The opinion of the court was delivered by
John P. Moon brought an action against John P. Dill to recover possession of ñve acres of land in Grеenville county. Dill denied plaintiff’s right, setting up title in himself. Each claimed under different grantors, but nothing further appears as to the manner in which Dill came into possession. The cáse was heard July 18th,'1878, and the
“ Because the plaintiff was entitled to the stay prayed for as of right, and it is respectfully submittеd that his Honor, the presiding judge, was without discretion and erred in refusing the order prayed for.”
It does not аppear upon what ground the Circuit judge refused the motion, but it is insisted here that his order was “ intermediatе,” which did not involve the merits of the action, nor affect any substantial right in said action, but related only tо á matter of procedure, and is not appealable. It is true that an order involving merely the exercise of discretion on the part of the court is -not appealable, as error of law cannot be alleged against such an order. But it appears to us that this order denied a substantial right. The words of the amendment to'the code of 1873 are “involving the merits,” and it has been held that an оrder refusing a motion to transfer a case to the county where the defendants resided, after the law upon that subject had been changed, was a denial of a substantial right secured by statute, and аppealable. Blakely & Copeland v. Frazier et al., 11 S. C. 123.
What is said in that case is applicable to this: “ The word 4 merits ’ naturally bears the sense of including all that the party may claim of right in refеrence to his case. * * * It may be concluded that whenever a substantial right of the party to an action material to obtaining a judgment in such action is denied, a right of appeal lies to this court.”
Did the refusal of the order deny to Dill, who had lost the land in the case of Moon against him, anything which he сould claim of right in reference to his case ? That must depend upon the question whether the faсts of his case brought it within the provisions of the act of 1870, (Gen. Slat. 559,) in regard to im
“ Section 4. The court, on the entry of such action, shall stay all proceedings upon the judgment obtained in the prior action until a final judgment shall be rendered in this action,” &c.
Within the time and in the manner prescribed, Dill claimed the right given by the first section of the act, and made a motion to stay all proceedings in the case of John P. Moon against him until the trial of the case, which was refused. Clearly, Dill had the right under the statute to have the case suspended, if he held, as a purchaser, a title which he had reason to believе was good. It is not alleged that he entered on the land by virtue of a contract with the legal owner, Moon, who had performed such contract on his part. Nor does it appear that he wаs a mere trespasser.
“Dill denied plaintiff’s title, setting up title in himself.” That was not precisely in the words of the act that he “ had purchased the lands, supposing at the time of such purchase such title to bе good in fee,” but it does appear that each claimed under a different grantor, which, considering the purpose of the act, was equivalent to a claim as purchaser. It is not to be аssumed that the title under which the improvements were made was fraudulent or pretensive. It must be considered to be bona fide until the contrary is made to appear, and there is nothing tending to negative the clаim that he held under a title which he supposed to be good. Fraud is not lightly presumed. In the absence оf proof to the contrary, the court assumes that the