June 28, 1912. The opinion of the Court was delivered by This was an action for the recovery of real property heard before special judge Hon. Henry Mullins, and a jury at the spring term of the Court of Common Pleas for Lee County, in 1910. At the close of the evidence in the case, upon motion of defendant's attorneys, his Honor granted a nonsuit. The plaintiffs gave notice of intention to appeal from this order, but before they perfected their appeal, Judge Mullins signed an order setting *Page 123 aside his order of nonsuit, and appeal was taken from this last order, and that order was reversed in an opinion recently filed by this Court, with leave to the plaintiffs (appellants here) to perfect their appeal from the order granting the nonsuit. The order of nonsuit appealed from is as follows: "Upon the close of plaintiff's testimony in the above stated case, the defendant moved for nonsuit upon the various grounds stated in the record. It appearing to my satisfaction that the plaintiffs have failed to show that they, or any one of them, their ancestors, predecessors or grantors, were seized or possessed of the premises in question, or any part of such premises, within ten years, or within twenty years, or within forty years, before the commencement of this action, and it further appearing that the evidence, as offered by the plaintiffs is insufficient to sustain a verdict for them, and totally fails to make out their case, it is ordered that the nonsuit in said case be, and is hereby, granted."
The appellants, by their exceptions (nine in number, which should be set out in the report of the case) question the correctness of this holding by his Honor. A careful examination of the evidence in the case forces us to the conclusion that his Honor was in error in not submitting the case to the jury to pass upon the evidence in the case. The order of nonsuit was based mainly upon the statute of limitations and adverse possession. There was a scintilla of evidence to go to the jury on these questions, as well as that of common source, of title. Chief Justice McIver, inThomas v. Dempsey, 53 S.C. 218, 31 S.E. 231, says: "The rule is well settled that where the question is, whether a party has acquired title to real estate by adverse possession for a period of ten years, it must be clearly proved and shown."Rochell v. Holmes, 2 Bay, 487, Harrington v. Wilkins, 2 McC. 289. Where it is said the character of possession is a question for the jury. Cantey v. Platt, 2 McC. 260;Porter v. Kenny, 1 McC. 206; Hill v. Saunders, 6 Rich. 62;Abel v. Hutto, 8 Rich. 42. The law is so well settled that *Page 124 quotation of authority is unnecessary; that where there is any competent relevant testimony to go to the jury, that a nonsuit cannot be granted. We cannot escape the conclusion that there was evidence to go to the jury upon all of the issues that the Judge based his order of nonsuit and that he was in error and order appealed from should be reversed.
Judgment reversed.