dissenting. In this case, having the unpleasant duty to perform of differing from all my brethren, it is, I think, necessary to shew, that I do not do so for slight and trivial causes. The result of this case is to disseize the defendant of his freehold by the mere naked judgment of the Ordinary on a question of adverse title ! Such a result has never been before attained in the progressions which justice has from age to age made.

Before entering upon the question mainly to he discussed, I propose to free the case from the supposition, that it is concluded by the case of Gates vs. Irick, (2 Rich. 593).

It is very true, the ingenious and elaborate views of the Judge delivering the opinion (Wardlaw, J.) would conclude this question. But, really and truly, his observations on this matter were wholly outside of the case. The decision of the Court *114was, to send the case back, and give the party leave to amend if necessary : or if the Ordinary had only ordered the sale of a part, when he ought to have ordered a sale of the whole, then, that his decree should be set aside. That case, therefore, presents no other obstacle, than the very respectable authority of a single Judge.

It was supposed by the counsel, that he was justified in saying that the ruling below, that the decision by the Ordinary had only the prima facie effect of giving to the plaintiff title under it until the defendant shewed a title in himself, was extraordinary, and, perhaps, absurd. I do not find fault with any form of expression which a lawyer chooses to use in arraigning one of my opinions. But I undertake to shew that the ruling was right. Until the defendant’s defence was disclosed, how was the Court to know that the decree was not made in a case where a common right, arising from the intestacy of the deceased, was acknowledged ? How could the case then be otherwise considered than that the plaintiff had prima facie made out the title ? When the defendant alleged he was in by an adverse title, and not as parcener, his allegation could not destroy the judgment of the Ordinary’s court. He had to prove that fact, and when he did, (as the verdict shews he did) I affirm, and hope to prove, that the Ordinary’s decree was void, being pronounced on a matter of which he had no jurisdiction.

There is no doubt that the Ordinary may, under the Acts of 1824 and 1839, make partition of land, under the value of $1000, of which an intestate died seized, among his heirs at law, by actual partition or sale. But when there is a question of adverse title set up, and he finds it not a pretence, he is bound by the constitution of South Carolina to hold his hand and leave it to be settled, where it can alone be, in a Court of Law.

The 2d sec. of the 9th Art. of the Constitution provides that “ no freeman of this State shall be taken, or imprisoned, or dis-seized of his freehold, liberties or privileges, or outlawed, or exiled, or in any manner destroyed, or deprived of his life, liberty or property, but by the judgment of his peers, or by the *115law of the land,” This clause of the Constitution, as well as the 6th sec. of the same article, secures jury trial in all the cases mentioned, save where “the law of the land” might justify some other proceeding. What is meant by the law of the land ? The counsel for the plaintiff alleged that any Act of the Legislature was “law of the land,” within the meaning of those words used in the Constitution. If that be so, poor indeed is the guaranty of a paramount law binding upon the Legislature, as well as the people. But I deny, — most solemnly and fervently do I deny, — that any such meaning can be rightfully ascribed to the words used.

In Zylstra’s case, decided in ’94, (1 Bay, 382,) the lawyers and Judges, who were fresh from the floor of the Convention which framed the Constitution, did not pretend to give the words any such meaning. Judge Waties, who may well be said to have been the Mansfield of South Carolina, quotes the language of Lord Coke in defining those words in Magna Charta, and says, what I think may still be affirmed, that no English lawyer has ever questioned its correctness. The words, “ the law of the land,” mean the common law, or Acts of Parliament down to the time of Edw. II, which are considered as part of the common law, which doth not in all cases require a trial by jury.” To this must be added, what was said by another of the great lights of jurisprudence, my late brother Earle, in the State vs. Coleman, (1 McM. 501-2). Speaking of Lord Coke’s definition above cited, he says, “ by analogy, it has been held in this State, that the same terms used in our Constitution, must embrace the common law as then adopted here, and the Statutes of Great Britain, and of this State, made of force, and in operation at that time.” The words “ law of the land,” used in the Constitution, have no meaning beyond what is given in the citations which I have made from Zylstra’s and Coleman’s cases. I have referred to the meaning of the words in the Constitution more for the purpose of putting my foot on such a construction as would make them worthless and unmeaning, than any thing else. For the 6th sec. of the 9th article is that which, *116in my judgment, decides the whole matter here in controversy. Its words áre, “ The trial by jury, as heretofore used in this State, and the liberty of the Press, shall be forever inviolably preserved.”

