Hughes v. Mason

• Decision Date: 31 January 1881
• Citation: 84 N.C. 472
• Court: North Carolina Supreme Court
• Parties: JOHN HUGHES and another v. LUKE MASON.

84 N.C. 472

JOHN HUGHES and another

v.LUKE MASON.

Supreme Court of North Carolina.

January Term, 1881.

SUMMARY PROCEEDING in ejectment commenced before a justice of the peace under the landlord and tenant act, and heard on appeal at Fall Term, 1880, of CRAVEN Superior Court, before Graves, J.

The defendant moved to dismiss the action for want of jurisdiction in the justice of the peace, and the judge found the following facts: The plaintiffs showed a written agreement between the parties, which agreement was substantially “that plaintiffs had agreed to sell to defendant a lot in the city of Newbern, for which the defendant agreed to pay $1,500, in five annual instalments, with interest, and that defendant was to put the wharf and warehouse in good condition, and give a mortgage on another lot owned by defendant as collateral security for the payment of the instalments, and on failure to pay the same, a power was given to plaintiffs to sell the mortgaged premises, and if the proceeds should not be sufficient to pay the said price, the plaintiffs should take immediate possession of the wharf and warehouse property, and the payments made should be retained as rent for the same, and in that event, the relation of landlord and tenant declared to exist, and possession be secured as in case of a tenant's holding over after his term when notice has been duly served, but no such notice shall be required in this case.” (Signed by the parties).

The mortgaged land was sold and the proceeds, seventeen dollars, applied to plaintiffs' debt for the price of the lot described in the agreement, and no other payment was made on the same. In January, 1879, the plaintiffs demanded possession of said lot, but agreed to allow the defendant to remain in possession until the first of April following, if he would pay seventy-five dollars as rent; and defendant verbally agreed to become the tenant of plaintiffs, and also, that if he paid the said sum on or before the said first of April, the amount should go as a payment on said lot.

Upon this finding, the court dismissed the case for want of jurisdiction in the justice of the peace, and the plaintiffs appealed.

Mr. W. W. Clark, for plaintiffs .

No counsel for defendant.

DILLARD, J.

Upon the facts found by His Honor, and contained in articles of agreement referred to, and made an exhibit in the judge's statement of the case of appeal, we concur in the opinion of the court below, that the action was not cognizable by a justice of the peace under the landlord and tenant act, and in our opinion, there was no error in dismissing the same.

The landlord and tenant act in Battle's Revisal, ch. 64, § 19, by its terms, and the construction put upon it by the court, gives the remedy of summary ejectment before a justice of the peace, only in the case when the simple relation of lessor and lessee has existed, and there is a holding over after the term has expired, either by afflux of time, or by reason of some act done or omitted contrary to the stipulations of the lease. Credle v. Gibbs, 65 N. C., 192; McComhs v. Wallace, 66 N. C., 481; Forsythe v. Bullock, 74 N. C., 135. And it is equally were settled, that the jurisdiction does not extend to the relation of mortgagor and mortgagee and vendor and vendee, in which, although the mortgagor and vendee may technically be tenants at law, they are viewed in equity as the owners of the estate and are allowed in order to avoid the circuity of letting judgment go and then going into equity to enjoin the execution, to set up in one action under our present system their equitable title in defence to any action which may be brought to recover the possession. Heyer v. Beatty, 76 N. C., 28; Abbott v. Cromartie, 72 N. C., 292; Calloway v. Hamby, 65 N. C., 631; Turner v. Lowe, 66 N. C., 413; Forsythe v. Bullock, supra.

In view of the jurisdiction of a justice of the peace as thus defined, the case of the plaintiffs falls not within the first class above-mentioned, but in our opinion plainly within the second one. The contract between the parties is not in its terms or legal import a lease with a certain definite duration, nor is it a tenancy at will determinable at the will of the parties, and therefore there could not be said to be a holding over after the expiration of a term, nor a forfeiture for any act done or omitted contrary to the stipulations of a lease. But the articles of agreement executed by the parties and made a part of the judge's statement for this court, make...