after stating the facts: It is needless to consider the question as to whether the joint answer of the heirs of W. T. Johnson raises an issue of fact, except as to whether the land is susceptible of actual partition without serious injury to the many owners. The answer certainly raises no issue of title.
These defendants in their exceptions to the referee’s report have pointed out with particularity the only matter upon which they demand a jury trial, viz., as to whether the land can be actually divided. Having specified their issue in their exception to the referee’s report, they are necessarily limited to that. Driller Co. v. Worth, 118 N. C., 746.
These defendants are not entitled to have that matter passed on by a jury, because that is not an issue, but only a question of fact to be determined first by the clerk and on appeal by the judge:
The clerk heard the cause and' found the facts fully and ordered’a gale. These defendants appealed to the judge. The judge held as a matter of law “that the answer of these defendants raises issues of fact which should he tried by a jury.” In this he erred.
No issues of title or fact are raised except as to the feasibility of dividing the 50-acre tract of land among a large number of owners. This is only a question of fact.
In Ledbetter v. Pinner, 120 N. C., 455, it is held: “The only controverted fact arising on the pleadings was as to the *275advisability of a sale for partition or an actual partition. Tbis was not an issue of fact, but a question of fact for the decision of the clerk in the first instance, subject to review by the judge on appeal.” Tayloe v. Carrow, 156 N. C., 8, and cases cited.
The order of Judge Lyon is set aside and the cause remanded, to be proceeded with in accordance with this opinion. The costs of this appeal will be taxed against the heirs of W. T. Johnson, whose names are set out in their answer.
Beversed.