February 4, 1919. The opinion of the Court was delivered by This is an action to recover on a general warrant contained in a deed from defendant to the plaintiff after issues joined. The case was tried before Judge Moore, and a jury, and resulted in a verdict in favor of the plaintiff for the sum of $274.35. After entry of judgment, defendant appeals.
At the opening of the trial Judge Moore construed the pleadings to contain separable legal and equitable issues, and would only submit to the jury such evidence deemed by him to be responsive to the legal issue, and in construing the first deed merged in the second deed to be one granting a specific number of acres and that the defendant would be liable for damages for any deficiency in said acreage. The exceptions summarized impute error to the presiding Judge in separating the issues and restricting the evidence before jury and in his rulings in these particulars.
After all of the evidence was in, the equitable issues were fully inquired into by his Honor, who decided the same, and then submitted the legal issues to the jury.
The exceptions cannot be sustained that insist that the jury should have been allowed to pass upon the testimony going to prove an equitable defense. Appellant did not ask his Honor to withdraw the case from the jury. Neither did the Court do so. But appellant's counsel suggested to the Court "that the only question is trying the equitable issue before your Honor," and in reply this the Court said, "You gentlemen agree to that?" and the reply of appellant's counsel was, "Yes, sir; we agree to that." Thereupon the Court, in accordance with this suggestion and agreement of appellant's counsel, proceeded to try the question of mistake set out in the answer. The jury retired and this defense was fully entered into. The appellant cannot be heard to complain in this particular. Neither was there any error on the part of his Honor in his construction of the *Page 67 deed (second one) in question. It was the deed that both plaintiff and defendant by mutual agreement entered into after execution and delivery of first deed between the parties and was to govern the transaction between them.
After delivery of second deed plaintiff was ousted of part of the land embraced thereon under a title containing a general warrant by a paramount outstanding title in another. As to the finding by his Honor of the equitable issues in the case, the appellant has failed to convince us that it is not sustained by a clear preponderance of the evidence in the case. The evidence shows that the plaintiff was to get the lands described in the plat. The deeds were the same, except the second deed gave the plaintiff the land within the plat. The evidence fails to show fraud or mutual mistake. The defendant knew, or should have known, what he was doing when he executed the deed.
We fail to see any errors in the trial in the Circuit Court, and all exceptions are overruled, and judgment affirmed.