tions were not filed with the clerk of Court by the said creditors, but do appear in the report of the special master.

1

After consideration of the matter, I am of the opinion, and so rule, that the appointment of the special master by Judge Rice, under the law, clothed him with all of the powers of a regular master, and that Judge Sease's decree continued him in that capacity to make the sale and to otherwise pass upon certain questions ordered by Judge Sease for his adjudication, and that the fact that the sale did not occur at the time nominated in the decree did not deprive this special master of his jurisdiction to continue as such until the conclusion of the case.

1379, 1380, Civil Code.

Sections

There was no provision in the decree of the Court directing the method to be pursued in the determination of the homestead and dower, and the practicability of the same being set off in kind. He followed, therefore, the usual course in matters of this character, giving notice to the interested parties to select appraisers for that purpose.

All parties acquiesced in the appointment of the appraisers, except the defendants above mentioned. The plaintiffs' attorney selected, on behalf of the plaintiff, his appraiser. The defendant, Marion M. Still, claimant in homestead and dower, selected hers, and the special master appointed the third. The other creditors, defendants, refused to co-operate with the plaintiffs' attorney in the selection of an appraiser, but relied entirely upon the objection that the master had become functus officio. I am of the opinion, therefore, that the objection to the action of the master should be, and is, overruled, because the plaintiffs' attorney in charge of the litigation having acted on behalf of the creditors' class, any individual creditor is estopped by conduct in the objection to the action of the master.

The further objection that the homestead and dower assessment are excessive in value appear to have been served upon the attorneys in the case, but do not appear on the

original record as served by the said objecting attorneys upon the special master and by him filed with his report in the clerk's office.

3

It was held, in Chaffee v. Ransey, 54 S. C. 517, 32 S. E. 522, that exceptions to the homestead appraisement must be filed in the office of the clerk of Court within the limited time, and that service on the judgment debtor will not suffice; but, waiving, for the purposes of this decision, this point, there does not appear in the exceptions any evidence going to establish the claim that the assessments were excessive and wrongful beyond the bare statement of that fact in the exceptions. It is, therefore, ordered, that the exceptions to the appraisers' sworn report, accompanied by the plats, etc., be, and the same are hereby, overruled.

4

As to the remaining question raised by the objecting creditors, as to the amount of fees fixed for the plaintiffs' attorney, and that the action of the master in establishing these fees at this time, in advance of the sale of the property and the actual bringing into the Court the net funds realized therefrom, I am of the opinion that this question should be reserved, and that the action of the master in this particular was premature, and it is, therefore, ordered and adjudged, without expressing any opinion as found by the master as to the value of the services, but simply because the same had not yet occurred, that said exception be sustained.

Messrs. James Simons, Mitchell & Smith and Nathans & Sinkler, for appellant, cite: As to assignment of dower and homestead: 94 S. C. 492; Civil Code, secs. 3711, 3720, 3485 to 3493. As to special master: Secs. 1379, 1380; 76 S. C. 418; 83 S. C. 495; 43 S. C. 316; 28 S. C. 485.

Messrs. Mayfield & Free, for Mrs. M. M. Still, respondent, cite: As to special master: Civil Code, secs. 1373, 1379.

Homestead: Civil Code, sec. 3711. Dower: Civil Code, sec. 3493.

Mr. R. J. Southall, for Barrett & Co., respondents.

February 10, 1917.

The opinion of the Court was delivered by MR. JUSTICE WATTS.

This is an appeal from a decree of Hon. J. W. DeVore, Circuit Judge, made in this case. This is the second appeal in the case. The case is reported in 102 S. C. 19, 86 S. F.

204.

For the reasons stated by the Circuit Judge in his decree, it is the judgment of this Court that the judgment of the Circuit Court be affirmed.

Judgment affirmed.

9631

JENNINGS v. BOWMAN.

(91 S. E. 781.)

1. APPEAL AND ERROR-EXCEPTIONS-NECESSITY OF.-Where, in an action on a contract, plaintiff relied on defendant's waiver of his strict performance, a verdict for defendant without exception thereto carried the issue of waiver out of the case.

