Krider v. Ramsay

• Decision Date: 30 June 1878
• Citation: 79 N.C. 354
• Court: North Carolina Supreme Court
• Parties: JAMES KRIDER v. R. A. RAMSAY.

79 N.C. 354

JAMES KRIDER

v.R. A. RAMSAY.

Supreme Court of North Carolina.

June Term, 1878.

CIVIL ACTION tried on appeal at January Special T??, 1878, of ROWAN Superior Court, before Kerr, J.

The plaintiff brought this action on the 25th of September, 1876, before a Justice of the Peace to recover an amount alleged to be due for work and labor done on the defendant's land, upon an implied contract; but the defendant denied his right to recover on the ground that he had made no contract with the plaintiff authorizing him to occupy the premises.

The plaintiff was a resident of Rowan county, and the defendant, of Iredell county. The defendant's land on which the work was done is situated in Rowan. The Justice's summons, with a certificate and seal of the clerk of said Court as to his authority to act, commanding the defendant to appear in Salisbury and answer, &c., was sent to the sheriff of Iredell and duly served by him. The summons was not endorsed by a Justice in Iredell. The defendant however appeared, there was a trial before the Justice who issued the summons, and from the judgment therein an appeal was taken to the Superior Court.

Evidence: The plaintiff testified that about Christmas, 1875, one William Dyson, who was living on said land, told him he had leased it in writing from the defendant for a term of five years, at an annual money rental of $150, and proposed to rent a portion of the land to the plaintiff for one year on certain terms, to which the plaintiff agreed, and thereupon entered upon the premises. One James Ervin, a witness for plaintiff, testified that sometime in the year 1875, he heard the defendant tell Dyson that he had leased the land to him for five years; but there was no evidence that this conversation was ever reported to defendant.

The defendant in his evidence positively contradicted the statement of the last witness, and said that he had not leased the land to Dyson at all; that some time in the month of December, 1875, Dyson proposed to lease it for said term and to pay said rent, and that pending the negotiations in respect thereto he permitted Dyson to occupy one of the houses on the land; that the proposed lease was never perfected nor reduced to writing; that he expressly told Dyson if he leased the premises to him, he should not permit him to sub-let to any one, nor did he ratify the contract made by plaintiff with Dyson, nor did he know that plaintiff was occupying the land until the very day he gave him notice to quit.

It was also in evidence that in the month of March, 1876, Dyson went to plaintiff's house and told him that he had surrendered the premises to defendant; and defendant then told plaintiff that if he wished to remain he must make a contract with him, which the plaintiff declined to do. The defendant then told plaintiff he must leave the premises by a certain time, to which he made no objection, and accordingly did leave, as did also Dyson, a short time afterwards.

The jury rendered a verdict in favor of the plaintiff, which His Honor set aside, being of the opinion that a Justice of the Peace had no jurisdiction of the action, from which ruling the plaintiff appealed.

Mr. W. H. Bailey, for plaintiff , upon the question of jurisdiction argued that the distinction between the effect of appearance in cases where jurisdiction is withheld as to the subject matter and jurisdiction as to the person, is clearly pointed out in McMinn v. Hamilton, 77 N. C., 300; and the principle there laid down governs this case. Lilly v. Purcell, 78 N. C., 82.

Mr. J. S. Henderson, for defendant , submitted that at the time the action was brought, it not being found on contract, express or implied, a Justice had no jurisdiction, Bullinger v. Marshall, 70 N. C. 520; Heptinstall v. Rue, 75 N. C., 78; Nance v. C. C. Railway Co., 76, N. C. 9.

BYNUM, J.

In the view most favorable to the plaintiff the case is this:--The lessee of a term of five years made an underlease of a portion of the premises to the plaintiff, for one year, who entered and occupied. Afterwards and before the expiration of the term of either lessee or undertenant, the lessee surrendred his lease to the lessor, who thereupon entered and ejected the under-tenant. The subtenant has brought this action against the lessor before a Justice of the Peace, and declares in contract for work and labor done upon the premises so leased to him.

Where there are no covenants in a lease against subletting, the lessee may underlease, and if the undertenant commits no breach of the covenants between the lessor and lessee which would work a forfeiture of the lease and authorize an entry and dispossession by the lessor, an entry upon the land demised to the undertenant and a dispossession of him by the lessor is a trespass and subjects him to an action. There being here no covenant against subletting, the plaintiff by his contract with Dyson, the lessee, acquired a valid term in the premises for the time agreed on subject only to be defeated by the re-entry of the lessor or lessee for some condition of the demise broken.

Where a lessee for a term of years parts with his whole term to a third party, it is called an assignment, and the assignee thereby becomes the tenant of the original lessor and subject to all the covenants in the lease, which run with the land,...