
    JAMES B. GOODE and Wife, ELIZABETH R. GOODE; JOSEPH M. ROGERS, MARTHA O. ROGERS, JOHN T. ELDRIDGE and Wife, MILDRED A. ELDRIDGE; and WILLIAM J. ROGERS v. JESSE V. ROGERS.
    (Decided February 27, 1900.)
    
      Partition of Realty — Owelty—Questions of Fact — Issues of Fact — Payment, Statute of Limitations, Counterclaim —Premature Appeal.
    
    1. Where proceedings for partition of realty were prosecuted to filial decree in 1876, confirming the allotment in severalty among those entitled, and assessing owelty upon the more valuable share in favor of the less valuable to secure equality in partition, and notice is issued, in 1899, to the owners of the more valuable share to show cause why execution should not issue for the sums assessed, to which they set up the defense of payment, statute of limitations, and counterclaim — these pleas are not questions of fact for the Court, but issues of fact for the jury.
    2. An appeal from the ruling of his Honor, directing the cause to be placed upon the civil issue docket for trial by jury, is premature.
    Special Proceeding for partition, of land, beard upon appeal from tbe Cleric, before Bowman, J., at Eall Term, 1899, of NoethamptoN Superior Court.
    Tbe cause bad proceeded to final decree in 1879, allotting the shares and adjudging owelty against the most valuable share in favor of tbe less valuable.
    This was a notice to show cause why execution should not issue for tbe owelty adjudged — tbe answer set up tbe defense of payment, statute of limitation, and counterclaim.
    His Honor adjudged these were issues of fact for tbe jury, and directed tbe cause to be placed on tbe civil issue docket for trial. Petitioners excepted and appealed.
    
      
      Messrs. Wmborne & Laiorence, fox appellant.
    
      Messrs. B. B. Peebles, and O. G. Peebles, for appellees.
   Faircloth, C. J.

The answer of respondents presents important questions. We are, however, not required to consider them, for the reason that the issues presented have not been tided below'. These pleas present serious and important issues of fact. McDonald v. Dickson, 85 N. C., 250; Isler v. Murphy, 71 N. C., 436.

The appeal was clearly premature, and can not be entertained. Hailey v. Gray, 93 N. C., 195; University v. Bank, 92 N. C., 651.

Appeal dismissed.'  