Reese's Admr. v. Youtsey , 113 Ky. 839 ( 1902 )

Opinion of ti-ie court by

JUDGE WHITE

Affirming.

This was an action in equity to'cancel a deed executed by America Reese to appellees, upon the ground that the same was procured by fraud; that the grantor in the deed was induced to believe, and did believe, that she was making a will, when in fact the writing that she signed was a deed. After the proof had all been taken by deposition, appellant asked that the issues of fact be submitted to and tried by a jury. The court, overruled that motion, and the < ase was submitted and tried by the court, who adjudged that, the petition be dismissed, and hence this appeal.

Counsel presents for our consideration the action of the court in refusing a jury trial, and insists that this action was prejudicial error, requiring a reversal. The cause of action was purely equitable, and while it depended on - an issue of fact as to ihe existence of fraud in procuring the deed, there was no legal issue that was triable at law presented. Upon this issue of fact presented by file pleadings. the chancellor might have1 called to his aid a jury, but lie was not compelled to do so. Kennedy v. Ten Broeck, 11 Bush, 241; Blakey v. Johnson, 13 Bush, 197, 26 Am. Rep., 254; Hill v. Phillip's Adm’r, 87 Ky., 169 (10 R., 31) 7 S. W., 917. The right of trial by jury guaranteed to the citizen by the Constitution was the right as it existed at common law and in common-law courts. The Code of Practice has not changed this rule as to cases purely cgnizable in equity. If, in any equity case, a legal issue arises — one that was or is ever 1 viable by a jury as of right —then either party may demand that the issue he tried by a jury. Ko such issue was here presented. There was no error, and. in our opinion, no abuse of discretion, in refusing to impanel a jury in this ease. Upon the merits, appellant failed to sustain his causey and the judgment was proper.

Judgment affirmed.