Pitts v. Pitts

LAMM, J.

Plaintiffs sued Jas. J. Pitts in ejectment for the southwest one-fourth of the southeast one-fourth of section 1, township 35, range 22, in Hickory county, Missouri, laying their ouster as of the 2nd day of May, 1902. As Elenor Britton filed a separate answer, we assume that by mediate steps she was made a party defendant. The answers of Pitts and Mrs. Britton set forth equitable matter as a defense, and prayed affirmative equitable relief. A finding of facts was requested by plaintiffs, was made by the trial court, and incorporated into the decree. On that finding of facts, the decree went for defendants, and plaintiffs appeal here on the record proper — in this case, petition, answers, replication and decree. -

I. At the threshold we are met with the question: Did this case on these answers remain at law, or did it become a case in equity? "Whatever may have been the ancient practice whereby there was a gulf fixed between equity and law, so that a case brought as a law suit could not be changed and pass over into an equity suit, yet, under our code, it is no longer so. A defendant may now plead his equitable defenses when sued at law. Under somewhat deceptive catchwords, section *359 605, Revised Statutes 1899, provides as follows: “. . . The defendant may set forth by answer as many defenses and counterclaims as he may have, whether they be such as have been heretofore denominated legal or equitable, or both. . . .” In establishing a working theory for the administration of this statutory rule, it has been determined that a mere equitable defense, without more, leaves the case one at law to be tried by a jury; but if the answer go further and pleads facts entitling defendant to affirmative equitable relief, and such relief be asked, then the case goes over to the chancery side of the court to be heard by the chancellor as an equity suit. [Carter v. Prior, 78 Mo. 222 ; Kerstner v. Vorweg, 130 Mo. 196 ; O’Day v. Conn, 131 Mo. 321 ; Swon v. Stevens, 143 Mo. 384 ; Martin v. Turnbaugh, 153 Mo. 172 ; Shaffer v. Detie, 191 Mo. l. c. 388; Bouton v. Pippin, 192 Mo. l. c. 473; Cobe v. Lovan, 193 Mo. l. c. 252.]

II. Plaintiffs’ learned counsel argue that on the facts found by the chancellor the decree was for the wrong party — in other words, the judgment on its very face is a non sequitur. It may be conceded there are dicta in some of our decisions lending countenance to the view that we will review a judgment in equity which incorporates into itself a finding of facts and reverse or affirm such judgment in accordance with our notions of the probative force of the facts found. But such precedents, if precedents they be, must no longer be followed. Our later decisions thoroughly review the cases and furthermore consider the matter on its philosophies and from the standpoint of the very right and justice of the thing, and hold that in an equity suit it is incumbent upon a litigant seeking relief from us to bring here the evidence, so that our conscience may be bound and we may seek equity and do it in the light of the testimony itself. [Guinan v. Donnell, 201 Mo. 173 ; *360 Patterson v. Patterson, 200 Mo. 335 ; State ex rel. v. Jarrott, 183 Mo. 204 ; see, also, Rule 7 of this court.]

Equity suits are to be heard de novo on appeal. The eye of a chancellor must search the very marrow of the thing; and, in order to discern what is due the litigant, that eye must not be baffled by the screen of a mere finding of facts below — the question still remaining, were the facts as found the real facts or not? [Fitzpatrick v. Weber, 168 Mo. 562 ; Shaffer v. Detie, supra; Bouton v. Pippin, supra.] If the chancellor had called to his aid a jury and submitted to that jury issues of fact the jury’s finding would have been merely advisory and not binding on the chancellor. [Bouton v. Pippin, 192 Mo. l. c. 474.] By analogy, the chancellor’s findings, nisi, are looked on as somewhat advisory and not binding here.

There being no bill of exceptions in this case, and, therefore, no evidence preserved and brought here, and the record proper being unchallenged except in the one particular'that the decree is not supported by the finding of facts, there is nothing for us to do but to affirm the judgment. It is so ordered.

All concur.