The opinion of the Court was delivered by
Mr. Justice Pope.This action, for partition of land, came on for trial before his Honor, Judge Ernest Gary, who rendered his decree on the 26th September, 1895. Defendants gave notice of appeal therefrom, but pending said appeal, he made a motion before his Honor, Judge Watts, for a new trial upon after-discovered evidence. This motion was granted by Judge Watts on 31 March, 1896, and from this order the plaintiff now appeals to this Court on twenty grounds. It will be proper that this decretal order of Judge Watts and plaintiff’s exceptions thereto shall be included in the report of this case. The decree of Judge Watts fully states the history of this case, and the same need not be repeated in detail by us. The respondents, in their argument at the bar of this Court, very properly group these twenty exceptions into four propositions.
1. That Judge Watts was without jurisdiction to grant the motion for a new trial. 2. That the alleged evidence for a new trial is immaterial. 3. That due diligence might have led the respondents to have discovered it at or before the first trial. 4. That the Circuit Judge erred in receiving in evidence an ex parte survey and the remarks of the surveyer endorsed on the plat.
*2731 *272Since the case of Durant v. Philpot, 16 S. C., 116, which was decided in the year 1881, and which has since been recognized, it seems to us a waste of time for counsel *273to inveigh against the practice of granting new trials in equity causes on after-discovered evidence, on motion therefor. The legislature has clothed Circuit Judges with the power to have and grant such motions. Section 195 of our Code, amongst other matters, provides: “The Court may, likewise, in its discretion, and upon such terms as may be just, allow an answer * * * and may, also, in its discretion, and upon such terms as may be just, at any time within one year after notice thereof, relieve a party from a judgment, order or other proceeding taken against him through his mistake, inadvertence, surprise or excusable neglect, and may supply an omission in any proceeding.” * * * The language of Mr. Justice (now Chief Justice) McIver, in Durant v. Philpot, supra, seems«to be very direct, when he is discussing in that case, which was on the equity side of the Court of Common Pleas, the question of the procedure to be employed in making to the Court an application to be relieved against “a mistake, inadvertence, surprise or excusable neglect” in not producing at the first trial some highly important but newly-discovered evidence, by way of motion rather than by a petition for a rehearing, or by a bill of review, thus states the conclusion of this Court: “It seems to us, however, that since the abolition of the Court of Equity, and the requirement of the Constitution, in section 3, article V., that justice shall be administered in a uniform mode of pleading, without distinction between law and equity, these modes of proceeding, by a petition for rehearing and by bill of review, have become inapplicable, and that now the same results can be obtained by motion under the provisions of section 2, chap. CV., Gen. Stat., 497.” It does not affect the soundness of these views so expressed that the legislature has repealed section 2, chap. CV., Gen. Stat., 497, for it will be observed that there was no provision in the repealed law relative to the form under which the desired relief was to be obtained, which was made the basis of this utterance of this Court; but, on the contrary, it was bot*274tomed on the change wrought in the mode of pleading in our courts by section 3, article V., of the Constitution of 1868. So we find, in the case of Hubbard v. Camperdown Mills, 26 S. C., 581, this mode of procedure was adhered to. It seems to us that, independent and distinct from section 195 of the Code, a court of equity in this State, or, rather, a Circuit Judge presiding on the equity side of the Court of Common Pleas, is invested with the power of granting new trials in such a cause without adopting the old process of a petition for rehearing or a bill of review. On the law side such relief is granted on motion. Since the Constitution has abolished the distinction between law and equity, so far as pleadings are concerned, this result is almost- necessary. What principle guides courts in granting the relief sought? In the language of Mr. Justice McIver, in Durant v. Philpot, supra, in answering the objection that “.one Circuit Judge has no authority to reverse and nullify the decision or decree of another Circuit Judge, as was done by the order granting a new trial in this instance,” he thus states the principle: “It is quite manifest that Judge Mackey, in granting the motion for a new trial, does not undertake to reverse or nullify the decision or decree of Judge Thomson. The latter rested his decision solely upon the ground that the evidence, as presented to him, satisfied his mind that there was no agreement to assign the mortgage until after the debt secured by it had been paid by the mortgagor, and, therefore, that the assignment was a nullity, there being then nothing to assign. Judge Mackey, without pretending to controvert or question the correctness of this conclusion of fact on