Gerstle v. Vandergriff

Hughes, J. (after stating the facts). It is contended by appellant that the plaintiff’s remedy was purely legal, and that the court should have dismissed the suit for the want of equity, citing Sandels & Hill’s Digest, § 6121. But it is uncertain whether either had actual possession. The defendant made no motion to transfer the cause to the law docket, but submitted to trial in equity, and, having failed there, he now for the first time in this court objects that there was no jurisdiction in equity. He waived his right to, a jury trial by not moving to transfer the case to the law docket. Love v. Bryson, 57 Ark. 589; Burke v. St. Louis, I. M. & S. Ry. Co., ante, p. 256. It is contended that the court erred in offsetting the rents received by defendant after the institution of this suit against the taxes, etc., paid by the appellant. He did not object below that no tender of taxes, etc., had been made before the beginning of the suit, but he set up and claimed title to the land, and denied plaintiff’s right to recover at all. He waived the tender of taxes, etc., before suit was brought. The defendant did not ask for taxes, but for the possession of the land, and claimed title to it. The court made an equitable settlement of the taxes in the rents and profits of the land received by him after this suit was brought, and he ought not to be heard to complain. We find no reversible error in the decree, and the same is affirmed.