Here, let it be asked, did any forum exist, at the era of the Constitution, where titles to land were settled without a jury ? None such can be found. The Act of ’69, which, by its 6th sec. clothed the Court with the summary jurisdiction, gives it with the significant words “ except when the title of lands may come in question.” Thus shewing that a Judge, sitting with a jury by his side to whom he could refer it, should not, even then, have cognizance of a question of title to land.

The Court of Equity, proceeding as it does, without a jury, has never ventured to touch a naked question of adverse right to land. I say so from a long and intimate acquaintance with its practice before 1828 — and from the benefit of six years administration of its rules and principles in the Court of last resort. Few, perhaps no, cases deciding the very point, can be found. For the principle is considered so definitively settled, that it has never been challenged by appeal. Indeed, I trust I may be pardoned for saying that I think it is sometimes carried too far by our brethren, the Chancellors. For I sometimes am called on to try a question of adverse right to land on an issue from Chancery, where a very slight examination would have shewn that it was a mere pretence.

In the case of Ramsay & wife vs. Deas. (2 Des. 239), decided in the year 1804, is a precedent of an issue ordered by the Court as a matter of course, where a title by adverse possession was set up. In Bowman & wife vs. Middleton, (1 Des. 159,) decided in 1789, an issue was ordered to try the title to land sold, under an order of the Court, before the purchaser would be compelled to accept a title. In Wilkin vs. Wilkin, (1 Johns. Ch. 111,) Chancellor Kent says, “the court (Chancery) does not sustain a bill for partition, unless the title be clear.”

These precedents are enough for my purpose, and they shew *117how tenderly the Court of Equity touches a question of adverse title.

I presume it would not meet with the slightest encouragement from any lawyer, that the Ordinary could exercise jurisdiction, or his decree have any effect whatever, on a question of title of land, were it not for the appeal given to the Court of Law, and the direction contained in the Act of ’39, that “such issue in law or fact, shall be made up as may be necessaiy or proper, and shall be tried according to the usage and practice of the said court.” (11 Stat. 42 — 13th sec. of the Act of ’39).

If there be a principle, in the whole body of the law, which declares that an appeal from a court not having jurisdiction of a case to one which could originally hold jurisdiction of it, will rightfully confer jurisdiction on the court otherwise not having it, I confess I have it yet to learn.

In White vs. Kendrick, (1 Brev. 469,) the question was, whether the Act of the Legislature conferring jurisdiction on a magistrate as high as $30, was constitutional. The Court held, that inasmuch as the jurisdiction of a Justice of the Peace at the adoption of the Constitution did not exceed £20 currency, equal to £5 sterling, which is equal to $21 43, that this was the limit of his jurisdiction ; and that the trial by jury, as heretofore used, was invaded by giving cognizance to a Justice of the Peace above that sum. The Judges there did not at all notice the appeal which could have been taken to the Court of Common Pleas. So far, therefore, I think, as precedent is concerned, this case is decidedly against the new reading of the Constitution which is attempted in clothing the Ordinary with jurisdiction by appeal. If an appeal might give jurisdiction, how can that effect be produced on a party who does not appeal, and who, by his silence, places himself on his constitutional rights ?

That the Otdinary possesses a very limited jurisdiction is apparent: originally, he had nothing to do with land : the Act of 1824 gave him jurisdiction for partition of an intestate’s real estate, not exceeding $1000. He never has had a jury, nor the right to hold cognizance of a case settling adverse rights to *118property, real or personal. When he decides a question of title to land, is not that a direct infringement of the constitutional right which is guaranteed to every citizen of the State, by the words of the Constitution “ the trial by jury, as heretofore used, shall forever be inviolably preserved ?” At the adoption of the Constitution, no Ordinary, nor even the superior jurisdiction of Equity, had undertaken to pass on the question of title to land. It had, until then, and indeed until very recently, been supposed that no court, save the Common Pleas, could pass upon it.

In this case, the effect of the Ordinary’s decree is to divest the defendant of a title to land of which he is in possession, and which has been supported by the verdict of a jury approved by the Judge trying the cause. Can it be possible, that such an unjust result, so directly in the face of the Constitution, is to have the high sanction of the Law Court of Appeals 1

Motion granted.

