McCOY, P. J.
Plaintiff brought this action to determine adverse title and claim to a certain strip of real estate lying between the N. W. x/a of section 27, in township 95, north of range 55, in Yankton county, and the N. E. Ya °f section 28 in said [485]*485township, and alleges in his complaint that he is the owner in fee and entitled to the possession of said real property, and that defendant claims an interest or estate therein adverse to plaintiff, but which claim of defendant is without right; that defendant about io years ago entered into possession of said land and has occupied and used the same; and that the value and use of such occupation is $1,000. Wherefore plaintiff demands judgment for the sum of $1,000; and that defendant be required to set forth the nature of his claim; that all adverse claims of defendant may be determined by a decree of this court; that it be decreed and adjudged that defendant has no estate or interest whatever in and to said real estate; that the title of plaintiff, is-good and valid; that the defendant be forever enjoined and debarred from- asserting any claim whatever in and to said land adverse to plaintiff; and for such other relief as plaintiff may be entitled to, and for costs To this complaint defendant answered denying the portions of said complaint not admitted; admitted that defendant claimed an interest and estate in said real property; alleged that he had been in the open and notorious possession of said land for more than 30 years, occupying and cultivating the same, and that no part of plaintiff’s cause of action accrued within 20 years; and, as a counterclaim, alleged ownership in fee in himself, and demanded judgment-that defendant be declared and adjudged to be the owner in fee of said land, and that plaintiff be forever enjoined and debarred from asserting any claim or title whatever thereto adverse to defendant, and for costs. Plaintiff made reply denying the portions of the counterclaim not admitted. From the pleadings and from. the evidence it appears that there is a dispute between plaintiff and defendant as to the true location of the boundary line between said quarter sections of land; that, if said boundary line is located where the same is claimed to be by plaintiff, then plaintiff is the o-wner of said strip of land, while, on the other h-an-d, if said 'boundary line is located where claimed- to be bv defendant, then defendant is the owner of the disputed strip of land in controversy. At the beginning of the trial, over the protest of defendant, a jury was called and impaneled, and the cause tried before a jury. A general and special verdict was rendered by the [486]*486jury in favor of plaintiff, in effect, locating the boundary line between said quarter sections of land as claimed by plaintiff. After the rendition of the verdicts and discharge of the jury, and before the rendition of judgment, defendant moved the- court that the court make findings of fact and conclusions of law, as in an equity suit, in favor of defendant. Thereafter, based upon said motion, the court made the following order: “Defendant’s motion to the court for findings in the above-entitled action, based on all the pleadings and evidence in said case, having been regularly brought on for hearing before the court, French & Orvis appearing in support of said motion, and C. H. Dillon in opposition thereto, and the court, after examining and considering the pleadings in said action and hearing the arguments of counsel and being of the opinion that said pleadings show said action to be an equity action as distinguished from an action at law and one-in which the court should make, findings of fact and conclusions, of law based upon the evidence in said case, it is therefore ordered that findings of fact and conclusions of law be hereafter made and filed after the parties shall have been heard, to which order plaintiff excepts and his exception is hereby allowed. That the decision on this motion was made and announced to attorneys for respective parties on or about the 15th day of March, 1911, but counsel drew no formal order thereon until this date, July 11, 1911. It is therefore ordered that defendant’s order be as of March 15, 1911. Done in open court this nth day of July, 1911. By the court, R. B. Tripp, Judge.” Thereafter the plaintiff moved the court, before rendition of judgment, to- set aside, vacate, and annul ,the foregoing -order, made July nth, and to permit plaintiff to amend his complaint to conform with - the rulings of the court made on the trial of said cause and to conform to the proofs and evidence offered in said cause and to- conform to the theory, on which said cause was tried, that said cause was tried by plaintiff and defendant upon the theory that it was an- action at law. This motion of the plaintiff was granted, and the order ■of July nth canceled and set aside, and plaintiff permitted to amend his complaint setting up a cause of action at law, purely in ejectment, for the possession of said land in controversy. To [487]*487this ruling of the court defendant objected and excepted. Thereafter the court rendered judgment upon the verdicts of the jury in favor of plaintiff as in an action at law tried before the court and jury.
[1] Defendant appeals, contending that the court erred in canceling and setting aside the said order of July nth, and in permitting plaintiff to- amend his complaint thereby changing the nature of the cause of action from a chancery of equitable action to an action at law, and in rendering judgment without findings of fact and conclusions of law, as required in an equity action. We are of the opinion that appellant is right in this contention.
