I concur in the opinion that this Court has jurisdiction to review the findings of fact by the Circuit Judge, as to whether J.H. Jenkins had forged the signature of J.W. Jenkins to the paper presented to the master as a note of J.W. Jenkins.
The action was brought for partition, and for the settlement of the estate of J.W. Jenkins, and, therefore, the issue of fact, as to the genuineness of the signature to the note, was not "an issue of fact in an action for recovery of money only, or of specific real or personal property,"
and did not fall under section 274 of the Code of Procedure, requiring issues of facts arising in such cases to be tried by a jury.
It is contended, however, that even in a case of this character the issue as to the genuineness of the paper presented as a note of the intestate was cognizable solely by a court of law and could not be tried in the court of equity. The rule laid down in Adickes v. Lowry, 12 S.C. 97, has been restated in many cases as the settled law of the State. In speaking of an equitable defense set up to an action to recover possession of land, the Court says: "Such defense is equitable in its nature and belongs to that side of the Court which exercises the chancery jurisdiction. Under the former practice such defense could not have been set up in the action at law to try the title and recover possession. The defendant would have been obliged to file his bill in equity to restrain proceedings at law, and to seek such other relief as in equity he might have a right to demand. Under the Code of Procedure all this may be effected by the pleadings in a single action, and new parties, if necessary, may be brought in; but at the trial the legal and equitable issues must be distinguished and decided by the Court in the exercise of its distinct functions as a court of law and a court of equity, and only those are determinable by a jury which are properly triable by jury, while those which would formerly have been properly triable in equity must be determined by the Judge in the exercise of his chancery power." It follows that the jurisdiction of this Court to review the finding of the Circuit Court depends on whether the issue as to the validity of the note would have been properly triable in a case of this kind by the court of equity. On this there can not be the slightest doubt. No jurisdiction of the Court of equity was better established than to entertain suits by executors and administrators or creditors for the settlement of estates, including the ascertainment and adjudication of all claims against the estate,
and the application of the assets to them. Story's Equity, secs. 544, 545, 549; Pomeroy's Equity, sec. 156.
This jurisdiction of the court of equity under the old practice was continually exercised, and was so familiar that the courts of this State have rarely had occasion to allude to it. The point was expressly decided, however, in Brown
v. McDonald, 1 Hill's Ch., 297, and Chalmers v. Kinard,38 S.C. 126, 16 S.E., 788; and in the recent case of Dyson
v. Jones, 65 S.C. 308, 43 S.E., 667, this Court reviewed the findings of fact of the Circuit Court, made in the exercise of its equity jurisdiction, as to the validity of a claim against an estate which had been brought into the Court for settlement. This jurisdiction of the court of equity is also recognized in In Re Covin's Estate, 20 S.C. 471, and inIn Re Solomon's Estate, 74 S.C. 189, 54 S.E., 207.
There are, it is true, numerous cases, mainly of partition and foreclosure, in which the Court has held, that when in an equitable action a defendant sets up an exclusive, independent title to land, or personal property, a legal issue is raised not cognizable by the court of equity. Such cases are Chapman v. Lipscomb, 18 S.C. 222; McGhee v. Hall,23 S.C. 388; Sale v. Meggett, 25 S.C. 72; Marshall v.Pitts, 39 S.C. 390, 17 S.E., 831; Osborne v. Osborne, 41 S.C. 195,19 S.E., 494; Johnson v. Johnson, 44 S.C. 364,22 S.E., 419; Bank v. Peterkin, 52 S.C. 236,29 S.E., 546; Holliday v. Hughes, 54 S.C. 155, 31 S.E., 867. But these cases do not affect the question here involved; for while the court of equity, as we have seen, always exercised the jurisdiction to adjudicate the validity and amount of claims presented against an estate brought into Court for settlement, it held, with the same uniformity, that it would not attempt to try the title to land or personal property, where the parties claimed by distinct titles. Edings v.Whaley, 1 Rich. Eq., 301; Gibbes v. Elliott, 5 Rich. Eq., 327, 3 Pomeroy, sec. 425. The exceptions to this rule, where the title was only incidentally involved, and where
the property consisted of slaves, are of no consequence in this discussion.
From these considerations, it is clear that, in passing on the validity of the claim, the Circuit Court was exercising its chancery jurisdiction, and its finding of facts is reviewable by this Court.
I concur also in holding that the finding of fact, that the note was signed by J.W. Jenkins should be reversed.
I dissent, however, from the proposition that after aprima facie showing by the claimant, J.H. Jenkins, as to the genuineness of the note, the burden of proving that it was not signed by her intestate shifted to the administratrix. When J.H. Jenkins set up the note, as an indebtedness of the estate of J.W. Jenkins to himself, he assumed the burden of proving that the paper presented was the note of J.W. Jenkins; and that burden remained on him from the beginning to the end. On this point, I adhere to the views expressed in Thames v. Rouse,82 S.C. 40.
The appeal of respondent from the order of Judge Prince, allowing the appellants further time in which to perfect the appeal, by serving the case and exceptions, can not avail the respondent. Even if the order of Judge Prince be regarded a nullity for want of jurisdiction, no motion was made in this Court to dismiss the appeal, and the Court would not dismiss it without such motion.
I concur in the judgment of reversal.