Supreme Court of North Carolina, 1876

Forsythe v. . Bullock

Supreme Court of North Carolina · Decided January 5, 1876 · Settle

74 N.C. 135

Counsel

Hargrove , with whom was Venable for the appellant cited: McCombs v. Wallace , 66 N.C. 481 ; McMillan v. Love , 72 N.C. 18 ; Green v. Wildar, Ibid. , 592; Turner v. Lowe , 66 N.C. 413 ; and Credle v. Gibbs , 65 N.C. 192 . Edwards, Batchelor Son, Peace and Young, contra argued: A Justice of the Peace has no jurisdiction of action by purchaser at execution sale against defendant in the execution. Credle v. Gibbs , 65 N.C. 192 , Doolin v. Howard , ___ N.C. 433. Nor of an action by the purchaser at a sale under a deed in trust against the trustor. McCombs v. Wallace , 66 N.C. 481 . Froelick v. So. Ex. Co. , 67 N.C. 1 , shows jurisdiction of Justices of the Peace in matters of contract: Has no jurisdiction upon action for deceit in sale of a mule. Bullinger v. Marshall , 70 N.C. 520 ; Lutham v. Rollins , 72 N.C. 455 . But if one takes my horse and sells it, and receives the money , I may waive the tort and sue for money had and received to my use, and if the sum does not exceed two hundred ($200) dollars, the jurisdiction belongs to a Justice of the Peace. Bullinger v. Marshall supra; Winslow v. Weith , 66 N.C. 432 . (137) No jurisdiction of proceedings of forcible entry and detainer. Perry v. Tupper , 70 N.C. 538 ; Railroad v. Johnson, Ibid. , 509; State v. Yarborough, Ibid. , 250. Contract to convey land, plaintiff pays thirty ($30) dollars for outstanding incumbrance to perfect his title. Justice of the Peace has jurisdiction of action to recover this sum. Templeton v. Summers , 71 N.C. 269 . Landlord and Tenant Act does not apply to a mortgagor who is allowed to remain in possession, etc. Greer v. Wilbar , 72 N.C. 592 ;. 18; Battle's Revisal chap. 64, Sec. 19; Chapter 63, Secs. 16 and 17; Constitution, Article IV, sec. 33. Tenant can never dispute his landlord's title until he yields possession. Abbott v. Cromartie , 72 N.C. 294 ; Turner v. Lowe , 66 N.C. 413 . A Justice of the Peace having jurisdiction to try the principal question, has jurisdiction to try every incidental question which may arise in the progress of the action. Haines v. Dalton . 14 N.C. 91 ; Garrett v. Shaw , 25 N.C. 395 .

Opinion of the Court

Settle, J.

A Justice of the Peace is prohibited by the Constitution from entertaining jurisdiction of any action wherein the title to real estate shall be in controversy.

This does not conflict with any of the decisions, where it has been held, that a lessor may take summary proceedings before a Justice of the Peace, to recover possession from a lersee who holds over after the expiration of his term, where there is no other relation than that of .lessor and lessee to complicate tire question, for in such cases the tenant is estop-ped to deny the landlord’s title.

But, as is said in Turner v. Love, 66 N. C. Rep., 413, a tenant might always show an equitable title in himself against the legal title of his landlord, or any facts which made it in *138 equitable in the landlord to use Ms legal estate to turn him out of possession.

In the case at bar, the defendant offered to prove that the deed for the premises, made by him to the plaintiff, althougli on its face purporting to be a conveyance in fee simple, was. in fact intended as a mortgage, to secure the payment of borrowed money, and was delivered as such, and that he, the defendant, had made large payments thereon. His Honor, being of opinion that, if this defence was time, the proper remedy for the defendant was by summons for relief to reform the deed, rejected the evidence.

In Turner v. Love, supra, it is said when law and equity were administered by distinct tribunals, the tenant was obliged to go into a Court of Equity for that purpose. Rut now, that, they are administered by the same court, and without any distinction of form, the tenant can set up in his answer any equitable defence he may have to his landlord’s claim. If such a defence cannot be set up in the Superior Court, it cannot anywhere, for we have no separate Court of Equity. Our conclusion is:

1. That his Honor should have dismissed the proceedings for want of jurisdiction in the Justice of the Peace, before whom they wore instituted.

2. That the evidence offered by the defendant was compe-teet to show that it was not the simple case of lessor and lessee, which is embraced by the landlord and tenant act.

There must be a venire de novo.

Per Curiam. Venire de novo.

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