Brown v. Southerland.

CONNOR, J., after stating the case: Counsel concede that the exact point presented by the appeal has not been before this Court. The solution of the question depends upon the construction of the Constitution, Art. IV, sec. 27: “The several justices of the peace shall have jurisdiction * * * of civil actions founded on contract wherein the sum demanded shall not exceed two hundred dollars, and wherein the title to real estate shall not be in controversy.” See, also, Revisal, sec. 1419. This section, when analyzed, confers jurisdiction on justices in actions “founded on contract” wherein: 1. The sum demanded shall not exceed $200, and, 2. The title to real estate shall not be in controversy. Here the sum demanded is within the jurisdiction of the justice, but plaintiffs say that the jurisdiction is not given, because the title to land is in controversy. That upon the pleadings it is manifest that the issue raised — the alleged breach of the covenant of seizin — involves the inquiry whether the defendants were seized, that is, had title to the land conveyed in the deed. Defendants say that the answer admits that they had no title, therefore there was nothing to try. This position eliminates the defense that the land was included in *227 the deed by tbe mistake of tbe draftsman, and presents tbe question upon tbe allegation and denial in respect to tbe breach of tbe covenant. The answer admits that tbe deed, as written, covers and includes tbe land in controversy. It is true that in their further defense defendants admit that they bad no such land. Tbe test by which jurisdiction is fixed, when tbe motion to dismiss is made upon tbe complaint, is whether from tbe allegations of fact tbe “amount in dispute” is more or less than two hundred dollars. Froelich v. Express Co., 67 N. C., 1. This Court has uniformly held that when tbe sum demanded, in good faith, is in excess of two hundred dollars, tbe jurisdiction is not ousted by tbe reduction of tbe amount by failure of proof. Martin v. Goode, 111 N. C., 288, in which tbe decided cases ai*e cited. Sloan v. Railroad, 126 N. C., 488. Applying tbe same test here, it is clear that tbe complaint alleges a state of facts which, if true, involves tbe title to land. Defendants, by moving to dismiss on tbe pleadings, cannot oust tbe jurisdiction, provided tbe complaint sets forth facts which present a case in which the title to real estate is in controversy. Tbe fact, if it be conceded, that tbe answer admits the plaintiffs’ right to recover, cannot affect tbe question of jurisdiction. Tbe defendants do not admit that plaintiffs are entitled to recover; on tbe contrary, they set up an equitable defense that tbe land was included in tbe deed by mistake. If they should succeed in establishing this defense, of course tbe plaintiff would not be entitled to recover, either upon the ground that tbe deed would be corrected and thereby tbe land, in respect to which there is a breach of tbe covenant, eliminated, or tbe plaintiff would take only nominal damages. It was the evident purpose of tbe framers of tbe Constitution, while enlarging tbe jurisdiction of tbe justices of tbe peace in respect to tbe sum demanded, to exclude from their jurisdiction tbe trial of title to real estate. We can readily see that in actions for breach of covenants it would be almost impossible to avoid tbe trial *228 of issues involving snob title. The very matter in controversy here is whether the defendants were seized of the land conveyed, thus presenting, necessarily, the question of title and thereby ousting the jurisdiction of the justice. It will be observed that the statute further provides that if the question of title is not raised upon the pleadings, but shall appear to the justice, “on the trial,” to be in controversy, he shall dismiss the action. We- are of the opinion that his Honor was in error in granting the motion to dismiss. In the case of Templeton v. Summers, 11 N. C., 269, cited by defendants, it was manifest that the title to land was not involved, and what is said there does not conflict with our conclusion. Plaintiffs call our attention to the fact that the case on appeal states that an action between the same parties on the same subject-matter had been dismissed before a justice of the peace of Sampson County, thereby invoking the provisions of sec. 1424 of the Revisal of 1905, which provides: “When an action before a justice is dismissed upon answer and proof by the defendant that the title to real estate is in controversy in the case, the plaintiff may prosecute an action for the same cause in the Superior Court, and the defendant shall not be permitted, in that Court, to deny the jurisdiction by an answer contradicting his answer in the justice’s court.” Defendants insist that plaintiffs cannot take advantage of this section, because the judgment dismissing the action by the Justice was not pleaded. Without passing upon that question, it is sufficient to say that it does not appear that the action was dismissed “upon answer and proof by the defendant that the title to real estate was in controversy,” and this cannot be .inferred. Judgment dismissing the action must be ° Reversed.