Forsythe v. . Bullock , 74 N.C. 135 ( 1876 )

The defendant denied that he rented the premises; and as a further defence alleged that he had executed a deed in fee simple to the plaintiff for the same; that said deed was delivered as a mortgage, and that he had made large payments thereon. Upon this allegation the defendant moved to dismiss the proceeding, on the ground that a Justice of the Peace had not jurisdiction, because the title to the real estate was in controversy.

The motion was overruled and judgment rendered for the plaintiff, whereupon the defendant appealed to the Superior Court.

Upon the trial of the cause in the Superior Court the motion was again made, upon the same ground and was overruled by his Honor.

The defendant offered to prove that the said deed, although (136) upon its face purporting to be an unconditional conveyance, was in fact intended as a mortgage for money borrowed. The evidence was conflicting as to whether or not the defendant had rented the premises from the plaintiff.

His Honor being of the opinion, that if the deed was in fact intended as a mortgage, the defendant's remedy was by summons for relief, to reform the deed, rejected the evidence upon that point and the defendant excepted.

The jury returned a verdict in favor of the plaintiff, whereupon the defendant moved for a venire de novo. Motion overruled, and judgment in favor of the plaintiff. The defendant appealed. 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 lessee who holds over after the expiration of his term, where there is no other relation than that of lessor and lessee to complicate the question, for in such cases the tenant is estopped to deny the landlord's title.

But, as is said in Turner v. Love, 66 N.C. 413, a tenant might always show an equitable title in himself against the legal title of his landlord, or any facts which made it inequitable in the landlord (138) to use his 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, although 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 true, 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. But 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 were instituted.

2. That the evidence offered by the defendant was competent 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.

Cited: Heyer v. Beatty, 76 N.C. 32; Foster v. Penry, 77 N.C. 161;Davis v. Davis, 83 N.C. 74; Nesbitt v. Turrentine, 83 N.C. 537; Hughes v.Mason, 84 N.C. 474; Shew v. Call, 119 N.C. 453; Houser v. Morrison,146 N.C. 250; Lawrence v. Eller, 169 N.C. 214; Timber Co. v. Yarbrough,179 N.C. 340; Hargrove v. Cox, 180 N.C. 362, 363; Realty Co. v. Logan,216 N.C. 27; Simons v. Lebrun, 219 N.C. 46.

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