(dissenting). I do not concur in the opinion or judgment of the majority of the court. The disposition we are required to make of this case depends, in the first place, upon whether the case tried below, in which the writ of error was allowed, was an issue out of chancery, or an independent action at law to try title. If it was the former, it is not properly before us, and cannot be until there is a final decree in the chancery case; if the latter, then it is before us on writ of error to the rulings of the court below, and I think we should consider the exceptions and assignments of error. So far as the pleadings in the record disclose, there is nothing to connect this case with any suit in equity. It begins, like any common-law action, with a summons commanding the Cranberry Iron & Coal Company to appear and answer the complaint of J. Evans Brown and William B. Carter. The complaint filed alleges that the plaintiffs are each seised in fee simple of an undivided fourth interest in the mines, minerals, and mineral interests in certain described lands, and that the defendant is wrongfully and unlawfully in possession, and withholds the same from the plaintiffs; and the plaintiffs demand judgment that they be let into possession of the said undivided one-half interest, and for damages and costs. The defendant answered, alleging that it was sole owner of the land described, and of all the mineral interests therein, and it also filed a special plea, in which it alleged that its grantors had obtained from the plaintiff Brown, in 1867, a deed intended to grant all his (the said Brown’s) mineral interest in the land in suit under the circumstances set out in the plea, which estopped the plaintiffs from making any claim whatever to said property. A jury was impaneled to try the issue made by the pleadings between the parties, and, after hearing the evidence and receiving the instructions of the court, the following question was submitted to the ju/:y *640for their verdict: “Are the plaintiffs estopped by their acts, declarations, or otherwise from claiming any interest in the mines and minerals in the land described in the complaint?” The jury, for their verdict, answered, “Yes.” Thereupon judgment was entered that, the plaintiffs were not the owners of an undivided one-half interest in the mines and minerals in the lands described in the complaint, and that they take nothing by their writ, and that the defendant have judgment for its costs. It was further “adjudged” that said finding, together with all the evidence and the charge of his honor, be forthwith reported to the court of equity. This is the first reference anywhere in the record to any equity suit, except that some allusion is made to it in the judge’s charge. Bills of exceptions were signed by the judge, and a writ of error was allowed as in actions at law. There is nothing in the record to show that the case tried by the jury was an issue out of chancery sent to a court of law to be tried in order to inform the conscience of the chancellor; on the contrary, except from some allusions by the judge in his charge and the order that the findings, evidence, and charge be reported “to the court of equity,” we should not know there had been any equity case connected with this litigation. From the briefs of counsel, we gather that a suit for partition had been instituted in equity by Brown and Carter against the Cranberry Iron & Coal Company, and that the defendant corporation in that suit, by its answer, denied that Brown and Carter had any interest in the land; and thereupon, as the briefs state, the court required the complainants to bring an action against the respondent at law to try title. If we are to take these statements from the b,riots of counsel on both sides as informing us that there were partition proceedings in an equity court prior to the instituting .'of the present suit, it would seem that the equity court proceeded properly. If a suit is instituted'for partition by a complainant whose right to partition is denied because he is alleged to have no title or interest in the premises as to which partition is prayed, it is the duty of the equity court either to dismiss the bill, or to retain it for a reasonable time to afford the complainant an opportunity of establishing his title at law. The rule is that a party whose title is disputed or is suspicious must establish his title at law before he comes into chancery asking a partition. If he files his bill for partition, the equity court may, in its discretion, retain the bill until he has done that which he ought to have done before he filed it; and it must always be borne in mind that an equity court is not the proper tribunal to try title to land when the legal title is involved, and when no question to be determined is of peculiar equity cognizance. Hipp v. Babin, 19 How. 271; Lewis v. Cocks, 23 Wall. 466. Where the legal title is involved, the equity court does not send issues to be tried by a jury in order to ascertain the truth of disputed facts for its enlightenment, but lets the party who is out of possession bring his action of ejectment, and suspends its own proceedings until the legal title is made clear by the judgment of a court of law. 3 Pom. Eq. Jur. § 1385; 1 Story, Eq. Jur. § 653; 2 White & T. Lead. Cas. Eq. 900; 2 Daniell, Ch. Prac. *6411151, note 5; Cox v. Smith, 4 Johns. Ch. 271; Currin v. Spraul, 10 Grat. 145; Boone v. Boone, 3 Md. Ch. 497; Obert v. Obert, 10 N. J. Eq. 98; Read v. Huff, 40 N. J. Eq. 233.
