Curb v. Grantham

*396 GARDNER, J.' Bill by appellee against appellant and another for the foreclosure of a mortgage on certain real estate situated in Marion, Alabama. The defense was that the complainant had been paid in cash and store account the larger portion of the mortgage debt, and the small balance remaining had been ■ tendered before the filing of the bill. The answer was made a cross-bill with the prayer that the mortgage be canceled as a cloud on the title. Respondent (appellant here) demanded that the issue o.f fact presented be tried before a jury, and the action of the court in refusing this demand is assigned as error.

It is now too well understood and firmly settled for discussion that a trial by jury as a matter of right in a court of chancery depends solely upon statutory or constitutional provisions therefor. 21 Corpus Juris, 585. This rule of law is not controverted by counsel for appellant, but the insistence seems to be that the cross-bill comes within the purview of the statute to quiet title (section 9905, Code 1923), and that jury trial is therefore provided in such proceedings (section 9908, Code 1923). Of course one of the essential elements of a statutory bill to quiet title is that “no suit is pending to enforce or test the validity of such title,” which is contradicted and disproved by the answer itself and the entire proceedings. Recourse, very clearly, cannot be had therefore to the foregoing statute, and it results the court committed no error in the denial of the demand for jury trial.

The only remaining question presented relates to the finding of the chancellor upon the facts. It' is a question 'not free from difficulty, as there was sharp and irreconcilable conflict in the evidence. A discussion of it here will serve no useful purpose, nor has it been the policy of the court to enter into a detailed consideration of questions of fact since the passage of the act of 1915, p. 594. Caples v. Young, 206 Ala. 282 , 89 So. 460 . Suffice it to say the evidence has been examined with painstaking care. The witnesses testified orally before the chancellor, who had therefore the advantage of the observance of their demeanor upon the witness stand, and the rule is now well established that under such circumstances his findings of fapt will not be here disturbed, unless we are persuaded they are plainly and palpably wrong. Caples v. Young, supra.

We are not so persuaded in the instant case, and the decree will accordingly be here affirmed.

Affirmed.

■ ANDERSON, C. J., and SAYRE and MILLER, JJ., concur.