Allen v. . Griffin

Davis, J., (after stating the case as above). The plaintiffs-move in this Court to affirm the judgment, “upon the ground that no exception was taken by the defendant to the said judgment, and no errors are assigned in the statement of the case or in the record, for consideration and revision by the Court.” The case was settled by the Court “ as upon disagreement, by consent.” It was not stated by the appellant,, and as stated by his ILonor, it presents concisely and clearly the matter in controversy, and the “ ground of error is sufficiently assigned ” within the ruling in Lytle v. Lytle, 94 N. C., 522. Neither by the authority of that case, nor by Pleasants *122 v. The Rail Road, 95 N. C., 195, nor Justice v. The Rail Road, 96 N. C., 412, nor Rule 7, can the motion to affinn be sustained. Was there error in the judgment? Two issues were submitted, one was set aside as against the weight of evidence, and upon the other, judgment was rendered for the plaintiffs. With'this judgment the defendant was dissatisfied, and from it he appealed; and it is not necessary “to roam through the record ” or to have a “ chart and compass” to find the alleged ground of error. Was the first issue necessary to a just determination of the action? If so, the finding of the jury upon that issue having been set aside as against the weight of evidence, the •defendant was entitled to a new trial. If the land in dispute was embraced in the deed from R. L. Allen to the defendant, might not the defendant notwithstanding the lease to Lassiter and the sub-lease by Lassiter to himself, set up as against Allen or his heirs, after the expiration of the lease, the title which he himself had acquired from Allen? In a Court of Equity would not Allen be es-topped by his deed from asserting his right of possession ? No proposition is better settled as a rule of law, than that a lessee is not permitted while continuing in possession to •dispute the lessor’s title. He must surrender the possession before he can contest the title. But as was said in the case •of Davis v. Davis, 83 N. C., 71, Chief Justice Smiti-i, delivering the opinion: ‘‘ The rule does not preclude the tenant from showing an equitable title in himself, or such circumstances as under our former system would call for an interposition of a Court of Equity for relief, and which relief may now be had in one action.” Now that law and equity “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 claims.” *123 “ Calloway v. Hamby, 65 N. C., 631,” says Rodman, Judge, “ is a case in which that was successfully done, and the defendants were held entitled to a specific performance of the plantiff’s covenant to convey the land.” We think the first issue was a proper one, and the defendant is entitled to a new trtal. Error. Reversed.