23 S.C. 388 | S.C. | 1885
The opinion of the court was delivered by
David Hall, late of Anderson County, died in 18 — , leaving a will in which, among other devises and bequests, he devised certain tracts of land situate in
Shortly after this division, to wit, on May 21, William C. was killed in battle at Jackson, Miss., intestate, unmarried, and without issue; and during the same year, to wit, in August, 1863, his brother, John M., died, intestate, unmarried, and without issue, leaving Absalom J. the sole survivor of the three brothers. The entire lands then, as it appears, went into the possession of Absalom, who sold a portion of the William C. Hall tract, to wit, about one-half in value, to one Jonathan Adams, leaving’ about* 175 acres, the balance of the William C. Hall tract, which, on the death of William 0., it was supposed had gone under the will of David to John M. Hall. On the death of John M., Absalom being indebted, to one O. H. P. Fant, and supposing that upon the death of John M. he had become the sole owner of the lands in question, on June 5, 1871, mortgaged said land, including the 175 acres mentioned above, to the said Fant. Under proceedings for the foreclosure of this mortgage in December, 1879, this 175 acres was sold and purchased by one Mrs. E. C. Bell, who subsequently sold and conveyed the same to the defendant, Lemuel M. Hall.
Under this state of facts, which are all set out in the complaint, the action below was instituted in June, 1883, the plaintiffs claiming that under the will of their grandfather, David Hall, the tract of land which William C. Hall took in the division went, upon his death, one-half to each of his surviving brothers, to wit, to John M. and Absalom J., and that upon the death of John M., unmarried, and without issue, the share of John M. therein descended to his heirs at law, including the
The case came up for trial before his honor, Judge B. C. Pressley, February, 1885, when a motion for an issue at law to try the titles to said land made by plaintiffs’ attorneys being refused, an order, on motion of the attorneys of the defendant, Lemuel'M. Plall, was passed, ordering as follows: “That the complaint be dismissed as to said defendant, on the ground that this court, sitting in chancery, has no jurisdiction'to try titles to real estate in a case in partition. And it appearing to the court from the complaint and answer of the said defendant, L. M. Hall, that the said defendant claims titles in his own right; now, on motion of Murray, Breazeale & Murray, attorneys for L. M. Hall, it is ordered that the complaint herein he dismissed as to the defendant, L. M. Hall, and that he be allowed-his proper costs and charges.”
The plaintiffs excepted, and have' appealed upon various grounds, all alleging in substance error to the judge in refusing the motion for an issue at law and dismissing the complaint as to the defendant, Lemuel M. Hall.
But the action was in no sense an action for the recovery of real estate in the nature of an action of ejectment, or of trespass to try titles. It was strictly an action in partition, based upon the plaintiffs’ construction of the will of David Hall and the rights of Lemuel M. Hall in the land, arising upon his purchase from Mrs. E. C. Bell. And the right of the plaintiffs to the partition demanded depended upon the fact whether they had properly construed said will and the sale under the foreclosure proceedings. In their view, upon the death of William C. Hall, one-half of the land which he took in the division made under the will of his father went to John M., which, upon his death, became subject to partition among his heirs at law, Absalom being one of these heirs, whose interest was sold under the foreclosure proceedings, and finally reached the defendant, Lemuel M. Hall, thereby making him a tenant in common with the other heirs to the extent of Absalom’s interest. And upon this ground they claimed partition, the complaint being filed for this purpose,
The case then came before the Circuit Court as a plain and simple case for partition on the part of the plaintiffs, with a statement of the facts upon which they relied. These facts were' not denied by the defendant, Lemuel M. Hall, but the legal conclusion arising therefrom, and claimed by the plaintiffs, was contested, and, in addition, said defendant set up an independent' title under the statute of limitations, thereby raising a legal issue. The case, then, upon the answer, assumed the attitude of a case in chancery for partition by the plaintiffs, met by a legal defence on the part of the defendant, Lemuel M. Hall, the one' subject to trial by the court, and the other to trial by a jury. In. such a case, under the old practice, an issue at law would no doubt have been ordered, but under the.principles in the code,, and the decided cases in our State since the adoption of the code, a. special issue would be unnecessary, and the court, upon the plead-' ings, could proceed with the trial of both the issues — that raised, in the answer before a jury, and that in the complaint by the court, unless the jury trial rendered the court trial unnecessary.; See Adickes v. Lowry, 12 S. C., 108; Smith Co. v. Bryce, 17 Id., 544; Chapman v. Lipscomb, 18 Id., 232.
• Under these authorities we think it was error off the part of the Circuit Judge to dismiss the complaint as to the defendant,' Lemuel M. Hall. The proper practice would have been to have' transferred the issues of title raised in the answer to calendar 1 so as to be tried by a jury, unless a jury trial was waived by the parties, leaving the equity question of partition to be determined by -the court, dependent upon the result of the said jury trial.. And to this end the judgment below should be reversed.
It .is the judgment of this court that the judgment of the Circuit Court be reversed, and that the case be remanded for a new trial as above.