Peck v. . Culberson , 104 N.C. 425 ( 1889 )

Clark, J.

— after stating the facts as above: This was an action for a balance of $100 due on a note given for the purchase money of land, and, though the plaintiff asks, in his complaint, that the land be condemned for the payment of his debt, the jurisdiction is determined, not by the remedy he asks, but by what the facts alleged in his complaint will entitle him to demand. There is no vendor’s lien for purchase money of land in this State. Womble v. Battle, 3 Ired. Eq., 182; Cameron v. Mason, 7 Ired. Eq., 187; Simmons v. Spruill, 3 Jones’ Eq., 9. The Constitution does not change this, but simply provides that no property shall be exempt from sale under execution issued on a debt contracted for the purchase thereof. Smith v. High, 85 N. C., 93.

Upon the original complaint, it is clear the Superior Court had no jurisdiction unless title to land is in controversy, as there was no equitable element set out, and the “sum demanded” was less than $200. The Code, §834. The plaintiff relies upon his amended complaint, which is not denied, and claims that, by reason of the judgment in the former action that title to land is in controversy, that fact is already adjudicated between the parties. Section 838 of The Code, in substance, provides that, when an action is begun before a magistrate, and the defendant pleads that title to real estate is in controversy, and, upon proof, the action is dismissed upon that ground, the plaintiff may prosecute an action for the same cause in the Superior Court, and the defendant shall not be admitted, in that Court, to deny the jurisdiction.

It is true that, in this ease, the magistrate overruled the defendant’s plea, but, on an appeal by the defendant to the Superior Court, that Court found that the'title to real estate was in controversy, and dismissed the action on that finding, as appears by the judgment. Such action of the Superior Court, reversing the magistrate’s judgment, has, in purview of section 838, exactly the same effect as if the judgment of dismissal had been originally entered in the naagistrate’s Court, as the appellate Court declared should have been done. The judgment that a magistrate’s Court did not have jurisdiction of this same cause of action, and that title to real estate would come in controversy, was procured by defendant’s persistence, and in a suit between himself and the plaintiff. It is res judicata. It may be that such judgment was erroneously made, but that cannot be inquired into in this collateral way.

It would be hard to imagine a case in which section 838 would apply, if not to this. It would be a hardship if a defendant could have an action dismissed by a magistrate on his plea that title to real estate is in question, and then, when suit is brought by the same plaintiff for the same cause of action in the Superior Court, he should be allowed io plead that title to land did not come in controversy, and have the cause dismissed there. To prevent such absurdity, this statute was passed, so that if, on defendant’s motion, it is adjudged in the magistrate’s Court that title to real estate will come in controversy, such finding shall be conclusive between same parties in the new action. A somewhat similar rule prevails in criminal actions, when the defendant pleads, in abatement to the jurisdiction, that the indictment is pending in the wrong county. If such plea is found for defendant, and the cause is removed to the county suggested by him, this is conclusive upon a trial in the latter county (The Code, §1194); and, on a plea in abatement for a misnomer, if the name set up by defendant is admitted or found for him, it is conclusive and cannot be, afterwards, denied.

It was error to dismiss the action, and the Court should have proceeded to a trial upon the merits.

Reversed.