the testimony before Judge Thomson, and without questioning the conclusion of law deduced therefrom — indeed, admitting the correctness of 'the law laid down — simply holds that the newly-discovered evidence would have a very important bearing upon the question of fact, which was made the basis of the former decision, and would, probably, tend to induce a different conclusion, and grants the motion for a *275new trial in order that the parties may have the opportunity of- introducing this newly-discovered evidence. He does not grant the motion because of any error committed by Judge Thomson, but solely because of the discovery, since the former trial, of certain evidence which, in his judgment, was well calculated to influence the result, and show that the former decision was erroneous' — not because of any fault or error in the Judge who rendered the former decision, but because of the absence of that full light which subsequent discoveries have enabled the parties to shed upon the questions of fact involved.” Now, in the case at bar, assuming, for the present, the existence of valid newly-discovered evidence, Judge Watts in no wise intends to infringe, nor does he infringe, upon the decree of Judge Ernest Gary, so far as his conclusions of fact issuing from the testimony adduced before the latter, or his conclusions of law deduced therefrom, are concerned; but he virtually says: “Here is some newly-discovered evidence since that trial that, in my judgment, has a direct bearing upon the rights of the parties, and, in my judgment, if this testimony had been before Judge Gary, it would have induced him to reach a different conclusion. If this testimony had been in hand at the first hearing, there would have been no excuse for the failure to have introduced it, but it has been discovered, after reasonable diligence used at the first hearing, since such hearing, and, therefore, I hold it must be given an opportunity for consideration, it having been brought to my attention by motion, after due notice, accompanied by affidavits in support thereof.” Eet us go a step further and see what this after-discovered testimony is, and what relation it bears to the issues in the case at bar. The complaint sets out that the real property to be partitioned was to be divided amongst the parties so as to give the plaintiff one-half thereof and the remaining half to the defendants, and consisted of three tracts of land — one tract, containing sixty-nine acres, “more or less,” known as the “home place;” one tract, containing sixty acres, “more or *276less,” cultivated in 1893 by Rewis Covington; and one other tract, containing 212 acres, “more or less,” bounded by lands of James McRae and others (this last tract is called the “woodland tract”). The answer admitted this statement as to the tracts and acreage of each. When the writ of partition is issued, these tracts, respectively, are said to contain “sixty-nine acres,” “sixty-five acres,” and “212 acres.” In the return of the commissioners to the writ of partition, these tracts, respectively, are stated to contain “sixty-nine acres,” “sixty-five acres,” and “230 acres,” and they recommend that the widow receive the “sixty-nine acres,” at a valuation of $3,450, and that the “sixty-five acres” and “230 acres,” which, in the aggregate, they value at $3,980, be allowed to the defendants, to be sold for partition amongst them. When Judge Gary was considering this return, these tracts were considered as sixty-nine acres, sixty-five acres, and ®j0 acres. The objections urged against the confirmation of the return were: 1st. That the homestead assigned to the plaintiff at $3,450 should be assigned at $4,140. 2d. That the whole three tracts should have been sold and the proceeds divided. 3d. That it was error to attempt partition before sale. All these exceptions the Circuit Judge overruled, and confirmed the return. It should have been stated, the defendants were required by the return to pay plaintiff $265, to equalize the partition. Now, the evidence after-discovered is, that the tract of land which was returned by the commissioners as containing 230 acres, in fact only contained 188 acres; that the-fact that the intestate had, in his lifetime, sold forty-two acres off of the 230-acre tract, was not discovered by the defendants until on the day of sale, a month after the decree; and that the deed of the intestate by which he convej^ed the forty-two acres off of the 230 acres was not recorded in the office of the register of mesne conveyance for Marlboro County. When we recall that the commissioners in partition returned said tract as containing 230 acres, and placed value thereon equal to $6 per acre, if they valued this tract at *277$1,880, and that it was in this way that defendants were made to appear to receive $265 in value of lands more than the plaintiff received, and that this knowledge would have been made manifest by the intestate’s deed for the forty-two acres, the existence of which the defendants were excusably ignorant until after the decree of Judge Gary, it does seem that Judge Watts was justified in rendering the conclusion that a new trial ought to be ordered, and he accordingly did so. We cannot sustain these exceptions up to this point certainly.
