¶1I am obliged to dissent from the conclusion reached by RAILEY, C., in this case, because the action is one at law and the relief granted by the judgment is purely equitable.
¶2The character of the action brought under Section 1970, Revised Statutes 1919, to determine title, is settled by the issues which the pleadings raise. If the petition *392 states an action in equity, or, if the answer pleads equitable defenses and asks affirmative relief, it is an action in equity with all the incidents of an equitable proceeding, including a right to equitable relief. If the suit is an action at law, all the incidents of an action at law will pertain to it, including the right of the trial by jury, etc. [Sawyer v. French, 290 Mo. l.c. 384; Hauser v. Murray, 256 Mo. l.c. 84; Citizens Trust Co. v. Going, 288 Mo. l.c. 511; Koehler v. Rowland, 275 Mo. l.c. 581.]
¶3The petition in this case states simply an action at law. The answer sets up an equitable defense, but asks no equitable relief, therefore it is strictly an action at law under the authorities cited. The judgment of the trial court, however, on finding apparently that by mutual mistake the defendant had acquired title to land which belonged to the plaintiff, proceeded to divest the title of defendant and vest the same in the plaintiff, Giles Hunt, which the court, under the pleadings, had no right to do.
¶4The learned Commissioner very ably collated the authorities and stated the principle of law pertaining to the facts in this case, and correctly reached the conclusion that on the facts the plaintiff is entitled to recover.
¶5While we should be extremely liberal in granting all the relief which the circumstances of the case warrant, we are not authorized to violate the rules of pleading in granting relief to which the petitioner is not entitled on the allegations of his petition. To do so would be to break down at once all rules of pleading, so that there need be no precision of statement in stating the case, and no certainty as to what issues might be tried under a given pleading.
¶6Section 1970 allows anyone claiming an interest in real estate to bring his action under that section. The judgment of the trial court under the pleadings should have been to determine the rights and interests of the parties and adjudge that interest, which would in fact establish an equitable title and not a legal title in the plaintiff, Giles Hunt. *393
¶7In this view of the case it is unnecessary to consider the defects in the abstract of the record, or even consider whether there is any proper bill of exceptions, because the error appears on the record proper.
¶8The judgment should be reversed and the cause remanded and the trial court either may enter judgment in accordance with the pleadings, or may permit plaintiffs to amend their petition so as to pray for equitable relief and try the case again.