The opinion of the Court was delivered by

The report of the presiding Judge very succinctly sets forth the facts of this case. A majority of this Court are of opinion that the defendant was concluded from objecting to the plaintiff’s title as well upon principle as authority. But it is thought that very grave consequences result from such a conclusion: — the disseizure of a citizen of his freehold by a mode never before having legal sanction in this State and in the very face of his constitutional guaranty. If the very point has not been settled, almost the whole argument has been well presented by Wardlaw, J. which leads to this judgmsnt, in the case of Gates vs. Irick, (2 Rich. 593). A plain and simple statement will be attempted to vindicate the Court from any charge, or proper apprehension even, that the sacred right of trial by jury as heretofore used has been in any manner impaired, or this defendant disseized of his freehold otherwise than by the judgment of his peers or by the law of the land, having reference to any construction heretofore given to these terms in the Constitution by our predecessors in the Courts of this State.

*109The power to partition lands in this State is of great antiquity, as well in the Common Pleas as in Equity. For ceitain purposes moving the Legislature, as recently as 1824, it was thought wise to create a concurrent jurisdiction in the courts of. Ordinary to a limited amount. I have not understood that any general objection exists to the exercise of this power by the Judges in either of these courts.

My first inquiry is, if a proceeding be had in either of the three courts upon a case made, with the proper parties duly summoned and making default, — prosecuted to judgment or the final order for sale according to prescribed forms, — followed up by an actual sale, — compliance by the purchaser and titles delivered,— would either of the parties to such a proceeding be permitted to contest the title of the purchaser, with an allegation of exclusive paramount title in himself? When called upon to shew cause why partition should not be made, though it might be a suit involving his title to the land, yet, failing to make his defence at the proper time, such a judgment, I submit, would conclude him. The purchaser would represent the title of the ancestor, and succeed to all its immunities — As a judgment between the parties upon the same subject matter, if it did not constitute a bar to such a claim, every thing appertaining to such titles may be regarded as unsettled and uncertain. Such is the doctrine of Smith vs. Smith, (Rice, 232). Such principles, certainly, and such precedents, doubtless, are older than he Constitution of 1790, and entirely consistent with its sanctions and guarantees.

My next inquiry is, whether the transfer of a concurrent jurisdiction, to a limited amount, to the court of Ordinary, creates any difficulty in the application of the same principle in a like case. I do not so understand the argument on which this defendant’s rights are based. To hold otherwise, would be utterly subversive of the validity of the proceeding, and amount to a virtual denial of the entire jurisdiction of that court in cases of partition.

But it is insisted that, when the party summoned appears and *110objects with an allegation of exclusive title, then the power of the Ordinary is at an end and the case must be dismissed. This involves the questions whether the jurisdiction of the Ordinary depends alone on the consent of the parties, or whether, thereby, he is restrained by other provisions to be found, either in the Acts of Assembly conferring jurisdiction, or in the supreme law embodied in the Constitution.

The Act of 1824, re-enacted in 1839, (11 Stat. 44,) “ concerning the office and duties of Ordinary,” is explicit. “ If, upon the return of the original summons,” &c. “ there shall, in the opinion of the Ordinary, be no good cause shewn why a division or sale oí the premises should not take place, he shall proceed to determine,” &c. This is the instruction, and there seems at this precise point to be some difference of opinion. If the parties are in default, and the applicant has made the prima facie shewing, without question, “ no good cause” being shewn to the contrary, there is no restraint imposed and the duty is manifest. But when one of the parties summoned appears, and alleges a larger interest than is admitted, or an exclusive title as to a part or the whole, does that mere allegation ipso fado shut out all further investigation on the part of the court and end the suit ? This, at least, is not the reading of the Act, and in the language of Wardlaw, J. in Gates vs. Irick, before cited, and so full to this point, I need only repeat: — “ That the Ordinary’s power is not made to rest upon the consent of the parties, for he is required to proceed in cases where infants and married women are parties, and, by a formal consent entered, may bind absent persons. He is required to form an opinion concerning the causes which may be shewn against a partition which is applied for, and to act upon that opinion. No distinction is made between adverse title set up by a party and other causes. If a serious opposition of title should stop him, then must a mere pretence too, for he only can judge whether a claim be one or the other.” Mark the distinction between this and other legislation to which reference may be made. Because a mere question of title is raised, he is not estopped from all further action by *111the terms of the statute, as in the case even of a law Judge within the summary jurisdiction; nor is he thereupon directed to refer the case to a Court of Common Pleas that an issue may be made up to try the fact; nor is he furnished with a jury to aid his decision; but in all cases his opinion must be formed on the cause shewn, and if, in his judgment, it be not good, he is to proceed. It is in vain to say, in general terms, that wherever a question of title is presented he is estopped. For, as is said elsewhere, “ the title to land is necessarily involved in every such case, whether the decision be made upon default or after consent had, and whether with or without consent.” The plain intendment of the Act, as collected from the phraseology used, was to constitute the Ordinary a judge of the law and fact, in the cases within his jurisdiction, for purposes of partition.

