#### BROWN v. SOUTHERLAND.

(Filed October 9, 1906).

Action for Breach of Covenant of Seizin — Jurisdiction— Title to Beal Estate in Controversy — Practice.

1. Wliere the complaint alleges that the defendants conveyed to the plaintiffs certain lands by deed, “with full covenants of seizin”; that the defendants were not seized of a portion of said lands, and that by reason thereof there was a breach of said covenant whereby they sustained damage to- the amount of $57, the Superior Court had jurisdiction of the action under Art. IV, sec. 27, of the Constitution, the title to real estate being- in controversy.

2. The defendants by moving to dismiss on the pleadings, cannot oust the jurisdiction of the Superior Court, provided the-complaint sets forth facts which present a case in which the title to real estate is in controversy.

3. The provisions of Rev. see. 1424 cannot be invoked where it does not appear that the action before the Justice was dismissed “upon answer and proof by the defendant that the title to real estate was in controversy,” as this cannot be inferred.

ActioN by E. Q. Brown and wife against E. B. Souther-land and wife, beard by Judge James L. Webb and a jury, at the August Term, 1906, of the Superior Court of Wayne.

Plaintiffs sued in the Superior Court alleging that defendants conveyed to them certain lands by deed, “with full covenants of seizin, against encumbrances and with general warranty.” That defendants were not seized of a portion of the lands conveyed, and that by reason thereof there was a breach of said covenant of seizin whereby they had sustained damage to the amount of $57.58, wherefore they demanded judgment, etc. Defendants admitted the execution of the deed and denied that there was any breach of the covenant of seizin, except as set forth in the affirmative matter set up in the answer. Defendants, for a further defense, say that the land, in respect to which they had no seizin, was included *226in the deed by mistake of the draftsman. That plaintiffs contracted to purchase certain land, and that when the deed was prepared the draftsman followed a survey which was furnished him and, by mistake, included in the description the land in controversy. When the cause came on for trial defendants moved the Court to dismiss the action, for that the Court had no jurisdiction, the amount, demanded being less than two hundred dollars. His Honor being of the opinion that upon the pleadings the title to land was not in controversy, granted the motion. Plaintiffs excepted and appealed.

A. 8. Grady and W. 0. Munroe for the plaintiffs.

F. It. Cooper for the defendants.

CONNOR, J.,

after stating the case: Counsel concede that the exact point presented by the appeal has not been before this Court. The solution of the question depends upon the construction of the Constitution, Art. IV, sec. 27: “The several justices of the peace shall have jurisdiction * * * of civil actions founded on contract wherein the sum demanded shall not exceed two hundred dollars, and wherein the title to real estate shall not be in controversy.” See, also, Revisal, sec. 1419. This section, when analyzed, confers jurisdiction on justices in actions “founded on contract” wherein: 1. The sum demanded shall not exceed $200, and, 2. The title to real estate shall not be in controversy. Here the sum demanded is within the jurisdiction of the justice, but plaintiffs say that the jurisdiction is not given, because the title to land is in controversy. That upon the pleadings it is manifest that the issue raised — the alleged breach of the covenant of seizin — involves the inquiry whether the defendants were seized, that is, had title to the land conveyed in the deed. Defendants say that the answer admits that they had no title, therefore there was nothing to try. This position eliminates the defense that the land was included in *227the deed by tbe mistake of tbe draftsman, and presents tbe question upon tbe allegation and denial in respect to tbe breach of tbe covenant. The answer admits that tbe deed, as written, covers and includes tbe land in controversy. It is true that in their further defense defendants admit that they bad no such land. Tbe test by which jurisdiction is fixed, when tbe motion to dismiss is made upon tbe complaint, is whether from tbe allegations of fact tbe “amount in dispute” is more or less than two hundred dollars. Froelich v. Express Co., 67 N. C., 1. This Court has uniformly held that when tbe sum demanded, in good faith, is in excess of two hundred dollars, tbe jurisdiction is not ousted by tbe reduction of tbe amount by failure of proof. Martin v. Goode, 111 N. C., 288, in which tbe decided cases ai*e cited. Sloan v. Railroad, 126 N. C., 488. Applying tbe same test here, it is clear that tbe complaint alleges a state of facts which, if true, involves tbe title to land. Defendants, by moving to dismiss on tbe pleadings, cannot oust tbe jurisdiction, provided tbe complaint sets forth facts which present a case in which the title to real estate is in controversy. Tbe fact, if it be conceded, that tbe answer admits the plaintiffs’ right to recover, cannot affect tbe question of jurisdiction. Tbe defendants do not admit that plaintiffs are entitled to recover; on tbe contrary, they set up an equitable defense that tbe land was included in tbe deed by mistake. If they should succeed in establishing this defense, of course tbe plaintiff would not be entitled to recover, either upon the ground that tbe deed would be corrected and thereby tbe land, in respect to which there is a breach of tbe covenant, eliminated, or tbe plaintiff would take only nominal damages. It was the evident purpose of tbe framers of tbe Constitution, while enlarging tbe jurisdiction of tbe justices of tbe peace in respect to tbe sum demanded, to exclude from their jurisdiction tbe trial of title to real estate. We can readily see that in actions for breach of covenants it would be almost impossible to avoid tbe trial *228of issues involving snob title. The very matter in controversy here is whether the defendants were seized of the land conveyed, thus presenting, necessarily, the question of title and thereby ousting the jurisdiction of the justice. It will be observed that the statute further provides that if the question of title is not raised upon the pleadings, but shall appear to the justice, “on the trial,” to be in controversy, he shall dismiss the action. We- are of the opinion that his Honor was in error in granting the motion to dismiss. In the case of Templeton v. Summers, 11 N. C., 269, cited by defendants, it was manifest that the title to land was not involved, and what is said there does not conflict with our conclusion. Plaintiffs call our attention to the fact that the case on appeal states that an action between the same parties on the same subject-matter had been dismissed before a justice of the peace of Sampson County, thereby invoking the provisions of sec. 1424 of the Revisal of 1905, which provides: “When an action before a justice is dismissed upon answer and proof by the defendant that the title to real estate is in controversy in the case, the plaintiff may prosecute an action for the same cause in the Superior Court, and the defendant shall not be permitted, in that Court, to deny the jurisdiction by an answer contradicting his answer in the justice’s court.” Defendants insist that plaintiffs cannot take advantage of this section, because the judgment dismissing the action by the Justice was not pleaded. Without passing upon that question, it is sufficient to say that it does not appear that the action was dismissed “upon answer and proof by the defendant that the title to real estate was in controversy,” and this cannot be .inferred.

Judgment dismissing the action must be

° Reversed.