Ogburn v. . Booker

BbogdeN, J. The defendant contends that the judgment should be upheld upon the theory that it appears upon the face of the complaint that all oral negotiations between the parties prior to the execution and delivery of the deed and deed of trust were merged in those instruments. He further contends that the various oral agreements occurring after *689 tbe registration of tbe deed and deed of trust, involved a contract to convey land, and bence were unenforceable by reason of tbe fact tbat tbe defendant bad pleaded tbe statute of frauds. Tbe latter contention of tbe defendant, however, is not available for tbe reason tbat tbe answer of tbe defendant is not in tbe record, and there is nothing to indicate to this Court tbat tbe statute of fraud was so pleaded. Nevertheless, the plaintiff expressly alleges that the defendant brought suit against him and that be “was forced to vacate bis home by order of court.” It does not appear whether the judgment of eviction was rendered by a court of a, justice of the peace or by the Superior Court in an ordinary action of ejectment. It is clear, however, that if the plaintiff was evicted by order of the court that we must assume, nothing else appearing, that the court bad jurisdiction of the subject-matter and of the parties. If the judgment of eviction was rendered in a summary proceeding in ejectment, this could only be done upon the theory of the relationship of landlord and tenant, and if the plaintiff bad set up the equities alleged in the present suit, the jurisdiction uf the justice of the peace would have been at an end. C. S., 1416 and 1477. McLaurin v. McIntyre, 167 N. C., 350, 83 S. E., 627. On the other band, if the plaintiff was evicted in an ordinary suit of ejectment in the Superior Court, it was bis duty to plead the equities alleged in the case at bar. In either event the plaintiff, by bis own allegations, has unequivocally demonstrated that be has taken no steps to protect bis rights, if any, according to the orderly processes of the law. Affirmed.