The opinion of the Court was delivered by
Mr. Justice Gary.This is the second appeal herein; the first is reported in 72 S. C., 208, 51 S. E., 692.
The cause having been docketed by the plaintiff on calendar 2, the defendants made a motion for an order transferring the cause to calendar 1, for the trial of the issue of title raised by the pleadings.
After setting forth his reasons, his Honor, the presiding Judge, in conclusion, said: “It seems to me that to transfer the cause to Calendar No. 1 at this stage of the case would be both cumbersome and premature, but that the cause should be heard first upon Calendar No. 2, and accordingly as may be the result of that trial upon the equitable issues involved and determined, it then be transferred to Calendar No. 1 for trial, of the issues upon which there must be a jury trial, unless waived, as above indicated, or ended, as the case may be. I cannot hesitate, therefore, to hold that the motion herein under consideration must be refused.”
The defendants appealed from said order, on the ground that the cause should have been placed on Calendar 1 for the trial of the issue of title1.
The complaint is fully set out in the report of the former appeal, and in brief alleges: Mrs. Kell’s ownership of the *315land described, her death leaving as her heirs the plaintiff, the defendants, Mrs. Boylston, and Miss Cloud, the imbecility of Mrs. Kell, the control of Dir B. E. Kell over her, and his fraudulent procurement of a deed from her conveying to him all her property; the purchase after Mrs. Kell’s death of the interests of Mrs. Boylston and Miss Cloud by Dr. Kell; the execution by Dr. Kell of a deed, in consideration of love and affection, to certain of the defendants, his brothers and sisters, who are non-residents, purporting to' convey the entire land, but in reality only conveying the one-third interest acquired by him from Mrs. Boylston and Miss Cloud; the possession by the defendants of the land since the death of Dr. Kell, the receipt of the rents and profits, and the commission of waste by them. The relief sought is the annulling of the deed from Mrs. Kell to Dr. B. E. Kell on the ground of fraud.
The defendants, after denying certain facts set out in the complaint, allege that they “are the owners and in possession of said premises as grantees of Dr. B. E. Kell, deceased, who' at the time of said grant to said defendants was seized in fee and possession of all the said real estate.
“(1.) As devisee under the will of B. E. Kell, deceased, the said B. E.’ Kell, deceased, being at the time of his decease the owner in fee and in possession of said realty, (a) under and by virtue of a grant from' Susan C. Kell to J. H. McMurray, and grant of J. H. McMurray to B. E. Kell; and, (b) under and by virtue of certain other grants of the said Susan C. Kell to the said B. E. Kell.
“(2) As grantee of a certain quit-claim deed of Susan C. Kell to Dr. B. E. Kell, executed for the purpose of confirm - ing and putting beyond question, the title of the said B. E. Kell.”
It will thus be seen that both equitable and legal issues were raised by the pleadings.
*3161 *315Section 279 of the Code is as follows: “The issues on the *316calendar shall be disposed of in the following order, unless, for the convenience of parties -or the dispatch of business the Court shall otherwise direct:
“1. Issue of fact to- be tried' by a jury.
“2. Issues of fact to be tried by the Court.
“3. Issues of Raw.” (italics ours).
This section was construed in the case of Knox v. Campbell, 52 S. C., 461, 30 S. E., 485, and the Court ruled that since the adoption of the Code, it is left to the discretion of the presiding Judge, whether the legal or equitable issues shall first be tried. The Court, in that case, quoted with approval, the following from section 86 of Pomeroy’s Code Remedies: “The equitable issues may be triel first and the legal issues afterwards, or the order may be reversed, as the nature of the case and the relations of the issues seem to require.”
It is true, the Court announced the principle in the case of Bank v. Peterkin, 52 S. C., 236, 39 S. E., 546, that the proper practice, when the answer raises an issue of title, in an action to foreclose -a mortagage on land, is to order the cause transferred to calendar 1, in order that the issue of title may be tried by a jury on the pleadings, and not upon a special issue framed by the Court; and, that this applies to any cause in equity, wherein is raised the issue of title to land, which, if successful, would defeat the plaintiff’s recovery against the party setting up title.
Wé do not, however, regard the case under consideration, as falling within the principle announced in the case just mentioned. The reason for the practice announced in Bank v. Peterkin, is that it would- be useless to proceed with the trial of the equitable issue, if the defendant’s paramount title should be sustained when submitted to the jury.
Although fraud is peculiarly a matter of equitable cognizance, nevertheles the jurisdiction of the Courts of law and equity is concurrent. Miller v. Hughes, 33 S. C., 530, 12 S. E., 419. Therefore, whether the equitable or the legal *317issues are tried first, it will be necessary in that trial to determine the question of fraud.
As the trial of the issue of title first will not dispense with the necessity of determining the question of fraud, there was no abuse of discretion, in according to the plaintiff the mode of trial, in the first instance, which she had elected to pursue, and which, if she should be successful, would place her in a better position to assert her rights on the law side of the Court.
Of course, after the equitable issues are disposed of, the defendants will still have the right of a trial by jury, upon the issue of title.
It is the judgment of this Court that the judgment of the Circuit Court be affirmed.