2. CONTRACTS- - PARTITION AGREEMENT CONSTRUCTION-TIME.-A contract for the partition of lands owned by the parties as tenants in common provided that each party should have the right to survey the lands, and any excess or shortage in acreage over the acreage stated in the deeds should be paid for or deducted at the rates therein; the surveys to be made within 90 days from the date of the contract, or otherwise the acreage stated in the deeds should stand. Plaintiff did not complete the survey within 90 days, and defendant denied his request for an extension of time. Held, that the contract made time of its essence, and plaintiff could not recover for an excess shown by a survey subsequently made.

Before SHIPP, J., Sumter, Fall term, 1915. Affirmed.

Action by L. D. Jennings against W. A. Bowman. From a judgment for defendant, plaintiff appeals.

The agreement mentioned is as follows:

This agreement made and entered into by and between W. A. Bowman and L. D. Jennings, witnesseth:

That the parties hereto, now the owners as tenants in common of the lands herein referred to, have agreed to a division of the same, and that in and by said division, W. A. Bowman is to take the parcel of ninety-seven (97) acres of land, originally purchased from Neill O'Donnell by deel recorded in the office of the C. C. C. P. for Sumter county, in Book P. P. P., at page 321; a parcel of one hundred and five acres, being the part of the Knox place lying southwest of the public road from Sumter to Dalzell; a parcel of land of seventy-nine (79) acres, more or less, originally purchased by Bowman and Segars from J. J. Britton, Jr., and the half interest of L. D. Jennings is to be conveyed to W. A. Bowman by deed dated this day, based upon a valuation of fifty-five ($55) dollars per acre. W. A. Bowman is also to take and there is to be conveyed to him, two-thirds interest in and to the land known as the Yeadon and Haynsworth land, containing five hundred thirty-eight (538) acres, more or less, which is to be conveyed to him at a valuation of forty ($40) dollars per acre. At these figures, W. A. Bowman is to pay L. D. Jennings twenty-two thousand and seventyfour ($22,074) dollars.

As part payment of the same, W. A. Bowman agrees to pay off and discharge one-half of the indebtedness, due by L. D. Jennings, on the mortgage held by Yeadon and Haynsworth on the five hundred thirty-eight-acre tract of land, and he is to assume and pay off the mortgage of three thousand dollars held by J. J. Britton, Jr., on the seventy-nineacre tract of land, leaving the amount of fifteen thousand, one hundred ninety-four dollars to be paid by W. A. Bowman to L. D. Jennings.

L. D. Jennings is to take all the remainder of the Knox land, estimated at eight hundred forty-one (841) acres, at fifty-five ($55) dollars per acre, and the half interest of W. A. Bowman in said land is to be conveyed to him by deed dated this day. The total purchase price of the said interest in said land is the sum of twenty-three thousand one hundred twenty-seven ($23,127) dollars, and to this is to be added five hundred fifty ($550) dollars, the value of the one-half interest in twenty acres of land, to be conveyed by M. E. Bowman to L. D. Jennings this day, making a total due by L. D. Jennings to W. A. Bowman of twenty-three thousand six hundred seventy-seven ($23,677) dollars.

L. D. Jennings assumes and agrees to pay off and discharge one-half of a certain mortgage executed by Bowman and Segars to R. I. Manning, recorded in Book 57, page 684, amounting to twenty-five hundred dollars, one-half the mortgage of Bowman and Segars to Security Life and Annuity Company, amounting to seven thousand five hundred dollars, leaving a net amount due by L. D. Jennings to W. A. Bowman of the sum of thirteen thousand six hundred and seventy-seven ($13,677) dollars.

That L. D. Jennings is to pay the full amount of the mortgages held by Security Life and Annuity Company for $15,000, and by R. I. Manning for five thousand dollars above referred to, and W. A. Bowman is to pay the full amount of the mortgages held by Britton for three thousand dollars and by Yeadon and Haynsworth for ten thousand seven hundred sixty ($10,760) dollars. Interest is to be paid up to January 1, 1914, and the assumption of said mortgages is with interest from January 1, 1914.

The parties hereto agree hereby to forthwith, and as speedily as possible, remove from said lands other encumbrances than those herein mentioned, so as to leave said lands free and clear of encumbrance except for the mortgages herein mentioned as assumed by the parties hereto respectively.