As stated in Watt v. Starke, 101 U. S. 250:
“Whore a court of chancery suspends proceedings in a cause in order to allow parties to bring an action at law to try the legal title, it does not assume to interfere with the course of proceedings in the court of law, and a motion for a new trial must be made to that court; hut, when it directs an issue to be tried at law, a motion must be made to the court of chancery.”
So it is the practice, when issues are sent to a court of law, to enter no judgment on the verdict, but the judge of the law court certifies to the chancellor what the verdict was. 2 i buriel], Ch. Brae. 1,139. The chancellor may disregard such a verdict, hut a judgment in an ejectment suit establishing title would stand upon a different footing.
Tn the case now before us, in my opinion we are not at liberty to consider whether there was set up by the defendant’s answer in an equity suit a title based upon matters properly cognizable in equity, such as made it proper for the equity court to proceed and adjudicate with regard to it, or as to which the chancellor might properly send issue's to he tried by a jury in a law court for his enlightenment as to a question of fact. We do not know from the record what, (he equity suit was, and have only before us in this record an action at law regularly began and tried, the verdict of the jury, the judgment of the court entered upon the verdict, and exceptions to the rulings of the court regularly taken during the progress of the trial, and brought hete by writ of error. In his charge to the jury lite judge began with some introductory remarks with regard to the commencement of the litigation in the equity court. These were mere side remarks which he himself told the jury to disregard, and told them that it was their duty to find the facts according to their own view of the evidence. The remarks of the judge on this subject were n«t excepted to. The issue submitted to the jury and their Verdict were sufficient to support the judgment for defendant, which was entered, and which was conclusive against the plaintiffs’ title. If the verdict could not he supported without a construction of the deed, and the plaintiffs’ case required an instruction to the jury as to the effect of the deed, then the verdict was a mistrial, and we should reverse. It seems to, me we must either affirm or reverse.
By plaintiffs’ twentieth instruction, the court was asked to say that the deed was no estoppel. The court refused this instruction, and gave no instruction covering it. That refusal was excepted to, and, if the jury were left to consider the deed, it was error, unless we are satisfied that the deed was an estoppel of itself. The issue put to the jury was: “Are the plaintiffs estopped by acts, declarations, or otherwise?” This issue might appear to have been broad enough to include estoppel by the deed, but the judge does not seem to have treated it so. Treating it as an issue of estoppel in pais, the construction of the deed was immaterial, and under that issue, when the jury found that the plaintiffs were estopped, the defendant was entitled to judgment. That judgment, in my opinion, is conclusive *642against the plaintiffs, unless they can show, under this writ of error, that there was error in some ruling during the trial of that issue. The opinion filed by the judge, after the judgment was entered, was a mere statement of his reasons for refusing the twentieth instruction, or for not granting a new trial, or for some other purpose of his own, and is not before us except as an argument in favor of some ruling he has made during the trial, and before the judgment entered. It is not in the bill of exceptions, and it could not be excepted to. The case was a trial by jury, and only what took place before the jury can be examined. If the case was not properly put before the jury or they were misdirected, we must reverse. What can the judge now do if we send the case back? The term at which the judgment was entered is past. He could not grant a new trial, and he could not now put anything more into the bill of exceptions, and we can never look at anything but what is in the pleadings and the bill of exceptions. The defendant, to succeed, was not obliged to show that the plaintiffs were estopped both by the deed and by their acts and declarations; either one was sufficient. If, irrespective of the construction of the deed, the acts of the plaintiffs estopped them, then the defendant had a right to rely on that estoppel in pais; and, if the jury found for the defendant on that issue, it was entitled to judgment without considering the deed. The judge was of this opinion, and, when the jury found the estoppel, he entered judgment on the verdict. If they had found for the plaintiffs on the question of estoppel, he would probably, as appears from his opinion, have not discharged them, but would have instructed them that the deed was itself an estoppel, and directed a verdict for defendant. The judge says hé had reserved that question, and it is plain he thought that the only issue submitted to the jury was the estoppel in pais, and that, when the jury found their verdict on the estoppel in pais, he considered that ended the controversy, and after-wards wrote out his views about the proper meaning of the deed, to show that he was right'in refusing the plaintiffs’ twentieth instruction.
I think the case is properly before us for examination of all the exceptions taken at the trial, and I am obliged to dissent from the opinion • of the majority of the court, holding the judgment is not final, or that the record is incomplete, and that the exceptions and assignments of error are not before us for our examination.