September 21, 1909. The opinion of the Court was delivered by
MR. JUSTICE HYDRICK.
This is an action for partition. Certain of the defendants set up an independent claim of title in themselves to the land sought to be partitioned. At the conclusion of the testimony offered by the plaintiffs, these defendants moved the Court for a nonsuit, which was granted, and judgment was entered accordingly.
This Court has frequently decided that it is error to grant a nonsuit in such a case. Woolfolk v. Graniteville, 22 S.C. 332; McClenaghan v. McEachern, 47 S.C. 446, 25 S.E., 296; Barnes v. Rodgers, 54 S.C. 115, 31 S.E., 885; Gilreath v. Furman, 57 S.C. 289, 35 S.E., 516; Railway v. Beaudrot, 63 S.C. 266, 41 S.E., 299.
If the party claiming partition offers no testimony tending to establish his claim, a motion to direct the verdict is the proper remedy. Barnes v. Rodgers, and Gilreath v. Furman, supra.
The judgment of nonsuit is reversed and a new trial granted.