#### JAMES B. GOODE and Wife, ELIZABETH R. GOODE; JOSEPH M. ROGERS, MARTHA O. ROGERS, JOHN T. ELDRIDGE and Wife, MILDRED A. ELDRIDGE; and WILLIAM J. ROGERS v. JESSE V. ROGERS.

(Decided February 27, 1900.)

Partition of Realty — Owelty—Questions of Fact — Issues of Fact — Payment, Statute of Limitations, Counterclaim —Premature Appeal.

1. Where proceedings for partition of realty were prosecuted to filial decree in 1876, confirming the allotment in severalty among those entitled, and assessing owelty upon the more valuable share in favor of the less valuable to secure equality in partition, and notice is issued, in 1899, to the owners of the more valuable share to show cause why execution should not issue for the sums assessed, to which they set up the defense of payment, statute of limitations, and counterclaim — these pleas are not questions of fact for the Court, but issues of fact for the jury.

2. An appeal from the ruling of his Honor, directing the cause to be placed upon the civil issue docket for trial by jury, is premature.

Special Proceeding for partition, of land, beard upon appeal from tbe Cleric, before Bowman, J., at Eall Term, 1899, of NoethamptoN Superior Court.

Tbe cause bad proceeded to final decree in 1879, allotting the shares and adjudging owelty against the most valuable share in favor of tbe less valuable.

This was a notice to show cause why execution should not issue for tbe owelty adjudged — tbe answer set up tbe defense of payment, statute of limitation, and counterclaim.

His Honor adjudged these were issues of fact for tbe jury, and directed tbe cause to be placed on tbe civil issue docket for trial. Petitioners excepted and appealed.

*63 Messrs. Wmborne & Laiorence, fox appellant.

Messrs. B. B. Peebles, and O. G. Peebles, for appellees.

Faircloth, C. J.

Tbis was an action for partition, and a final decree was entered in 1876, charging certain lots with the payment of owelty in favor of a certain lot or lots. In 1899, the petitioners moved on notice for an execution to collect the amounts due them by said decree. The respondents answered and pleaded payment, and the statute of limitations, etc. On appeal to the Superior Oourt, his Honor was of opinion that the record and pleadings raised issues of fact to be tided by a jury, and so ordered. The petitioners contended that only questions of fact were raised, and that they should be decided by the Court, and appealed from the order directing a jury trial.

The answer of respondents presents important questions. We are, however, not required to consider them, for the reason that the issues presented have not been tided below'. These pleas present serious and important issues of fact. McDonald v. Dickson, 85 N. C., 250; Isler v. Murphy, 71 N. C., 436.

The appeal was clearly premature, and can not be entertained. Hailey v. Gray, 93 N. C., 195; University v. Bank, 92 N. C., 651.

Appeal dismissed.'