
    BUCHANAN v. BUCHANAN.
    1. Complaint — Trust—Partition.—A complaint states facts sufficient to constitute a cause of action, where it alleges legal title to land in defendant A, acquired by him without consideration from defendant B, who had held the same on a resulting trust for the intestate, husband and father of the plaintiff and other defendants, and demands that tbe trust be declared and the land partitioned.
    
      i. Trust — Petition—Misjoinder.—Such an action was a proceeding in equity, and there was not a misjoinder of two causes of action.
    3. Ibid. — Ibid.—Title by Payment. — -Under an action to declare a resulting trust in land and for its partition, the testimony did not clearly show that there was a resulting trust, but it seemed that the defendaut A had agreed to convey to the ancestor of plaintiff and her co-tenants, whenever such ancestor should pay for the land; that such payment had been fully made, partly by him before his death, and partly by his heirs ; and that defendant A had afterwards conveyed to defendant B without consideration and with full notice. Held, that these heirs were entitled to the partition prayed for.
    4. Findings op Fact by the master, concurred in by the Circuit Judge, and supported by the testimony, approved.
    Before Hudson, J., Abbeville, January, 1892.
    This was an action by Sarah F. Buchanan against F. A. Buchanan, G. D. Buchanan, and others, of whom Bessie B. Yerrell was the infant grand-child of William Buchanan, deceased, commenced February 13,1891. The action was to have a tract of land, conveyed by F. A. Buchanan toG. D. Buchanan, deceased, adjudged to be subject to a trust in favor of the heirs of William Buchanan, deceased, and for its partition amongst such heirs. The Circuit decree was as follows:
    This is an action for partition of a tract of land described in the complaint, and was heard by me at Abbeville, January term, 1892, upon the master’s report and exceptions thereto. Whether there was a resulting trust, or whether there was a contract to purchase, cannot be clearly determined from the evidence. The evidence does not show that William Buchanan paid any money at the time of the purchase. There is evidence that William Buchanan had possession of this land, and used it and treated it as his own until his death — a period of sixteen years — -and the circumstances show that part of the purchase money had been paid, and that F. A. Buchanan held the title for the benefit of William, and that since the death of William Buchanan the whole amount due F. A. Buchanan has been paid, and the land is now subject'to partition among heirs of William Buchanan. This is the view of the case taken by the master in his report. The evidence is overwhelming that F. A. Buchanan never intended to claim this land as against his brother, William. The legal title was in F. A. Buchanan, but William had all the elements of title except the deed.
    It is claimed by the defendants that F. A. Buchanan paid the taxes, but this would not interfere with the rights of William. It lias long been decided that payment of taxes is no evidence of title. The evidence satisfies me that when, in 1887, three years after William’s death, F. A. Buchanan made the title to G. D. Buchanan, it was done with the understanding that it was for the benefit of the family of William Buchanan. Adverse possession does not necessarily mean hostile possession, but the continuous and uninterrupted possession of William Buchanan shows the intention of F. A. Buchanan that William should have this land, and that 'William’s possession was exclusive. G. D. Buchanan had full knowledge of all the facts, and had rented the land from his father. As against F. A. Buchanan and G. D. Buchanan, the heirs of William Buchanan are entitled to partition. The case is preeminently one of equity jurisdiction.
    It is ordered, adjudged, and decreed: 1. That the exceptions of F. A. Buchanan and G. D. Buchanan to the master’s report be overruled, and that the report be confirmed. 2. That a writ in partition do issue, in the manner directed by law, to partition the lands described in the complaint among the heirs of William Buchanan, named in the complaint, according to their respective rights as therein set forth. 3. That, upon the filing of the report of the commissioners in partition, the parties have leave to apply for such further relief as may be necessary. 4. That the exceptions of the plaintiff to the master’s report, so far as they are inconsistent with this decree, be, and the same are hereby, overruled.
    The exceptions, omitting those which questioned mere findings of fact, were as follows: II. Because his honor erred in his statement in said report, that “adverse possession does not necessarily mean hostile possession, but the continuous and uninterrupted possession of Wm. Buchanan shows the intention of F. A. Buchanan that William should' have this land, and that. William’s possession was exclusive,” and that “as against F. A. Buchanan and G. D. Buchanan, the heirs of Wm. Buchanan are entitled to partition.” III. Because his honor erred in ordering, adjudging, and decreeing: 1st, that the exceptions of F. A. Buchanan and G. D. Buchanan to the master’s report be overruled, aud that the report be confirmed; 2d, that said lauds be partitioned. IX. Because his honor erred in overruling their sixth exception, which is as follows: Because said master erred in his conclusion of law, “That the heirs of Wm. Buchanan are entitled to specific performance of the contract of purchase aforesaid, and to partition of said land.” X. Because his'honor erred in overruling their seventh exception, which is as follows: Because said master erred in his conclusion of law, “That the conveyance by F. A. Buchauan to G. D. Buchanan, if allowed to stand, would operate a fraud upon the rights of the other heirs of Wm. Buchauan, and should be set aside and cancelled.” XI. Because his honor erred in overruling their eighth exception, which is asfollows: “Because said master erred in overruling the demurrers interposed by the undersigned.” XII. Because his honor erred iu overruling their ninth exception, which is as follows: ‘Because said master erred in failing to dismiss the complaint herein, when he found as matter of fact that the allegations of the complaint were not sustained by the testimony.” XIV. Because his honor erred in overruling their eleventh exception, which is asfollows: “Because there is no allegation of the complaint to sustain the master’s finding of fact as to the agreement between Wm. Buchanan and F. A. Buchanan iu regard to the purchase of the land by Wm. Buchanan from F. A. Buchanan.”
    