It will be observed, from the original pleadings, both complaint and answer, that every material issue raised was inherently on the equity or chancery side of the court, triable by the court without a jury. The very nature and substance of the relief sought, both by the original complaint and answer, was only such as could be administered and granted by the court in the exer'cise of its equity jurisdiction.
[2] 'Under the pleadings and issues, as originally made up and on which the case was tried, neither party was entitled, as a matter of constitutional or statutory right, to a trial by jury. In an equity case, however, the court may in its discretion call a jury to assist the court in determining disputed questions of fact; but in that case the verdict or finding of the jury is advisory only, and does not relieve the necessity, under section 276, C. C. P., of findings of fact and conclusions of law in writing signed by the court as a basis for the judgment rendered. “The parties are entitled to the opinion of the chancery court upon the issues of fact as well as upon the issues of law, even when the issues of fact have been submitted to a jury. It is, accordingly, error for the chancery court, acting in a merely ministerial capacity, to enter a decree simply on -the jury’s verdict. On the contrary, the decree which the court enters upon the return of the verdict must be its own decree, based upon its own knowledge of the facts, and it can treat the verdict of the jury only as an opinion on the facts which it is at liberty to consult.” 16 Cyc. 425; McNaughton v. Osgood, 114 N. Y. 574, 21 N. E. 1044. The facts-[488]*488found by the jury, in a case triable by the court, must be approved by the court before they can be made the basis of a judgment, and if approved, they become, by adoption,. the findings of the court. Vermilyea v. Palmer, 52 N. Y. 471; McClave v. Gibb, 157 N. Y. 413, 52 N. E. 186.
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McCOY, P. J.
Plaintiff brought this action to determine adverse title and claim to a certain strip of real estate lying between the N. W. x/a of section 27, in township 95, north of range 55, in Yankton county, and the N. E. Ya °f section 28 in said [485]*485township, and alleges in his complaint that he is the owner in fee and entitled to the possession of said real property, and that defendant claims an interest or estate therein adverse to plaintiff, but which claim of defendant is without right; that defendant about io years ago entered into possession of said land and has occupied and used the same; and that the value and use of such occupation is $1,000. Wherefore plaintiff demands judgment for the sum of $1,000; and that defendant be required to set forth the nature of his claim; that all adverse claims of defendant may be determined by a decree of this court; that it be decreed and adjudged that defendant has no estate or interest whatever in and to said real estate; that the title of plaintiff, is-good and valid; that the defendant be forever enjoined and debarred from- asserting any claim whatever in and to said land adverse to plaintiff; and for such other relief as plaintiff may be entitled to, and for costs To this complaint defendant answered denying the portions of said complaint not admitted; admitted that defendant claimed an interest and estate in said real property; alleged that he had been in the open and notorious possession of said land for more than 30 years, occupying and cultivating the same, and that no part of plaintiff’s cause of action accrued within 20 years; and, as a counterclaim, alleged ownership in fee in himself, and demanded judgment-that defendant be declared and adjudged to be the owner in fee of said land, and that plaintiff be forever enjoined and debarred from asserting any claim or title whatever thereto adverse to defendant, and for costs. Plaintiff made reply denying the portions of the counterclaim not admitted. From the pleadings and from. the evidence it appears that there is a dispute between plaintiff and defendant as to the true location of the boundary line between said quarter sections of land; that, if said boundary line is located where the same is claimed to be by plaintiff, then plaintiff is the o-wner of said strip of land, while, on the other h-an-d, if said 'boundary line is located where claimed- to be bv defendant, then defendant is the owner of the disputed strip of land in controversy. At the beginning of the trial, over the protest of defendant, a jury was called and impaneled, and the cause tried before a jury. A general and special verdict was rendered by the [486]*486jury in favor of plaintiff, in effect, locating the boundary line between said quarter sections of land as claimed by plaintiff. After the rendition of the verdicts and discharge of the jury, and before the rendition of judgment, defendant moved the- court that the court make findings of fact and conclusions of law, as in an equity suit, in favor of defendant. Thereafter, based upon said motion, the court made the following order: “Defendant’s motion to the court for findings in the above-entitled action, based on all the pleadings and evidence in said case, having been regularly brought on for hearing before the court, French & Orvis appearing in support of said motion, and C. H. Dillon in opposition thereto, and the court, after examining and considering the pleadings in said action and hearing the arguments of counsel and being of the opinion that said pleadings show said action to be an equity action as distinguished from an action at law and one-in which the court should make, findings of fact and conclusions, of law based upon the evidence in said case, it is therefore ordered that findings of fact and conclusions of law be hereafter made and filed after the parties shall have been heard, to which order plaintiff excepts and his exception is hereby allowed. That the decision on this motion was made and announced to attorneys for respective parties on or about the 15th day of March, 1911, but counsel drew no formal order thereon until this date, July 11, 1911. It is therefore ordered that defendant’s order be as of March 15, 1911. Done in open court this nth day of July, 1911. By the court, R. B. Tripp, Judge.” Thereafter the plaintiff moved the court, before rendition of judgment, to- set aside, vacate, and annul ,the foregoing -order, made July nth, and to permit plaintiff to amend his complaint to conform with - the rulings of the court made on the trial of said cause and to conform to the proofs and evidence offered in said cause and to- conform to the theory, on which said cause was tried, that said cause was tried by plaintiff and defendant upon the theory that it was an- action at law. This motion of the plaintiff was granted, and the order ■of July nth canceled and set aside, and plaintiff permitted to amend his complaint setting up a cause of action at law, purely in ejectment, for the possession of said land in controversy. To [487]*487this ruling of the court defendant objected and excepted. Thereafter the court rendered judgment upon the verdicts of the jury in favor of plaintiff as in an action at law tried before the court and jury.
