Forsythe v. . Bullock

Settle, J. 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 lersee who holds over after the expiration of his term, where there is no other relation than that of .lessor and lessee to complicate tire question, for in such cases the tenant is estop-ped to deny the landlord’s title. But, as is said in Turner v. Love, 66 N. C. Rep., 413, a tenant might always show an equitable title in himself against the legal title of his landlord, or any facts which made it in *138 equitable in the landlord to use Ms 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, althougli 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 time, 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. Rut 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 wore instituted. 2. That the evidence offered by the defendant was compe-teet 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.