
    No. 2527.
    Rhodes v. Russell.
    November Term, 1889.
    
      This was an action for partition, in which the defendants denied that plaintiffs had any interest in the property, and set up an independent title in themselves. The follbwing orde'* of reference was passed: “On motion of E. F. Warren, Esq., plaintiff’s .attorney, and W. S. Tillinghast, defendants’ attorney, ordered, that this cause be referred to O. J. C. Hutson, Esq., as special referee, to try and determine all issues of law and fact, with leave to report any special matter, and that said referee do report his findings to this court.” The referee reported that plaintiff's had not proved title in themselves nor shown a common source of title to defendants and themselves, and he.recommended that the complaint be dismissed. The plaintiffs excepted to this report upon the grounds that the referee erred in failing to find that a common source of title had .been proved and plaintiff's had the better title, and in not ordering an issue before a jury. The Circuit Judge (Kershaw) decreed as follows :
    “On reading and filing the report of C. J. C. Hutson, Esq., referee herein,- and the exceptions of plaintiff, it appears to the satisfaction of the court that the question of title should be first settled, before any further proceedings should be had in the premises. It is ordered, that the exceptions be sustained and the finding of the referee be overruled. It is further ordered, that the question of title between the parties be and the same is hereby referred to a jury for trial at some future term of this court.”
    Defendants appealed, alleging error to this decree in deciding that a consent order of reference was not a waiver of right to trial by jury : and in holding that plaintiffs had shown a common source of title, or any title in themselves.
    This court reversed the__ Circuit decree on account of error in ordering an issue to a jury, and the case was remanded for a hearing upon the referee’s report. The court say: “Here the reference was as broad and as full as it could be, authorizing the referee to try and determine all issues of law and fact in the case; and this was made upon the motion of both the plaintiffs’ and the defendants’ attorneys, and with a knowledge, certainly, that the defendants Russell had set up in their answer an independent title, and a denial of title in the plaintiffs. This order, under the cases above, was a waiver of a jury trial on both sides; and we think it was error, therefore, to grant a jury trial at the instance of one side.
    “As to the other exceptions, we see nothing in the case which shows that his honor made any ruling on the subject of the common source of title, whether they had been proved or not. It is true that he sustained defendants’ exceptions to the referee’s report, in which this point was raised, and he overruled said report, in which it had been found that there was no evidence of a common source of title. But we suppose that his honor, having ordered an issue for the jury, necessarily overruled the report of the referee as a consequence of an issue being sent to a jury, and without regard to the merits of the report, whether well founded or not.”
    February 14, 1890.
    
      W. S. Tülinghast. for appellant.
    
      JE. F. Warren, contra.
   Opinion by

Mu. Chiee Justice Simpson,  