Carnegie v. Perkins

• Decision Date: 17 March 1926
• Docket Number: 151.
• Parties: CARNEGIE v. PERKINS.
• Court: North Carolina Supreme Court

131 S.E. 750

191 N.C. 412

CARNEGIE v. PERKINS.

No. 151.

Supreme Court of North Carolina

March 17, 1926

Appeal from Superior Court, Pitt County; Stack, Judge.

Action by Durham Carnegie against Joe Perkins. Judgment for plaintiff, and defendant appeals. No error.

Defendant who paid rent, held debarred from asserting any equitable right or title in property.

A tenant is estopped by his relationship to deny his landlord's title.

The issues submitted to the jury and their answers thereto were as follows:

"(1) Did the defendant rent the room in the house in question of the plaintiff and agree to pay $1 per week therefor, as claimed by the plaintiffs? Answer: 'Yes.'

(2) Does the defendant wrongfully hold over, and has his term expired, as claimed by the plaintiffs? Answer: 'Yes.' "

The judgment of the court below was as follows:

"This cause coming on to be heard before his honor A. M. Stack and a jury, upon an appeal from B. F. Tyson, justice of the peace, and being an action by the plaintiff against the defendant on a rental contract for the payment of rent at $1 per week, alleging that the contract was breached by the defendant on the 1st day of May, 1924, and demanding that payment of rent be had and for the possession of the premises, and the issues of record having been submitted to the jury wherein the jury say that there was a contract between the plaintiff and the defendant, wherein the defendant agreed to pay $1 per week rent for room in the house of the plaintiff, and that the defendant wrongfully holds over, and that his term has expired, and that the plaintiff is entitled to the possession of the property as established by the issues of record and the answers thereto by the jury. It is now, thereupon, on motion of S. J Everett, attorney for the plaintiff, ordered, adjudged, and decreed that the plaintiff recover of the defendant rent at $1 per week from May 1, 1924, and interest thereon until paid, and that by reason of the breach of contract of the defendant the plaintiff is entitled to the possession of the premises unlawfully held by the defendant, Joe Perkins, and it is adjudged that the plaintiff is entitled by reason thereof to the possession of the same and that the cost of this action be taxed against the defendant."

The defendant made numerous exceptions and assignments of error. The main ones will be considered in the opinion.

Julius Brown, of Greenville, for appellant.

S. J. Everett, of Greenville, for appellee.

CLARKSON J.

The only material assignments of error by defendant necessary to be considered are as follows:

"(1) At the close of the plaintiff's evidence, the defendant moved the court to nonsuit the plaintiff and to dismiss the action.

(2) At the conclusion of all of the evidence, the defendant renewed his motion to nonsuit the plaintiff and dismiss the action."

Was the court below correct in overruling defendant's motions for judgment as in case of nonsuit? C. S. § 567. We think so.

Defendant contended:

That the following provision was in a deed and agreement made December 16, 1915, by Puss Harrington to and with Sam Short, both signing same:

"And he further covenants that, after the death of the said Puss Harrington, her husband's nephew, Joe Perkins, shall have possession and use the one room in said house during his natural life without any charge whatever." That an action of ejectment was brought before a justice of the peace, contrary to the provisions in the Constitution of North Carolina (article 4,§ 27). That a justice of the peace has no jurisdiction where the "title to real estate" is in controversy. C. S. § 1473.

C. S. § 1476:

"In every action brought in a court of a justice of the peace, where the title to real estate comes in controversy, the defendant may, either with or without other matter of defense, set forth, in his answer, any matter showing that such title will come in question. Such answer shall be in writing, signed by the defendant or his attorney, and delivered to the justice."

C. S. § 1477:

"If it appears on the trial that the title to real estate is in controversy, the justice shall dismiss the action and render judgment against the plaintiff for costs."

C. S. § 1478, provides, when action dismissed before a justice of the peace, another may be brought in superior court.

Defendant contends that the action should be dismissed, and the motions for judgment as in case of nonsuit should be allowed. Plaintiff contends that the "title to real estate" is not in controversy; that on October 17, 1923, he bought a fee-simple title to the land from Col. Harry Skinner and wife, with full covenants of warranty.

Durham Carnegie testified in part:

"We moved there and found Joe Perkins there. I stayed there a time and got everything straight like I wanted it, and told Joe that he would have to pay me rent; that I had bought the place, and showed him where the deed was. I showed him the deed for it. I had bought it and paid for it from Col. Harry Skinner, and he asked me then how much rent. I told him I would charge him $1 per week for the room. 'Well,' he said, 'I will pay you $1 a week, but I will have to wait a while until I get kinder straight.' * * * When I asked Joe about paying rent he didn't say anything about his owning the property, not to me. He never did make any such statement."

Julia Carnegie testified in part:

"I know Joe Perkins. I had a conversation with him, or contract with him, in reference to renting a room in my house. When we moved there, I took the deed and read it to him, and told him I had a deed and I wanted rent for the room; and he said 'How much?' and I said, '$1 a week,' and he said, 'All right.' Durham was present when that contract took...