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
Judgment affirmed.