I proceed then to the next inquiry, whether, although the Ordinary shall overrule the defence as to the proceedings before him, and order the sale of the land, the trial by jury as heretofore allowed is in any manner impaired, for to every citizen must be secured this sacred shield. If the Act had prescribed that, on such an issue being tendered before the Ordinary, either party should be entitled to a jury to try the fact, then, certainly, there would have been no ground for apprehension or objection; or if it can be shewn that, because the Ordinary “ proceeds to determine,” the party is thereby excluded from this great constitutional safeguard, the objection may still be well taken. So far from it, the very reverse is the fact, and the Legislature, looking to this right of the citizen, provides, in terms broad enough, in all conscience, to meet every guaranty, by enacting, (Act 1839, sec. 13,) “If any person or persons shall think themselves aggrieved by any judgment, sentence, decree, determination, denial or order of any of the courts of Ordinary, it shall and may be lawful for such person to appeal therefrom to the Court of Common Pleas or Equity,” &c. The party is to file a suggestion, post a rule, and such issue shall be made up, in law or fact, as may be necessary or proper, and shall be tried according to the usage and practice of the said court. Is not this plain, *112direct, ample ? The Legislature has thereby re enacted and reassured the party of his right to jury trial. The ruling of this Court, therefore, in no way substitutes the discretion of an Ordinary for the verdict of a jury; and I cannot perceive how it is apprehended that the practice here vindicated shall in any manner infringe the constitutional guaranty of trial by jury: — and, let it be borne in mind too, that I in no way maintain that because an appeal is given from an inferior to a superior tribunal, that hence jurisdiction is conferred on the former. Jurisdiction is given by the Act, and from that source the power in question is derived. The right of appeal removes all objection to its exercise on the grounds here taken.

There remains a further point to be settled, which, however, follows as a corrollary from what has been shewn. In the case for partition, the Ordinary having ordered the land for sale, and this judgment being acquiesced in, the defendant being a party to that proceeding, is bound by it as though he had made default originally. The judgment, proceeding from a competent tribunal, authorizing the sale of land, and the proceedings remaining of force unless avoided in the manner pointed out by law,— the purchaser being invested with the title of the parties to that proceeding, — this defendant is concluded thereby, and should not now he permitted to controvert that right. The principle may operate hardly upon the particular case before the Court. Vigilance is indispensible to the protection of right, and he who sleeps when his rights are invaded,, must refer his discomfiture to his own indifference and neglect, rather than to the operation of a sound and wholesome general rule. The defendant well knew his rights were.drawn in question; and by the case of Gates vs. Irick, was distinctly advertised of the course of proceeding indicated by the Court. Acting as he did, he might well be regarded as having withdrawn all further contest and as admitting thereby the correctness of the Ordinary’s judgment that his defence was a mere pretence.

That caution which, it is said, so frequently induces the Chancellor to send such questions, in like cases, to the courts of *113law, on a preliminary issue, I submit, in no way weakens (he positions I have taken. The jury trial cannot he secured on appeal as a matter of right, and hence the concession before final judgment. Yet my information of the usage and practice of the Court of Equity does not enable me to say that the mere assertion of title has ever been regarded as interposing an obstacle lo the exercise of jurisdiction. If a pretence may be disregarded in the Court of Ordinary and also in the Court of Equity, which I understand to be conceded, then the conclusion we have attained, in my humble judgment, is authorized.

The case of White vs. Kendrick, (1 Brev. 469,) is thought to settle a question analogous to that raised here. I will not add to an opinion already protracted by stopping to review and compare these circumstances. If I have not already illustrated the difference, I could scarcely hope to do so. One remark 1 will submit, however, that if that case be authority applicable to this, it would eradicate, it seems to me, the whole jurisdiction of the Ordinary in all cases of partition.

The motion for a new trial is granted.