      Mr. Eugene B. Gary, for appellant.
    
      Messrs. BeBruhl & Bradley and Barker & McGowan, coutra.
    March 14, 1893.
   The opinion of the court was delivered by

Mr. Justice McGowan.

The facts of this case are somewhat complicated, and, in order to make plain the principal points involved, it will not be improper to make a short statement. William Buchanan, iu 1868, owned a small tract of land (315 acres), which was sold under execution for debt iu May, 1868, aud at sheriff’s sale was bid off by a brother, F. A. Buchanan, for $400, who took sheriff’s title for the same. William Buchanan aud his family continued to live on the place, without paying rent or other consideration for the use of it, up to 1884, when he died intestate. After his death, his widow and her children occupied the land, and paid rent for it, up to the present year (1891). On May 28, 1887, F. A. Buchanan conveyed the laud to G. D. Buchanan, one of the children of William, for an expressed consideration of $1,500.

This action is now brought by the widow of William, the plaintiff, alleging that at the sale of the land by the sheriff in 1868, the purchase money was paid by her husband, William Buehauau, whereby a trust resulted; that F. A. Buchanan held the title as trustee for William (and after his death, for his heirs), and that G. D. Buchanan now holds it in the same capacity as trustee; that the conveyance from F. A. to G. D. Buchanan was without consideration, and a fraud upon the rights of the plaintiff and the other heirs of William; that from the time of the sale in 1868, William Buchanan, and after his death his heirs, have had possession of the land as owners. Upon these facts, plaintiff claims that the laud is subject to partition among the heirs at law of William Buchanan; and this action, accordingly, is for that purpose.

4 5 In answer to so much of the argument of appellant as is confined within this limit, we might say, in the first place, that we are by no means satisfied that the right to a j ury trial, or, as stated in the language of the Constitution, “The right of trial by jury shall remain inviolate,” is at all affected by substituting one county for another, where such trial may be had. This question is somewhat involved in the cases of Cregier v. Bunton, 2 Strob., 487; State v. Boatwright, 10 Rich., 410; State v. Williams, 35 S. C., 345. It may be that the provisions of the law, which secure a tribunal consisting of a jury of twelve good and lawful men, drawn from the county where the trial is had, is all that is contemplated by the Constitution. And, .secondly, it .seems to us that section 3 of article Y., wherein express authority is given the General Assembly to provide for a codification of our laws and the practice in our courts, may be very well cited as authority for the present legislation. For it will be remembered, that such section .of the Code (section 147) is directly traceable to the authority of the provision of our State Constitution, authorizing such legislative enactment. Under the practice in this State before 1868, the change of venue, both in law and equity, was had, but a doubt was suggested, at least by implication, by the court of last resort, in State v. Williams, 2 McCord, 383, as to the power of the court to change the veuue iu criminal cases. Section 3, of article V., of the Constitution was preparing the way for the union, iu the Courts of Common Pleas in this State, of tbe powers previously exercised by the Courts of Common Pleas and General Sessions, and, also, of the Courts of Equity. Such being tbe case, the comprehensive language of section 3 of article V. may very well be construed to embrace the power to the legislature in the Code of Procedure, to be adopted by it to regulate the practice as to a change of venue.

At the reference, a demurrer was interposed, that the complaint did nob state facts sufficient to constitute a cause of action, which was properly overruled by the master.. The defendants also claimed that there was an improper joinder of two separate causes of action, which the master properly overruled. It was a proceeding in equity.

