This is an action in equity brought in the court below by the defendant in error against the plaintiff to quiet the title to certain real estate in the city oí Lincoln.' One Luke Lavender is the common source of title, and both parties claim title under sales upon execution of the interest of said Lavender. The case was referred by consent to a referee, who found all the issues in favor of the defendant in error. Exceptions were filed to the report, which were overruled, and a decree rendered confirming the report. The testimony tends to show that the plaintiff in error was in possession of the premises, and the defendant out of possession, and it is claimed that therefore the action cannot be maintained. There is no doubt that the proper remedy of a party out of possession of real estate and holding the legal title to the same is ejectment. He, as well *412as the party in possession, is entitled to two trials and to a jury, to determine the facts. But the right to trial by jury or to a second trial is a personal privilege that may be waived. If the plaintiffs in error had filed an answer alleging- that the defendant in error was not in possession of the premises, and that the plaintiffs in error were in possession, and denying the right of the defendant in error to proceed in equity, it is probable the defendant in error would have been required to amend its petition and proceed at law. But instead of this we find that the plaintiffs in error have set up in their answer all the steps in the proceedings by which they acquired title, and the court was in effect asked to enter a decree that their title was paramount and superior to that of the defendant in error. That the court had jurisdiction in such case there can be no doubt. ■
II. The judgment under which the defendant in error derives title was docketed in the office of the clerk of the district court of Lancaster county on the 5th day of August, 1873, while that under which the plaintiffs in error claim title was docketed on the 7th day of July, 1874. The lien of the defendant’s judgment, therefore, was prior to that of the plaintiffs in error, and it acquired the title by a sale on execution issued on the judgment. The attorney for the plaintiffs in error claims that an injuuction was obtained by Lavender against the judgment under which the defendant in error claims title, but the record shows the action was dismissed before judgment, am¿- it does not enter into the case. There is no error in the record available to the plaintiff in error. The judgment must therefore be affirmed.
Judgment aeeiemed.
The other judges concur.