The opinion of the Court was delivered by
Mr. Chief Justice McIver.
The plaintiff brought this action for the partition of a tract of land, containing about 130 acres, alleging that he was entitled to one undivided third interest therein, the defendant being the owner of the remaining two-thirds, and claiming an account for the rents [122]*122and profits received by the defendant. The defendant answered, denying that plaintiff had any interest in the land, and claiming that he was the sole owner of the same. The case was heard by his Honor, Judge Ernest Gary, who referred the issue of title raised by the pleadings to the jury for trial. The jury rendered a verdict in favor of the plaintiff for one-third interest in the land described in the complaint. Thereupon the defendant moved for a new trial, and • for judgment, notwithstanding the verdict, both of which motions were refused, and the Circuit Judge granted an order in the following form: “That a writ of partition do forthwith issue by the clerk of this court directed to fit and suitable persons, directing them to go upon said premises and admeasure and lay out unto the plaintiff one-third part thereof, and to the defendant two-thirds thereof, their respective interests in said premises, according to law and the practice of this Court. Further ordered, that it be referred to the master of Sumter County to take testimony and determine the rents and profits, and report the same to this Court with all convenient speed.”
■ From this judgment the defendant appeals upon'the several grounds set out in the record, which, together with the charge of the Circuit Judge to the jury, should be incorporated in the report of this case. These exceptions or grounds of appeal present the following questions for the decision of this Court: ist. Whether there was error in refusing the motion for a nonsuit. 2d. Whether there was error in refusing the motion for judgment non obstante veredicto; in favor of defendant. 3d. Whether the Circuit Judge erred in invading the province of the jury by charging on the facts. 4th. Whether .the Circuit Judge, in his charge, limited the jury to finding for the plaintiff a one-third interest in the land; and, if so, whether he erred in so doing. 5th. Whether the seventh exception can be sustained. 6th. Whether there was error in the form and scope of the order for writ of partition. 7th. Whether there was error in that portion of the order directing the [123]*123master to take an account of the rents and profits, in not providing that the defendant should have credit for the taxes paid on the land.
1 ist. As to the motion for a nonsuit. It does not seem to us that a motion for a nonsuit is appropriate in a case like this. Where, in an action for partition, one or more of the defendants sets up an independent title in himself, claiming the sole ownership of the premises sought to be partitioned, the question of title thus presented must first be de~ termined, and that can be done only by the verdict of •a jury, unless that mode of trial is waived. A judgment of nonsuit is not a final determination of the issue of title, and as that is the object sought to be attained, it does not seem to us that a motion for a nonsuit can, properly, be entertained in a case like this. " If the actor in the issue of title offers no testimony tending to establish his claim, the verdict of the jury against him would necessarily follow; and that would finally determine the issue of title, unless it was set aside by proper authority. So that no harm can come from refusing to entertain a motion for nonsuit in a case like this. In support of these views see separate opinion in McClenaghan v. McEachern, 47 S. C., 451, and the case of Woolfolk v. Graniteville Manufacturing Company, 22 S. C., 332, therein cited. The case of Brock v. Nelson, 29 S. C., 49, cited by counsel for appellant, is not in conflict with our view. For in that case, the defendants, Sullivan & Bro., who raised the issue of title, waived their right to have such issue tried by a jury, and hence the whole case was before the Circuit Judge for trial of'all the issues presented therein; and he, being satisfied that the plaintiffs had failed to show that the tract of land in question ever constituted any part of the estate of intestate of which the plaintiffs, as his heirs, demanded partition, granted an order which, though in form sustaining the motion for a nonsuit, was in fact a judgment in favor of the defendants, Sullivan & Bro., and was so treated by the Supreme Court.
