Smith v. Garris

• Decision Date: 23 September 1902
• Citation: 42 S.E. 445,131 N.C. 34
• Parties: SMITH. v. GARRIS.
• Court: North Carolina Supreme Court

42 S.E. 445

131 N.C. 34

SMITH.

v.GARRIS.

Supreme Court of North Carolina.

Sept. 23, 1902.

LOST PAPERS — SECONDARY EVIDENCE — JUSTICES OF THE PEACE^JURISDICTION—LANDLORD AND TENANT ACT.

1. One pleading an estoppel by a judgment of a justice showed that he did not have the papers in the case, and that the justice was dead, and proved by the clerk of the superior court that he had unavailingly searched his office for the papers. It was not shown that the papers had ever been in the clerk's office, or that the person desiring them had searched for them or inquired of the justice's family for them. Held, that the loss of the papers was not sufficiently accounted for to render parol evidence of their contents admissible.

2. The landlord and tenant act gives a justice of the peace no jurisdiction of an action in ejectment by a mortgagee against a mortgagor in possession, involving title to realty, even though it is alleged that the mortgagor is a tenant of the mortgagee.

Appeal from superior court, Pitt county; Winston, Judge.

Action by B. F. Smith against R. H. Gar-ris. From a judgment for plaintiff, defendant appeals. Affirmed.

F. G. James and Jas. H. Pou, for appellant.

Skinner & Whedbee, for appellee.

FURCHES, C. J. The plaintiff was the fee-simple owner of the land in controversy, which he mortgaged to Hardy, and, failing to pay the mortgage debt, the land was sold under the power contained in the mortgage, and the defendant became the purchaser. The plaintiff alleges that the defendant bought the land for him, and was to convey the same to the plaintiff upon the plaintiff's repaying the defendant the purchase money, which he alleges he has paid, and more than paid, in money and in rents and profits, and in money received by the defendant for lumber while he has wrongfully been in possession of said land. The defendant denies that he bought the land for the plaintiff; denies that he agreed to buy it for the plaintiff, and was to reconvey it to the plaintiff upon his repayment of the purchase money; and denies that the plaintiff has ever paid him back the purchase money he paid out for said land. The defendant also pleads an estoppel of record, and says that he brought an action of ejectment before one Asbury, a justice of the peace, recovered judgment therein, and obtained a writ of ouster. Upon the trial the defendant showed that the justice of the peace Asbury was dead. The defendant did not have the papers in the case of himself against the plaintiff...