Citation Numbers: 59 S.E. 693, 146 N.C. 248
Judges: HOKE, J.
Filed Date: 12/4/1907
Status: Precedential
Modified Date: 1/13/2023
On the issues submitted, there was a verdict for plaintiff, judgment on verdict, and defendant excepted and appealed, assigning for error that the court should have dismissed the action for want of jurisdiction in the justice to try the cause.
After stating the case: The authorities of this State have established the principle that the remedy by summary proceedings in ejectment given by the landlord and tenant act (Revisal, sec. 2001, et seq.) is not coextensive with the doctrine of estoppel arising where one enters and holds land under another, but is restricted to the cases expressly specified in the act, and where the relation between the parties is simply that of landlord and tenant; and when, on the trial of such a proceeding, it is made to appear that the relation existing is that of mortgagor and mortgagee, giving the right to an account, or vendor and vendee, requiring an adjustment of equities, a justice's court has no jurisdiction of such questions, and the proceeding should be dismissed. *Page 182 Parker v. Allen,
We are of the opinion that a proper application of the doctrine requires that the present action should be dismissed for want of jurisdiction in the justice's court. From the evidence offered on the triad, it appears that in February, 1904, plaintiff sold and conveyed to defendant a house and lot in Wilkesboro for the sum of $2,800, and took notes and mortgage, or deed of trust, to secure the purchase price, one note being for $1,000 and the second for $1,800, etc.; that defendant made some payments, but failed to comply with the contracts, and on 15 September, 1905, defendant reconveyed the property to plaintiff, and on 16 September plaintiff leased the property to defendant at the price of $4 per week, with a provision that on default of any of the payments defendant could be evicted without notice. And on the same day (16 September, 1905) plaintiff gave defendant a written option for sixty days to purchase the property at $2,800, less payments already made. Defendant continued to hold the property and has remained in possession until the present time, having the interest conferred by these contracts and the conduct of the parties under and in reference to them. (251) There was admission made that defendant had paid $800 or $900 on the purchase price to September, 1905, and evidence tending to show that since that date defendant had at different times paid as much as $189.50 in money and other articles of value, and had further deposited in some bank a note of one Crouch, to the amount of $1,000, the proceeds of which, when collected, were to be applied on the *Page 183
purchase price. The testimony does not clearly disclose the exact nature of the arrangement between the parties as to the Crouch note, but it tends to show that plaintiff has asserted some interest and control over this note and its proceeds as applicable to his claim under the contract. There is grave doubt, on the face of these contracts and the evidence as it now appears, if the relationship of vendor and vendee, as it was established by the original contract between the parties in February, 1904, has ever been changed or materially affected by these subsequent agreements, on the principle established by the decision of Dawkins v.Patterson,
There are decisions here and elsewhere to the effect that a mortgagee of property, after default, and a vendor, under an executory contract, may at times rent the property to the mortgagor or vendee in possession, as inCrinkley v. Edgerton,
There was error in refusing to dismiss the action for want of jurisdiction in the justice, and the judgment is
Reversed.
Parker v. . Allen , 84 N.C. 466 ( 1881 )
Forsythe v. . Bullock , 74 N.C. 135 ( 1876 )
Calloway v. . Hamby , 65 N.C. 631 ( 1871 )
McLeod v. . Bullard , 86 N.C. 210 ( 1882 )
Abbott and Foster v. . Cromartie , 72 N.C. 292 ( 1875 )
Heyer v. . Beatty , 76 N.C. 28 ( 1877 )
Credle v. . Gibbs , 65 N.C. 192 ( 1871 )
Wm. McCombs v. . Albert Wallace , 66 N.C. 481 ( 1872 )
E. C. Turner v. . G. A. Lowe , 66 N.C. 413 ( 1872 )
McLeod v. . Bullard , 84 N.C. 515 ( 1881 )
Francis v. West Virginia Oil Co. , 174 Cal. 168 ( 1917 )
Simons v. . Lebrun , 219 N.C. 42 ( 1941 )
Hobby v. . Freeman , 183 N.C. 240 ( 1922 )
Howell v. . Branson , 226 N.C. 264 ( 1946 )
McIver v. . R. R. , 163 N.C. 544 ( 1913 )
Rouse v. . Kinston , 188 N.C. 1 ( 1924 )
Jones v. Swain , 89 N.C. App. 663 ( 1988 )
Springs v. . Refining Co. , 205 N.C. 444 ( 1933 )
Insurance Co. v. . Totten , 203 N.C. 431 ( 1932 )
Perry v. . Perry , 190 N.C. 125 ( 1925 )
Dean v. . Duvall , 208 N.C. 822 ( 1935 )