[124]*1242 [123]*123Besides, we are of opinion that some testimony was of[124]*124fered by the plaintiff tending to show that he was entitled to a one-third interest in the land in question, and, therefore, upon that ground also there was no error in refusing the motion for a nonsuit, even if such a motion is appropriate in a case like this. There was testimony tending to show that the land in question constituted a part of the real estate of one Tempe Dunn, of which she and those claiming under her were in the undisputed possession for a period exceeding twenty years; that as far back as the year 1871, a tract of land containing 217 acres, which was a part of the re'al estate of the said Tempe Dunn, became vested in five of her children; that by subsequent transfers, Phillip Dunn, one of said children, acquired a two-fifths interest in said tract, and Susan Barnes, another of said children, became vested with another two-fifths of said land, and the remaining one-fifth remained vested in Eadie Dunn, another of said children; that subsequently, by a parol partition, the two-fifths interest of said Phillip Dunn was laid off to him, leaving the remaining 130 acres, in round numbers, disregarding fractions, vested in Susan Barnes and Eadie Dunn, in the proportion of two-thirds to Susan Barnes and one-third to the said Eadie Dunn — one-third of 130 acres being, substantially, equivalent to one-fifth of 217 acres; that subsequently the interest of Susan Barnes was sold and conveyed to the defendant, Rodgers, under proceedings to foreclose a mortgage, executed by one W. S. Barnes, a son of said Susan Barnes, with her consent and approval, to Hearon Brothers, and by them transferred to the Atlantic Phosphate Company; for while it is true that said mortgage purported to cover the whole of the 130 acres, yet as it did not appear that Susan Barnes had ever acquired the interest of her sister, Eadie Dunn, therein, nothing but the interest of the said Susan Barnes could be sold under said mortgage; and that after the death of the said Eadie Dunn, her heirs conveyed such interest to the plaintiff, which as we have seen was, practically, an undivided third part of the 130 acres remaining after the two-fifths interest in the 217 acres of Phil[125]*125lip Dunn had been laid off to him by the parol partition. So ■that it is very clear that there was testimony sufficient to •carry the case to the jury, and which, if viewed by the jury in the light in which we have presented it, was quite sufficient to sustain their verdict.
3 To dispose of the second question, it is only necessary to refer to the case of Bowdre v. Hampton, 6 Rich., 208, in which it was held that judgment non obstante veredicte can be rendered only for a plaintiff; ■ and hence there was no error in refusing defendant’s motion for such a judgment.
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The opinion of the Court was delivered by
Mr. Chief Justice McIver.
The plaintiff brought this action for the partition of a tract of land, containing about 130 acres, alleging that he was entitled to one undivided third interest therein, the defendant being the owner of the remaining two-thirds, and claiming an account for the rents [122]*122and profits received by the defendant. The defendant answered, denying that plaintiff had any interest in the land, and claiming that he was the sole owner of the same. The case was heard by his Honor, Judge Ernest Gary, who referred the issue of title raised by the pleadings to the jury for trial. The jury rendered a verdict in favor of the plaintiff for one-third interest in the land described in the complaint. Thereupon the defendant moved for a new trial, and • for judgment, notwithstanding the verdict, both of which motions were refused, and the Circuit Judge granted an order in the following form: “That a writ of partition do forthwith issue by the clerk of this court directed to fit and suitable persons, directing them to go upon said premises and admeasure and lay out unto the plaintiff one-third part thereof, and to the defendant two-thirds thereof, their respective interests in said premises, according to law and the practice of this Court. Further ordered, that it be referred to the master of Sumter County to take testimony and determine the rents and profits, and report the same to this Court with all convenient speed.”
■ From this judgment the defendant appeals upon'the several grounds set out in the record, which, together with the charge of the Circuit Judge to the jury, should be incorporated in the report of this case. These exceptions or grounds of appeal present the following questions for the decision of this Court: ist. Whether there was error in refusing the motion for a nonsuit. 2d. Whether there was error in refusing the motion for judgment non obstante veredicto; in favor of defendant. 3d. Whether the Circuit Judge erred in invading the province of the jury by charging on the facts. 4th. Whether .the Circuit Judge, in his charge, limited the jury to finding for the plaintiff a one-third interest in the land; and, if so, whether he erred in so doing. 5th. Whether the seventh exception can be sustained. 6th. Whether there was error in the form and scope of the order for writ of partition. 7th. Whether there was error in that portion of the order directing the [123]*123master to take an account of the rents and profits, in not providing that the defendant should have credit for the taxes paid on the land.