[1] Defendant appeals, contending that the court erred in canceling and setting aside the said order of July nth, and in permitting plaintiff to- amend his complaint thereby changing the nature of the cause of action from a chancery of equitable action to an action at law, and in rendering judgment without findings of fact and conclusions of law, as required in an equity action. We are of the opinion that appellant is right in this contention.
It will be observed, from the original pleadings, both complaint and answer, that every material issue raised was inherently on the equity or chancery side of the court, triable by the court without a jury. The very nature and substance of the relief sought, both by the original complaint and answer, was only such as could be administered and granted by the court in the exer'cise of its equity jurisdiction.
[2] 'Under the pleadings and issues, as originally made up and on which the case was tried, neither party was entitled, as a matter of constitutional or statutory right, to a trial by jury. In an equity case, however, the court may in its discretion call a jury to assist the court in determining disputed questions of fact; but in that case the verdict or finding of the jury is advisory only, and does not relieve the necessity, under section 276, C. C. P., of findings of fact and conclusions of law in writing signed by the court as a basis for the judgment rendered. “The parties are entitled to the opinion of the chancery court upon the issues of fact as well as upon the issues of law, even when the issues of fact have been submitted to a jury. It is, accordingly, error for the chancery court, acting in a merely ministerial capacity, to enter a decree simply on -the jury’s verdict. On the contrary, the decree which the court enters upon the return of the verdict must be its own decree, based upon its own knowledge of the facts, and it can treat the verdict of the jury only as an opinion on the facts which it is at liberty to consult.” 16 Cyc. 425; McNaughton v. Osgood, 114 N. Y. 574, 21 N. E. 1044. The facts-[488]*488found by the jury, in a case triable by the court, must be approved by the court before they can be made the basis of a judgment, and if approved, they become, by adoption,. the findings of the court. Vermilyea v. Palmer, 52 N. Y. 471; McClave v. Gibb, 157 N. Y. 413, 52 N. E. 186.
[3] It cannot be contended that the court in this case adopted the finding's of the jury as its own, because it appears that in rendering judgment, after the amendment of the complaint, the court treated the verdict of the jury as rendered in a law action wherein the verdict is binding on the court.
[4] The system of trial by the court in equity suits, as it exists in this state, came to us from the New York Eeld Code, and is in substance the same in this state as in that. 3 Wait’s Pr. 212; Wait’s Ann. N. Y. Code, §.§ 266-267. The same system of trials in equity suits exists in California, where, decisions of like import may be found. Kerr’s Ann. Cal. Code, §§ 592, 631, 632; Learned v. Castle, 67 Cal. 42, 7 Pac. 34; Warring v. Preear, 64 Cal. 54, 28 Pac. 115; Bell v. Marsh, 80 Cal. 414, 22 Pac. 170. While, by the statute of this state (section 36, C. C. Pr.), as well as by the statutes of New York, California, Wisconsin, and other states, distinctions between actions at law and suits of equity are abolished, still this statutory abolition of distinctions applies to the form of the action only, and not to the inherent substantive principles which underlie the two systems of procedure. Anderson v. Chilson, 8 S. D. 64, 65 N. W. 435; Craigo v. Craigo, 22 S. D. 417, 118 N. W. 712. In the action at law the court is bound by the verdict, and the rendition of judgment thereon is ministerial. In the equity suit the court is not bound by the verdict or findings of the jury, but may adopt or reject the same. On appeal the method of review' is different; in the equity action the court reviews the evidence to ascertain ■ whether the findings of the lower court are sustained by a clear preponderance of the evidence, while in the law action the court reviews the evidence to ascertain whether there is any evidence to sustain the verdict, regardless of the preponderance. The effect of the admission of immaterial or. improper evidence, the effect of the instructions to the jury, are different in the two systems. All these distinctions are still [489]*489recognized and in 'force and practiced by the courts, notwithstanding that all the distinctions as to the form of actions at law and suits in equity have been abolished. It is contended 'by respondent that the amendment to the complaint was for the purpose of conforming the pleading's to the evidence of both parties, and to conform the pleadings to the law case as tried in the lower court by both parties. In this case, as it must be observed, it happens that the evidence which might be submitted by the contending