2 We will now examine the second group of exceptions. The newly-discovered evidence is required to be subjected to the severest scrutiny by the Circuit Judge — for it is no light and commonplace matter to grant a new trial. On the contrary, it is a solemn and responsible act, and must only be done in those instances where such newly-discovered evidence was unknown to the party offering it, at the first trial — this ignorance of its existence must not be the result of a want of reasonable diligence; the evidence in question must be material to the issues, and must be of such character as would, in all likelihood, change the result if established. Did the newly-discovered evidence comply with all these requisites? We think it did; for these reasons: We think this evidence was unknown to these defendants at the time of the first trial, the deed was unrecorded, and in the possession of others than parties to the suit; this deed took off forty-two acres of land that entered into the estimate of the commissioners in partition, for they returned that tract, not as 188 acres, more or less, but absolutely, as 230 acres. It is true, that this was an enlargement of the acreage upon the estimate thereof in the pleadings and in the writ itself, and might have stimulated inquiry, but neither plaintiff nor defendants seems to have made the inquiry at that time. They and the Court acted upon it as 2j0 acres. Now, forty-two acres is nearly the one-fifth part of the 230 acres, and it is idle to say that such a deficit is immaterial. By the estimate of the commissioners at $6 per *278acre, it amounted to $252, which amount was nearly sufficient to wipe out the $265, which defendants were required to pay to the plaintiff for purposes of equalization. At this point our doubts arise under the order of Judge Watts for a new trial. By its terms, such order requires that such new trial shall be “without prejudice to the titles of those who purchased lands at such sale, complied with the terms thereof, and received conveyances therefor.” By the report of the clerk on sales, it seems that every purchaser has complied by paying his entire bid in cash, by consent of the defendants, and each purchaser has received title, except that the purchaser of the forty-two acres (that did not belong to the estate of the intestate) has been excused from paying and taking title. What practical advantage can accrue to the defendants under this order of Judge Watts with its restrictions? It seems clear to us that, by these acts of the defendants, they have taken it out of their power and that of the Court (for the defendants did not appeal from the order of Judge Watts) to deal with the two tracts of land that had been assigned to them in this partition suit. Can they, therefore, interfere .with the land assigned, in partition, to the plaintiff? We think not. So, therefore, it seems to us that, in equity, and this is a suit in equity, they should only be allowed on this new trial to show this forty-two acres did not belong to the estate of their intestate, and that the commissioners estimated its value, as they did the other four-fifths of the woodland tract of 230 acres, as they found its acreage to be. And that when this is done, if these facts be established, a credit of $252 be allowed on the $265, allowed to the plaintiff to be paid by the defendants for the purposes of equalization. The decretal order of Judge Watts should be amended or modified to this extent.
The third and fourth divisions under which we proposed to consider the appellant’s exceptions do not present any questions that are not already disposed of under what we have hereinbefore stated.
*279It is the judgment of this Court, that the order of Judge Watts, granting a new trial, be modified as herein required; but that if the appellant will remit the sum of $252, so that the same shall be entered as a credit upon the sum of $265, the defendants were ordered to pay her for equalization in partition, within .ten days after this judgment is remitted to the Circuit Court, then, and in that event, Judge Watts’ order for a new trial is reversed.