BROWN et al. v. CRANBERRY IRON & COAL CO., 65 F. 636

SIMOFTON, Circuit Judge (after stating the facts). It Is not easy to determine what this proceeding at law was. It began an action at law, growing out of a proceeding in equity brought under, the direction and with the permission of the chancellor. The complainants claimed to be cotenants in certain mines and minerals with the defendant, and sought partition. The defendant denied their title, and set up sole seisin.

This “was not a mere point of law or fact incidentally in dispute, but a general question of right, determinable as such by a law court, and requiring a decision, according to the course of that court, both of disputed facts and the law applicable thereto.” The proper course, therefore, was to direct an action at law to be brought to determine the title. Adams, Eq. (7th Ed.) 378. And this is the constant practice of courts of equity in suits for partition when the title is in dispute. 3 Pom. Eq. Jur. § 1386, and note 3.

But, when the case came before the law court, every other question was eliminated, and the only issue was this of estoppel, in pais as well as by deed, — an issue within the domain of equity jurisprudence, and cognizable by such a court Pom. Eq. Jur. § 802. When this issue was submitted to the jury, it was with the purpose of aiding the chancellor in coming to his conclusion, submitted in his discretion, and not as a matter of right. This he himself distinctly asserted in his charge. It is not excepted to. In this respect the proceeding assumed the form of an issue for a jury.

Such an issue is directed when an incidental question of fact is so involved in doubt, by conflicting or insufficient evidence, that the court considering the inefficacy of written evidence is desirous of referring it to the verdict of a jury. Adams, Eq. (7th Ed.) 375. If this be an issue out of chancery, the finding of the jury and the judgment enteréd thereon are not reversible on bills of exception and writ of error here. The error, if any exist, must be removed, and corrected in the court ordering the issue. Johnson v. Harmon, 94 U. S. 372; Watt v. Starke, 101 U. S. 250; Brockett v.

Brockett, 3 How. 691; 2 Daniell, Ch. Prac. (3d Am. Ed.) 1106; Wilson v. Riddle, 123 U. S. 615, 8 Sup. Ct. 255. If, however, it be an action at law, brought under the direction and by leave of the court, then the court of equity does not assume to interfere with the course of proceedings in the court of law, and all errors made at the trial must be corrected in that court or by writ of error to the appellate court Watt v. Stark, 101 U. S., at page 250; Bootle v. Blundell, 19 Ves. 500; Adams, Eq. (7th Ed.) p. 378; Smith, Ch., Prac. 90.

Treating this record as an action at law, reviewed on writ of error, the result of which must be conclusive of the issues presented, the first inquiry is, is it ripe for a hearing in this court? As an action at law, it must be governed by the course of proceeding in a court of law. This case, as presented in the court below, involved two issues, — one determinable by the court alone; the other submitted to the jury.

One issue was: “Did the deed of Brown estop him and his privy from denying the title of defendant?” The other issue was: “Are the plaintiffs estopped by their acts, declarations, or otherwise from claiming any interest in the mines and minerals in the land described in the complaint?” Each issue was independent of the other. The decision of both was absolutely necessary to a final- decision of the action. The jury found the issue of fact in favor of defendant. That issue is here. The judge has ruled upon the other issue also in favor of defendant That ruling is not here.

If it be not excepted to, it ends the action. If exception be taken hereafter, then our conclusions upon this writ of error will not end the case. In other words, it is not here on a final judgment; and cannot in this record be disposed of. Let the case be remanded to the circuit court for such proceedings as may be necessary, each party to pay the costs by them or it incurred in this court.