1 ist. As to the motion for a nonsuit. It does not seem to us that a motion for a nonsuit is appropriate in a case like this. Where, in an action for partition, one or more of the defendants sets up an independent title in himself, claiming the sole ownership of the premises sought to be partitioned, the question of title thus presented must first be de~ termined, and that can be done only by the verdict of •a jury, unless that mode of trial is waived. A judgment of nonsuit is not a final determination of the issue of title, and as that is the object sought to be attained, it does not seem to us that a motion for a nonsuit can, properly, be entertained in a case like this. " If the actor in the issue of title offers no testimony tending to establish his claim, the verdict of the jury against him would necessarily follow; and that would finally determine the issue of title, unless it was set aside by proper authority. So that no harm can come from refusing to entertain a motion for nonsuit in a case like this. In support of these views see separate opinion in McClenaghan v. McEachern, 47 S. C., 451, and the case of Woolfolk v. Graniteville Manufacturing Company, 22 S. C., 332, therein cited. The case of Brock v. Nelson, 29 S. C., 49, cited by counsel for appellant, is not in conflict with our view. For in that case, the defendants, Sullivan & Bro., who raised the issue of title, waived their right to have such issue tried by a jury, and hence the whole case was before the Circuit Judge for trial of'all the issues presented therein; and he, being satisfied that the plaintiffs had failed to show that the tract of land in question ever constituted any part of the estate of intestate of which the plaintiffs, as his heirs, demanded partition, granted an order which, though in form sustaining the motion for a nonsuit, was in fact a judgment in favor of the defendants, Sullivan & Bro., and was so treated by the Supreme Court.
[124]*1242 [123]*123Besides, we are of opinion that some testimony was of[124]*124fered by the plaintiff tending to show that he was entitled to a one-third interest in the land in question, and, therefore, upon that ground also there was no error in refusing the motion for a nonsuit, even if such a motion is appropriate in a case like this. There was testimony tending to show that the land in question constituted a part of the real estate of one Tempe Dunn, of which she and those claiming under her were in the undisputed possession for a period exceeding twenty years; that as far back as the year 1871, a tract of land containing 217 acres, which was a part of the re'al estate of the said Tempe Dunn, became vested in five of her children; that by subsequent transfers, Phillip Dunn, one of said children, acquired a two-fifths interest in said tract, and Susan Barnes, another of said children, became vested with another two-fifths of said land, and the remaining one-fifth remained vested in Eadie Dunn, another of said children; that subsequently, by a parol partition, the two-fifths interest of said Phillip Dunn was laid off to him, leaving the remaining 130 acres, in round numbers, disregarding fractions, vested in Susan Barnes and Eadie Dunn, in the proportion of two-thirds to Susan Barnes and one-third to the said Eadie Dunn — one-third of 130 acres being, substantially, equivalent to one-fifth of 217 acres; that subsequently the interest of Susan Barnes was sold and conveyed to the defendant, Rodgers, under proceedings to foreclose a mortgage, executed by one W. S. Barnes, a son of said Susan Barnes, with her consent and approval, to Hearon Brothers, and by them transferred to the Atlantic Phosphate Company; for while it is true that said mortgage purported to cover the whole of the 130 acres, yet as it did not appear that Susan Barnes had ever acquired the interest of her sister, Eadie Dunn, therein, nothing but the interest of the said Susan Barnes could be sold under said mortgage; and that after the death of the said Eadie Dunn, her heirs conveyed such interest to the plaintiff, which as we have seen was, practically, an undivided third part of the 130 acres remaining after the two-fifths interest in the 217 acres of Phil[125]*125lip Dunn had been laid off to him by the parol partition. So ■that it is very clear that there was testimony sufficient to •carry the case to the jury, and which, if viewed by the jury in the light in which we have presented it, was quite sufficient to sustain their verdict.