The master took the testimony, which is all in the record; and, after holding that there was no proof that the purchase money at the sheriff’s sale belonged to William Buchanan, so as to raise a resulting trust in his favor, and also holding that the proof did not make out a case of title by adverse possession, the master, J. C. Klugh, Esq., proceeded, in a manner highly judicial and creditable to himself, as follows:

“The most probable and reasonable explanation of the matter appears to be, that William Buchanan made a contract to jmrchase’the land after the sheriff’s sale; that he held possession under this contract, and paid the purchase money, all but the sum of $275, which was paid, after his death, from the products of the place, and that, upon the payment of the $275, his heirs were immediately entitled to specific performance of the contract. After a careful consideration of the whole case, I am convinced that this is the correct explanation. It seems to me that the case of Spears v. Oakes, 4 Rich., 347, is in point.. In that case, which was an action at law of trespass to try title, and in which the rules of evidence are much more stringent than in an equity case, the court presumed a conveyance from the existence of a mortgage given by the assumed grantee to his grantor, and that, too, where the parties, in whose favor the presumption was made, had been out of possession for nearly, or quite, thirty years, and where the equities were altogether with the defendant. In this case, the parties claiming the benefit of the presumption have been continuously in possession. F. A. Buchanan alleged that he had a claim in or upon the land, which, in a case of this nature, was tantamount to a mortgage. It was only a claim, then, not the entire interest or ownership of the land. His claim was paid off by the parties in possession out of the products of the land. He acknowledged that he had been paid all that he had paid out, and had no further claim — that is, no more interest in the land. Where, then, could the interest of the land lie but in the heirs of William Buchanan? Roberts v. Smith, 21 S. C., 461. * * *
“I find as matters of fact: I. That F. A. Buchanan bought said land at sheriff’s sale in 1868, and paid for it the sum of $400. II. That William Buchanan went into possession of said land after the sale under a contract to purchase the same, and in his lifetime paid part of the purchase money. III. That at his death there remained due to F. A. Buchanan on said contract the sum of $275, and that this sum was paid to him out of the products of the land. IV. That the holding by William Buchanan was in virtue of his contract to purchase, and not adverse to the title of F. A. Buchanan. V. That the conveyance by F. A. Buchanan to G-. D. Buchanan was made with full knowledge in both parties of the rights of William Buchanan’s heirs, upon a nominal consideration and in good faith, for the purpose of effecting a division or settlement amongst the heirs of William Buchanan. VI. That said land is subject to partition amongst the heirs of William Buchanan, &c.
“As conclusions of law: * * * 2. That the heirs of William Buchanan are entitled to specific performance of the contract of purchase aforesaid, and to partition of the land. 3. That the conveyance of F. A. Buchanan to G. D. Buchanan, if allowed to stand, would operate a fraud upon the rights of the other heirs of William Buchanan, and should be set aside and cancelled,” &e.

To this report F. A. Buchanan and G. D. Buchanan excepted; also, the plaintiff and Bessie B. Verrell, in certain particulars. Upon these exceptions, the case came up for a hearing before his honor, Judge Hudson, who overruled all the exceptions, and confirmed the report of the master, ordering that a writ of partition do issue, in the manner directed by lawn to partition the lands described in the complaint among the heirs of William Buchanan, named in the complaint, according to their respective rights, as therein set forth. From this decree, the defendants, F. A. Buchanan and G. D. Buchanan, appeal to this court upon numerous exceptions, which are all printed in the record, and need not be set out here.

It will be observed, that most of the exceptions complain of error in the findings of fact, but the Circuit Judge concurred in all these findings. While this court may review and reverse findings of fact in an equity case, it is perfectly well settled that it will rarely disturb a finding of fact in which the Circuit Judge concurs with the master, unless there is no evidence to support it, or the weight of the evidence is against it. We have read the testimony in this case carefully, and we cannot say that the findings of fact are unsupported by the evidence. On the contrary, it seems to us that the view taken by the master, aud concurred in by the Circuit J udge, is the only one that is entirely consistent with the testimony. The great length of time William Buchanan and, after his death, his family were allowed to remain in the undisturbed possession of the land, is very significant. F. A. Buchanan acknowledged that he had been repaid all that he paid out, and had no further claim in the land w'hich he conveyed to G. D. Buchanan, one of the children of William Buchanan; but it was not shown that he, the said G. D. Buchanan, ever paid anything for it, and, of course, he had no interest in it beyond a share as one of the heirs at law of William Buchanan, deceased.

The judgment of this court is, that the judgment of the Circuit Court be affirmed.  