The only question made by this appeal is upon the sixth special finding by the jury, which was submitted by ' the court against defendants’ objections, and which the defend*630ants moved to set aside, and for judgment in their favor, notwithstanding the general verdict. The statement preceding this opinion shows the nature of the controversy and the issues involved. At the close of the evidence, the defendants submitted five special interrogatories for the jury to answer in their findings. They were:
First. Did the defendants receive the rent of plaintiffs’ land? Answer — No.
Second. Did they receive rent for a house and lot of deceased’s, over taxes paid? Answer — No.
Thvrd. How much did defendants receive and realize from the property left by deceased? Answer — $1,200.
Fourth. Did Knott make a gift of said property to Mahala? Answer — He did.
Fifth. How much of said property did she expend in support of herself and family? Answer — $300.
And the sixth, submitted by the court, is as follows: Did he give her said property absolutely or conditionally; and, if conditionally, upon what conditions ? Answer — Conditionally; those conditions were the support of herself and the children.
i. verdict: special find-tag. The objections to this sixth special finding are, that it is immaterial, and there was no issue upon which to base it. This whole action, though commenced and prose- . . . • ,. cuted as a law action, or ordinary proceeding, is essentially an equity action in all its characteristics. But if there is any misjoinder of causes of action, it was'waived by failure to object as provided for in Eev., Secs. 2846-7, Code, Sec. 2632-3; and if there is error as to the kind of proceedings, that was waived by failure to move for its correction at the proper time. Eev., Sec. 2619, Code, Sec. 2519. This leaves all questions of the rights of the plaintiffs, whether legal or equitable, open for inquiry in this case. And in this view, if the gift to the defendant, Mahala, was with a condition or trust in favor of the plaintiffs, an inquiry into it was material. The special finding was not, therefore, immaterial.
*631 2 pleading• absolute gift. *630As respects the issues, the defendants claim here that their *631averments in the answer assert an absolute gift, and not a conditional one. But under our practice, Eev., Sec.-2966, Code, Sec. 2729, a party is not compelled to. prove more than is necessary to entitle him to the relief asked for, or any lower degree included therein, nor more than sufficient to sustain his defense. Under the pleadings, therefore, of an absolute gift, the defendants might show a less title or right. So, under a denial of such absolute gift, the plaintiffs might show any lower degree of right in the defendants. The. special finding was, therefore, justified by the issues. But,, further than this, a fair construction of the pleadings themselves justifies it. The special findings are not at variance, with the general verdict.
Affirmed.