parties pro and con would be very similar, whether the action be in equity to determine adverse title with perpetual injunction, or whether the action be on the law side of the court to recover the possession of specific' real ■ property. The evidence would conform to one action as well as to the other. The evidence in this case was all submitted while the pleadings showed the action to be on the equity side of.the court and conformed to the issues as the pleadings existed at that time. Therefore there is no force in the contention that the amendment to the complaint was permissible under the rule allowing amendments, after trial, for the purpose of conforming the issues to the evidence, where evidence has been received without the scope of the pleadings, as the pleadings existed at the time of the trial. In this case the evidence, when offered, was strictly within the scope of the issues and conformed thereto. The only effect of the amendment, in this particular, being to make the evidence which did conform to the issues at the time of the trial, also conform to the issues of another form af action, different in nature and method of procedure, not in existence at the time of the trial.
The assertion is made that the suit was tried in the lower court by both parties as an action at law, but there is nothing in the record to justify such assertion. The case was also tried in the lower court by both parties, in every particular, just the same as it might have been tried as a suit in equity. The cause was tried in the lower court on the original pleadings, which required defendant to come into court and show by what title or estate he claimed the land in controversy; which original pleadings asked the court to decree and declare that plaintiff’s title was superior to that of defendant, and for an injunction forever [490]*490restraining and debarring defendant from claiming title against plaintiff. This is the theory on which both partie.s tried the case.
[5] Courts at law 'do not now and never had power or jurisdiction to compel a defendant to come ipto court and show by what title' or estate he claimed to own real property; courts at law do not decree and declare titles, and do not grant “forever” or perpetual injunctions. These remedies'are all on the equity side of the court by virtue of its equity jurisdiction. True, a jury was called and impaneled, the same as in an action at law; but a jury may be called in that way in an equity suit, whose verdict and findings are only advisory to the court, and still, nevertheless, leaving the action on the equity side of the court to< progress and be determined' according to the methods of equity case procedure. From the language used in the order of July nth, it is quite evident the trial court considered that up to that point in the proceedings it was an equity action with equtiy pleadings. At the time this suit was being tried, there was no power or jurisdiction to try the case other than as an equity suit. The issues as framed by the pleadings at that time must govern and determine the nature of the trial. We do not wish to be understood as holding that prior to trial, or even on trial, upon proper application and showing, a complaint could not under any circumstances be amended so as to-change the nature of the action from the equity to the law side of the court, or vice versa; but on this question we do not deem it necessary to express an opinion, -but -do hold -that, after a cause has been completely tried out on the pleadings, which could not be other than on the equity side, and' could not be other than to call into exercise -the equity jurisdiction of the court, it is then too late to permit an amendment that would change the nature of the action from an equity suit to an action at law to the prejudice of one of the parties by -depriving -him of the right to findings made by the court, and also depriving him of the right to have-the cause reviewed on appeal under the rules and methods of review on appeal in equity cases. It seems to be generally held that an amendment which changes the cause of action from the law to the equity side of the court will not be permitted after trial. 31 Cyc. 414-432. Gibbons v. Denver Brokerage Co., 17 Colo. [491]*491App. 167, 67 Pac. 913; Gates v. Paul, 117 Wis. 170, 94 N. W. 55; Carmichael v. Argard, 52 Wis. 607, 9 N. W. 470; Gilman v. Gross, 97 Wis. 224, 72 N. W. 885; North Side Loan Co. v. Nakielski, 127 Wis., 539, 106 N. W. 1097; Zoller v. Kellogg, 66 Hun, 194, 21 N. Y. Supp. 226; Matthews v. Rund, 27 Inch App. 641, 62 N. E. 90; Anderson v. Chilson, 8 S. D. 64, 65 N. W. 435; Craigo v. Craigo, 22 S. D. 417, 118 N. W. 712.
The judgment appealed from is reversed, and the cause remanded, with directions that the trial court make findings of fact and conclusions of law as required by section 276, C. C. Pr., upon the evidence already submitted on the trial.
SMITH, J., took no part in this decision.