising on the allegations in the complaint. Issues which under the old system were called legal are triable by jury; those that were denominated equitable are to be tried by the court.

As to the application for a stay of proceedings, we think the legal title should be first tried, and if the claimant establish a legal title, we can stay the entry of judgment or the subsequent proceedings, until the equitable cross claim can be determined. We have not considered the question whether the facts set up in the cross complaint do or do not furnish a ground for relief.

Order accordingly.  