Cochran v. Webb

By the Court.

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.