While I concur in the conclusions reached by Mr. Justice Gary upon all the other points considered by him in his opinion, I cannot agree with him in regard to his last conclusion, to wit: that the Circuit Judge erred in refusing the motion of appellant for a trial by jury of the issue of title raised by the answer. On the contrary, I think there was no error in refusing the motion made at the time and under the circumstances when it was made. The action was brought for partition, and was, therefore, cognizable in equity. When, however, the appellant by his answer raised an issue of title to real estate, he had a right to have such issue tried by a jury, unless such right was waived; and the practical question presented here was whether there was such waiver. While it is true that there was no express waiver, yet it seems to me, that such waiver can and should be implied from his conduct. In the first place, after issue joined, the appellant consented to an order "that the case be referred to the master of this county to take the testimony herein, and report the same to this Court." In sec. 274 of the Code, it is provided that an issue of fact, in an action for the recovery of real property, must be tried by a jury, unless a "jury trial be waived, as provided in sec. 288, or a reference be ordered." As it cannot be claimed that a jury trial was waived in any of the modes designated in sec. 288 of the Code, the inquiry is narrowed down to the question, whether such mode of trial was waived by the consent to the order of reference above stated. What was the nature and scope of that order? It was a reference of "the case" — not of any particular issue in the case — but the whole case. For what purpose? "To take the testimonyherein and report the same to this Court." Now, as the pleadings show that there were other issues in the case, which were not triable by a jury as a matter of right besides the issue of title, and as the whole case was referred to the master to take the testimony on all these issues and report the same to the Court, the necessary inference seems to be that *Page 458 the testimony was to be reported to the Court for the purpose of enabling the Court to pass upon all issues — that is, for the trial of the whole case by the Court. As was said in Meetze v. Railroad Company, 23 S.C. at page 25, when a party consents to an order of reference, "he must be regarded as consenting to the necessary incidents to a reference." Again, as there were other issues in the case besides that of title, and as the testimony in the whole case was to be taken and reported by the master, how was that relating only to the issue of title to be separated from that relating to the other issues, not triable by a jury, if the appellant's demand for a trial by jury had been granted? Could the Court, under the stringent provisions of the Constitution, venture to instruct the jury what portion of the testimony reported by the master was applicable to the issue of title which, alone, they were authorized to try, and what was not? And if this was not done, would not the case be left in inextricable confusion before the jury? But, in addition to this, it is provided in sec. 294 of Code, that "When the reference is to report the facts, the report shall have the effect of a special verdict." If so, then if the demand for a trial by jury had been granted, the Court would then have been confronted with two verdicts: one, the special verdict found in the report to the master, and the other, the verdict of the jury; and under such a state of things, it would be difficult to say how the Court should deal with these two verdicts. In view of the practical difficulties thus suggested, it seems to me that the safest conclusion to adopt is, that when a party consents to such an order of reference as was granted in this case, he must be regarded as consenting to the necessary incidents to such an order of reference, one of which is that the whole case is to be tried by the Court upon the testimony reported by the master. Again, it will be noted that no demand for a trial by jury was ever made by appellant, until after his motion to continue the case was made and refused; and this was at the August term of 1899, when, as I understand it, jury trials in civil cases cannot be had; and the fact that he *Page 459 made his motion to continue his case at that term, was an implied admission that it was triable by the Court, and not by a jury, which could only be by reason of the fact that he had waived his right to the latter mode of trial. It will also be observed that the appellant's motion was not for a trial by jury of the issue of title, but for a trial by jury, "upon issues raised by defendant's answer;" and as there were other issues raised by the answer upon which he was clearly not entitled to a trial by jury, there was no error in refusing the motion as made. This may seem somewhat technical; but as I am satisfied that all parties, in the outset at least, intended and expected that the order of reference would bring about a trial of the whole case by the Court, I feel less hesitation in presenting this technical ground.
As I do not think any of the other exceptions, not considered by Mr. Justice Gary (and not necessary to be considered under the view which he took), can be sustained, I think the judgment of the Circuit Court should be affirmed.
MESSRS. JUSTICES POPE and JONES concur in the dissentingopinion of CHIEF JUSTICE McIVER.