#### THOMAS J. SPARKS v. GRADY SPARKS and Wife, THELMA SPARKS; BELL HENLINE and Husband, NELSON HENLINE.

(Filed 11 October, 1950.)

Constitutional Law § 33: Trial § 18—

It is error for tbe trial court to determine issues of fact raised by tbe pleadings in tbe absence of waiver of tbe constitutional and statutory right to a trial by jury, N. C. Constitution, Art. I, Sec. 19; Art. IY, Sec. 13; G.S. 1-172, G.S. 1-184.

Appeal by defendants from *Budisill, J.,*at tbe April Term, 1950, of Mitchell.

Civil action involving title to real property.

This is tbe second appeal in tbis case. *Sparks v. Sparks,*230 N.C. 715, 55 S.E. 2d 477.

Tbe complaint alleges tbat tbe plaintiff owns certain land in Mitcbell County in fee simple; tbat be is in tbe actual possession of tbe land; tbat tbe defendants wrongfully claim some interest in tbe land adversely to bim; and that be is entitled to a judgment establishing bis absolute ownership of tbe land and removing tbe adverse claim of tbe defendants as a cloud on bis true title. Tbe answer concedes tbat tbe plaintiff bolds title to an undivided one-third interest in tbe land, and avers tbat tbe defendants are tbe fee simple owners of tbe other undivided two-tbirds interest therein.

Tbe cause came on for trial before a jury at tbe April Term, 1950, of tbe Superior Court of Mitcbell County, and tbe plaintiff and tbe defendants undertook to support their respective allegations by testimony. After all tbe evidence on both sides was in, tbe court announced its adoption of tbe following issues: (1) Is tbe plaintiff tbe owner in fee simple of tbe lands described in tbe complaint? (2) Has tbe plaintiff been in tbe adverse possession under color of title to tbe lands described in tbe complaint for more than seven years ?

Although tbe parties bad not waived trial by jury, tbe presiding judge concluded “as a matter of law . . . after considering all of tbe evidence” tbat it was tbe duty of tbe court “to answer tbe issues.” He thereupon answered both issues “yes,” and rendered judgment on such answers declaring tbe plaintiff “to be tbe owner of tbe lands described in tbe complaint in fee simple.” Tbe defendants excepted and appealed, assigning these and other rulings of tbe court as error.

*Hall $ Zachary for plaintiff, appellee.*

*Fonts '& Walson for defendants, appellants.*

*493EbtiN, J.

The Constitution of North Carolina guarantees to every litigant the “sacred and inviolable” right to demand a trial by jury of the issues of fact arising “in all controversies respecting property,” and he cannot be deprived of this right except by his own consent. N. C. Const., Art. I, See. 19. The Code of Civil Procedure provides that issues of fact must be tried by a jury, unless a trial by jury is waived or a reference ordered. G.S. 1-172.

The defendants did not waive their constitutional and statutory right to have the issues of fact joined on the pleadings in this case tried by a jury. N. C. Const., Art. IV, See. 13; G.S. 1-184. This being true, the presiding judge had no authority to answer the issues, and to enter judgment in favor of the plaintiff upon his answers to the issues. In consequence, the judgment is set aside, and the cause is remanded for a new trial to the end that the determinative issues of fact raised by the pleadings may be submitted to a jury for decision. *Crews v. Crews,*175 N.C. 168, 95 S.E. 149; *Cozad v. Johnson,*171 N.C. 637; *Hockoday v. Lawrence,*156 N.C. 319, 72 S.E. 387; *Hahn v. Brinson,*133 N.C. 7, 45 S.E. 359; *Wilson v. Bynum,*92 N.C. 718; *Chasteen v. Martin,*81 N.C. 51; *Hyatt v. Myers,*73 N.C. 232; *Andrews v. Pritchett,*66 N.C. 387.

Error.