concurring. As the majority opinion sets out, on the morning of trial the appellants renewed their previous motion for continuance and when it was denied took a nonsuit on their complaint. The chancellor then treated a prayer in appellee’s answer, requesting that the court remove appellants from the property, as a counterclaim for ejectment. Appellants then moved to transfer this remaining cause of action to circuit court and when that motion was overruled they again moved for a continuance asking for twenty days to respond to the counterclaim.
I agree with the majority that the trial court should have allowed appellants time to respond to appellee’s counterclaim but I also think their motion to transfer to circuit court should have been granted.
When the complaint was nonsuited the only cause of action left was one for ejectment by a party holding legal title against a party in possession. In this situation Brooks v. McGill, 250 Ark. 534, 465 S.W. 2d 902 (1971) cited by appellants, very clearly holds that a party claiming under a legal title has a full and complete remedy at law against a party in possession and that chancery has no jurisdiction. A case cited in Brooks explains the matter this way:
This court has held that equity jurisdiction to quiet title, independent of statute, can only be invoked by a plaintiff in possession holding the legal title. The reason is that, where the title is a purely legal one, and some one else is in possession, the remedy at law is plain, adequate and complete, and an action by ejectment cannot be maintained under the guise of a suit to quiet title. In such cases the party in possession has a constitutional right to a trial by jury. Pearman v. Pearman, 144 Ark. 528, 222 S.W. 1064; Gibbs v. Bates, 150 Ark. 344, 234 S.W. 175; and Simmons v. Turner, 171 Ark. 96, 283 S.W. 47.
Jackson v. Frazier, 175 Ark. 421, 424, 299 S.W. 738 (1927).
This has been the rule in Arkansas for more than one hundred years. In Lawrence v. Zimpleman, 37 Ark. 643 (1881), the court said:
To obtain the relief sought, the plaintiff must be in possession when he brings suit, unless his title be an equitable one. A Court of Chancery is not the appropriate forum to try a purely legal title. The defendant, if he is in actual possession, is entitled to a trial by jury, unless there are peculiar circumstances bringing his case under some one of the recognized heads of equity jurisdiction.
And in Ralston v. Powers, 269 Ark. 63, 598 S.W. 2d 410 (1980), the court said:
The equity jurisdiction to quiet title, independent of statute, can only be invoked by a plaintiff in possession, unless his title be merely an equitable one. The reason is that where the power is purely a legal one, and some one else is in possession, the remedy at law is plain, adequate and complete, and an action of ejectment cannot be maintained under the guise of a bill in chancery. In such case the adverse party has a constitutional right to a trial by jury.
Ralston goes on to say, “However, this jurisdictional requirement may be satisfied by a defendant in possession, even though the plaintiff is not, if the defendant affirmatively raises issues clearly cognizable in equity.” The case of Gibbs v. Bates, 150 Ark. 344, 234 S.W. 175 (1921) cited by appellants, holds the same thing but the complaint was dismissed because neither it nor the answer set up a matter cognizable in equity. In regard to the answer, the court said:
It is true that the defendant filed an answer setting up title in herself by adverse possession, but she did this by way of defense to the plaintiff’s action, and did not ask affirmative relief for herself.
In the case of Ark. State Hwy. Commission v. Rice, 259 Ark. 190, 532 S.W. 2d 727 (1976) relied upon by the majority, the court cited a case where the defendant landowners had moved to transfer an eminent domain case from circuit to chancery alleging “a complete remedy cannot be obtained in law.” The motion was granted and in chancery the defendant’s motion to transfer back to law was denied. On appeal, the Supreme Court said, “It is our view that equity was definitely selected as an appropriate forum and the appellants are not now entitled to lift the cause from the court they asserted to be the only one with sufficient jurisdiction to afford complete relief.”
As a matter of fact, Rice actually held that a chancery court judgment granting the appellant immediate possession of property sought by eminent domain was subject to collateral attack because the court lacked jurisdiction. In addition to the uncertainty cast by that case, the situation in the instant case, in my judgment, is not at all like the case quoted from in Rice. Here, the appellants, as they had the right to do, have nonsuited the complaint they filed for specific performance. The only cause of action left is not cognizable in equity. We are today holding that this case should be remanded for a new trial. Surely it would not be wrong to order this matter transferred to law where appellants can have a trial by jury which the Supreme Court of this state has so long recognized is their constitutional right.
Cracraft and Corbin, JJ., join in this concurrence.