46 S.C. 193 | S.C. | 1896
Lead Opinion
The opinion of the court was delivered by
The action in this case was commenced on the 23d December, 1892, and the amended complaint, upon which the case was heard, was served on 30th of January, 1894. The object of the action was to obtain partition of a certain tract of land described in the first paragraph of the amended complaint, which, it was alleged, was held by plaintiffs and defendant as tenants in common. In the second paragraph of the amended complaint plaintiffs allege “that ninety-nine acres of said land descended to the plaintiffs and the defendant from their father, and the balance of said tract was purchased by the defendant with the money of these plaintiffs, and he now holds said lands as the trustee of these plaintiffs.” In the third paragraph of the complaint, the plaintiffs simply set forth the shares, which they allege each of the said parties are entitled to in the said lands. All of these allegations are denied in defendant’s answer, in which he alleges “that he is in possession of said land under good and valid titles from the court of probate for said State and county, by virtue of proceedings in said court for the sale thereof, as the property of James Hughey, deceased, the father-of the plaintiffs, Nannie Jones and Fannie Dyke, and of this defendant, and the grand-father of the Filis plaintiffs; and that he is seized and possessed of same as his own proper estate, and that the plaintiffs have no claim of right or interest therein.” Upon these pleadings and the evidence set out in the “Case,” his honor, Judge Buchanan, heat'd the case, and rendered his decree, in which, without- stating any reasons, or indicating any testimony, upon which he based his conclusions, he found as matter of fact: “1st. That the money which purchased the land belonged to the defendant, and to Nannie Jones, Edna Ellis, and Fannie Dyke, his sisters. 2d. That the land was purchased by the said defendant under an agreement that he would hold the same
From this judgment defendant appeals upon the several grounds set out in the record, which, under the view we take of the case, need not be stated here in detail.
The judgment of this court is, that the judgment of the Circuit Court be reversed.
Dissenting Opinion
dissenting. The complaint alleges that the plaintiffs and defendant are tenants in common of the land therein described.
The Circuit Judge found as matter of fact that the plaintiffs and defendant had interests in said land in the proportion stated by him. The pleadings raised an issue for trial on the law side of the court, but a jury trial was waived. The findings of fact by the Circuit Judge as to the issue of title is not the subject of review by this court. Peoples v. Cummings, 22 S. E. R., 730; Capell v. Moses, 36 S. C., 559.
I, therefore, dissent from the opinion announced by the majority of the court.