3 To dispose of the second question, it is only necessary to refer to the case of Bowdre v. Hampton, 6 Rich., 208, in which it was held that judgment non obstante veredicte can be rendered only for a plaintiff; ■ and hence there was no error in refusing defendant’s motion for such a judgment.
4 As to the third question, we do not see anything in the Judge’s charge violative of the constitutional provision forbidding a charge upon the facts. ■ In the first place, the jury were distinctly instructed in the outset of the case, that they were to inquire: “Is the plaintiff entitled to one-third, or any, interest in that land described in the complaint? You try the question whether the plaintiff is entitled to any interest in this land ? If you find that he is the owner, what part?” And when, after the close of the testimony and the arguments, the Circuit Judge in his charge used the expressions, quoted in the exceptions, .upon which this question is raised, it is very manifest that the Circuit Judge was not expressing or even intimating his own opinion as to the extent of the plaintiff’s right, but only explaining to them what was plaintiff’s claim. Indeed, we are of opinion that an examination of the charge will afford a complete vindication from the charge of error in invading the province of the jury. The fourth question is disposed of •by what we have said in regard to the third question; for we do not think that the Circuit Judge limited the jury in any way in regard to the extent of their finding, if they should conclude to find anything for the plaintiff. He simply explained to the jury what was the plaintiff’s claim, and left it to them to say whether such claim was established in whole or in part; and even if he had, we do not see that there was any error in so doing, for the only claim that the [126]*126plaintiff made was for an undivided one-third of the 130 acres, and, in our judgment, the only question for the jury was whether such claim had been established by the testimony.
5 As to the fifth question, we do not see that the seventh exception is tenable. The plaintiff was not suing for the recovery of any specific number of acres of land, but, on the contrary, his action was for partition of a tract of land described in the complaint, containing 130 acres, in which he claimed a one-third interest, and when the jury returned a verdict in his favor for “one-third interest in the land,” his right to have partition of the same necessarily followed.
6 The sixth question is as to the sufficiency of the form and scope of the order for the writ of partition — the defect claimed being that it did not provide, in terms that, if the commissioners in partition should be of opinion that the land could not be fairly and equally divided between the parties without manifest injury to one or the other of them, that they should make a special return, appraising the value of the property, and certifying their opinion whether it would be most for the benefit of all parties to deliver to one of the parties the whole property, upon the payment of a sum of money to be assessed by the commissioners, or to sell the same and divide the proceeds between the parties according to their respective rights. While the statute (sec. 1950 of the Rev. Stat. of 1893) does provide that these provisions shall be inserted in the writ of partition for the guidance of the commsisioners in the performance of their duties, we know of no law or practice requiring such provisions to be inserted in the order for the writ of partition to issue, and we are unable to perceive any necessity'to encumber the order, with any such provisions, especially where the order, as in this case, requires the writ to be issued “according to law and the practice of this Court.” It is clear, therefore, that the exception raising this point cannot be sustained.
[127]*1277 The only remaining inquiry is the seventh, which raises the point that in the order directing the master to take the account of rents and profits, there was error in omitting to provide that upon such accounting, the defendant should be allowed credit for any taxes which may have been paid by him on the land. While the order, liberally construed, may possibly be regarded as sufficient to allow such credits on the accounting, yet, to avoid any misapprehension, it may, perhaps, be best to modify the order in this respect, so as to require the master in taking the account of the rents and profits to allow the defendant credit for the amount of any taxes on the land which he may have paid.
The judgment of this Court is, that the judgment of the Circuit Court, as modified herein, be affirmed.