I concur in the judgment of affirmance, but the reasons stated by Mr. Justice Gary for overruling the fifth and tenth exceptions seem to me unsound. The fifth exception assigns error in this instruction: "The thing for the jury to say is when was this fence put there, and you might say that is the pivotal point in this case. If it was there for ten years before 1906, and Matheson held it for these ten years, his title is good. If it was put there any time short of ten years, it does not avail him. That is all there is in the case."
The defendant, Matheson, in his pleadings denied the title of the plaintiff and set up title by adverse possession in himself. By the instruction quoted the Court clearly indicated to the jury that the plaintiff had made out his title, and that the only substantial question in the case was whether the defendant had acquired title by an adverse possession, dating from the time he had inclosed the disputed land by a fence. The Constitution forbids Judges to charge juries with respect to matters of fact. The inhibition of course refers to matters of fact which have any bearing on the material issues involved in the trial. Careful examination of the record leaves not the least room to doubt that the plaintiff's grantor, Mrs. McMillan, had a good legal title to the land when she conveyed to him, unless the defendant had acquired his title by adverse possession. No reasonable jury could have found otherwise. In EdgefieldMfy. Co. v. Maryland Casualty Co., 78 S.C. 73,58 S.E., 969, the rule was laid down that "this Court should not order a new trial when from an examination of the record it has no doubt the verdict of any fair jury would have been the same, even if no error had been committed." Applying this rule, as the record shows that the only issue made by the pleadings on which the evidence left any possible doubt was whether the defendant had acquired title by adverse possession, the Court will not grant a new trial, even if it *Page 435 be assumed that it was a technical error for the Circuit Judge to refer to that issue as the pivotal point in the case.
The same reasoning applies to the tenth exception, for the evidence leaves no doubt that Mrs. McMillan did hold the land, claiming it adversely for eleven years before the defendant entered.