This partitioning proceeding, filed in DeKalb Superior Court, sought an order for the sale of lands owned by the parties to the proceeding as tenants in common, alleging that a fair andi equitable division of the property could not be made. It is a statutory proceed: ing under Code § 85-1504 et seq. After a hearing on the petition the court, apparently concluding that a division in kind was feasible, denied the prayers and dismissed the petition and this appeal is from that order. Held:
1. This court has jurisdiction of the appeal. It does not involve title to land, nor is it an equitable proceeding. Anderson v. Anderson, 151 Ga. 518 (107 SE 334); Nash v. Williamson, 212 Ga. 804 (96 SE2d 251).
2. The matter was heard before the judge without a jury. Evidence both pro and con was introduced on the matter of whether a fair and equitable division in kind could be made of the property, raising a factual issue which the trial judge resolved ágainst the petitioners.
On appeal the evidence is to be construed in a manner that will uphold rather than overturn the judgment of the *173trial court. Engram v. Faircloth, 205 Ga. 577 (2) (54 SE2d 598); Weideman v. Christopher, 78 Ga. App. 548 (51 SE2d 601). There is evidence which supports the judgment, and since the issue was purely a factual one, we must affirm.
Submitted January 31, 1972— Decided April 3, 1972— Rehearing denied May 1, 1972. Wilkinson & Nance, A. Mims Wilkinson, Jr., for appellants. Dunaway, Shelfer, Haas & Newberry, Jerome C. Ware, for appellees.Judgment affirmed.
Bell, C. J., Jordan, P. J., Hall, P. J., Pannell, Been, Quillian and Clark, JJ., concur. Evans, J., dissents.