The opinion of the Court was delivered by
Mr. Justice Gage.
The case recites that this is an action to recover land. It was tried before a jury, and the verdict was for the defendant. The Court set the verdict aside, and the defendant has appealed from that order.
1
There are three exceptions, but there is practically but one issue involved. The trial Court concluded in the order that the case is one in equity, and “that the Court is not bound by the said verdict on said issues.” The appellant contends that the “plaintiff brought a plain ordinary action for the recovery of land,” and the Court was bound by the verdict. The pleadings will of course be reported. We are of the opinion that the case is plainly one in equity, and ought not to have been submitted to a jury, except by the procedure that issues of fact in such cases may be submitted.
2
The deed from Bochette to Minor C. Galluchat is confessedly a trust deed, and the trustee could sell and convey only according to the terms of the trust. The answer charged in the fourth defense that the trustee violated the trust, and made to the plaintiffs a deed of the trust property for his own benefit and against the
cestui que trust.
That is an issue triable by a chancel
lor, so well established as to be elementary. If that defense is established by proof, the plaintiff’s title is completely defeated.
3
The answer admits in the second paragraph of the second defense that the defendant is not the owner of the land in dispute; that while he has a deed to it, the deed was in fact only made to secure a debt due to the defendant by the
cestui que trust;
and that when the defendant loaned money to the
cestui que trust
he did so without notice of the plaintiffs’ claim of title. That is just as plainly an issue for a chancellor; and if it shall be established by proof, and the paintiffs’ title shall be defeated, all the defendant will be entitled to will be a sale of the premises to satisfy the debt due to him.
4
As the Circuit Judge held, he was not bound by the verdict as he is bound in cases at law.
The order is affirmed, and the cause is remanded to the Circuit Court, to be tried according to the principles announced.
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