Barneycastle v. . Walker

*200 Abhe', I. (after stating the facts). The sole question presented by the record is, whether the Superior Court liad jurisdiction of the action ? The position taken by the defendant’s counsel, if we understand his argument, was, yielding the agreement as to the rent of the premises for the year 1881 — -it was only a contract for the use and occupation of the land for a year, and that there was an implied contract on the part of the lessor that he would not disturb the possession of the lessee during the time of his lease, and the entry of the defendant, as heir of the lessor, was a breach of that implied contract, and the action was to recover damages for the breach, and as the damages were laid at a sum under two hundred dollars, the Superior Court had no jurisdiction of the action. He referred to the summons as proof that the action was ex contraetu, because the defendant was summoned as administrator of W. Walker. But the answer to that is, that the summons was against the defendant as such administrator, and against him individually, and the complaint seeks to charge him only in -his individual character. This meets the objection. For the only office of the summons is to bring the parties before the Court, and the Court, in determining the nature of the action, can only look to the complaint. Wilson v. Moore, 72 N. C., 558. The counsel for the defendant has overlooked the distinction between an executory and an executed contract. The first, as defined by Blackstone, is only a chose in action, but the latter is a chose in possession, and differs nothing from a grant. 2 Blk. Com., page 443. Thus, in a lease for years, which he defines to be “a contract for the possession of land and tenements for some determinate period, and the lessee enters thereon, the lease does not vest any estate in the lessee, but only gives him a right of entry on the tenement, which right is called his interest in the term; but the estate does not vest in him until he makes an actual entry and thereby accepts the grant, and is in possession, *201 not properly of the land, but of the term. 2 Blk., 140 and 144. Before the lessee enters and takes possession, his right lies only in contract, but after entry the contract is executed and the estate is absolutely vested in him, as if by grant, for the period of time mentioned in the lease, whether in writing or by parol, unless it should contain some stipulations upon the breach of which the estate is forfeited. If the defendant had taken possession of the land before the entry of the plaintiff, there would have been much force in his argument, and the authorities cited by him would have been applicable to that state of facts. But here there were no covenants or stipulations in the lease, and the estate for a year vested absolutely in the plaintiff by his entry, before the trespass committed by the defendant, as fully and effectually as though he had a lease for life or a deed in fee simple. There is no implied contract that the lessor will not molest the lessee in his possession; but there is an implied condition to that effect, upon a breach of which the lessee is discharged from his obligation to payment. Taylor’s Landlord and Tenant, section 386. The defendant, while the plaintiff was thus in possession under his lease, entered upon the premises and dispossessed him. What was his remedy ? Most clearly an action ex delicto. Under the former practice an action of trespass quare clausum fregit, but under the present system an action for a tort, of which a justice of.the peace had no jurisdiction before the act of 1876. Nance v. the Carolina Central Railway Company, 76 N. C., 9; and since that act only a concurrent jurisdiction with the Superior Court when the damages claimed do not exceed fifty dollars. Here the damages claimed are one hundred and seventy-five dollars, and the jury has assessed them at one hundred dollars. The right of a lessee for years to sue his lessor for a trespass upon the land demised, during the continuance of the lease, is expressly decided in the case of Hatchell v. Kimbrough, 4 Jones, 163. There is no error. The judgment of the Superior Court is therefore affirmed. No error. Affmned.