Petition for rehearing. The petition is put upon the ground that the judgment should be reversed, for the reason thatithe Court erred in refusing to the plaintiff a jury trial on a traverse of the answer, inasmuch as the answer stated a legal and not an equitable defense.
*519Whether the answer states a case within the equity jurisdiction or not must be determined by the answer itself. No light can be thrown upon the question by referring to the position that counsel took in argument, or may have failed to take in this Court or in the Court below. Nor have the findings of the Court any bearing upon the point. The answer meant everything before the trial that it means now.
The answer, so far as it relies upon the deed of Mrs. Gilroy to the defendants’ grantors, states a purely legal defense, and if it stated no more, there could be no question of the plaintiff’s right to a jury trial. But the answer, over and beyond the legal title set up in the defendants, sets forth a parol contract to convey, with a view to the due execution of which the unacknowledged deed of Mrs. Gilroy was given. The terms of that contract are fully charged in the answer—and the entry and possession of the vendees under it—and the costly improvements made by them upon the land—and the subsequent purchase of the plaintiff, for a nominal sum, and with full notice of the defendants’ transactions on the land and of the contract under which they and their grantees entered, and the answer winds up with a prayer “ that Bodley may be decreed to have no title in said premises or to any ■ part thereof, but that as against him the same may be decreed to be the property of the defendants; that he may be decreed to hold the title and interest if any, which passed to him by said conveyance from said Montgomery, in trust for them; and that he may be decretid to convey,, by a good and sufficient deed, all said title, interest or claim to said defendants on demand, and that their title to said premises may be quieted, and that they have such other and equitable relief as may be agreeable to equity.” That these allegations disclose an equitable defense, resting upon equitable ownership,1 is undeniable. They were made upon the theory that the legal title was or might turn out to be in the plaintiff instead of the defendants, and they were intended to burden that title with a trust in invitum in the hands of the plaintiff. The relief asked for is equitable altogether. These facts not only demon*520strate the quality of the answer, but show also that an appeal to the equity jurisdiction was a prevision, and not an afterthought, of the defendants or of the counsel by,whom they were represented. That the Court dealt with the case at the trial in the equity aspect of the answer is apparent from the circumstance that all the equitable issues were fully responded to, and though the decree does not give all the equitable relief prayed for, nor all that the defendants were entitled to, still all of the relief given was equitable, and the plaintiff cannot complain on the score of the deficit. It is true that the Court has found that the legal title was in the defendants, as charged in the answer. But the finding does no harm, and for the reason that the charge did none. The special defense was drawn with a law aspect and with an equity aspect. Perhaps the plaintiff might have compelled the defendants to elect on which of the two aspects they would go to trial, but he did not. In the -end the defendants voluntarily elected to take equitable relief, based upon the equitable facts found under the equity aspect of the defense. ' Had the defendants elected in the end to take a common law judgment, based upon the finding that the deed referred to was an operative conveyance, the election would have related back to the trial, and the judgment would have been reversed on the ground that a trial by jury was claimed and improperly denied.
The petition is denied. . j