The case was tried upon oral testimony, and according to. the second method of trying equitable causes, against the objection of the defendants, who excepted at the time. Afterwards he made the same objection the foundation of a motion for a new trial, which was again overruled. It should have prevailed. The proceeding was not' an ordinary foreclosure. The point of the controversy does not relate to any matter arising upon the mortgage itself, or the justness of the debt which it was given to secure, respecting which there was no dispute, but to the restoration of rights lost under the same by the fraudulent acts and declarations of the defendant, J. H. Legg.
The plaintiff had been induced to surrender the notes and security aforesaid, in exchange for the fee simple title of the land mortgaged, and the false and fraudulent representation of the defendant that he had a clear and unencumbered title thereto.
The gist of the complaint is the fraudulent character of this transaction, and the prime object of the proceeding is to obtain relief against the same, and to revive the plaintiff’s rights under the mortgage, by giving effect to the latter.
The inquiry as well as the object proposed by the proceeding address themselves to the plenary jurisdiction of *487a court of equity, and could only be tried according to tbe first method specified for the trial of equitable causes, in the absence of any agreement to the contrary, which is not pretended to have been made. The circumstance, that the plaintiff also asks a foreclosure of his mortgage in the event he is restored to his rights under the same, is but secondary, and does not alter the general character or aim of the proceeding. The judgment must be reversed, and the cause remanded for a new trial.
Reversed.