#### MRS. MARY W. DUFFY v. MRS. EMMA HARTSFIELD et al.

(Filed 8 October, 1920.)

1. Pleadings — Nonsuit—Appeal and Error — Objections and Exceptions— Final Judgment.

Exception to tbe refusal of tbe trial judge to grant a motion for judgment of nonsuit upon tbe pleadings should be noted, and appeal taken from tbe final judgment.

2. Lessor and Lessee — Landlord and Tenant — Contracts—Damages— Crops — Caveat Emptor.

It is incumbent upon tbe lessee of lands to observe tbe lands beforehand with regard to fences and other like or apparent matters, and protect himself in bis lease as to their repair, etc., and when be has not done so tbe doctrine of caveat emptor applies and be may not recover of bis lessor damages to bis crops caused by tbe condition of tbe fence during the period of tbe lease for farming purposes.

Appeal by defendant from Qormor, J., at tbe June Term, 1920, of GRAVEN.

Tbis is an action to recover rent.

Tbe plaintiff alleges in ber complaint tbat prior to 1 January, 1918, tbe plaintiff rented to tbe defendant, J. L. Hartsfield, a certain farm in Craven County for tbe year 1918 for tbe sum of $250, and tbat tbe defendant went into possession of tbe land and cultivated it and disposed of tbe crops without paying tbe rent, or accounting for tbe same.

. Tbe defendant, answering tbe complaint, admitted tbat be bad rented tbe farm from tbe plaintiff, and from bis codefendant for agricultural purposes during tbe year 1918, and tbat be went into possession of it and cultivated it, and admitted tbat be removed tbe crops therefrom, but denied tbat sucb removal was wrongful, and as a further defense alleged tbat after be bad made all preparations to cultivate tbe farm be discovered tbat tbe fences were insufficient and broken down and unfit, to sucb an extent tbat cattle, entered upon tbe lands and did great damage to tbe crops, and tbat be repeatedly made demands upon tbe plaintiff to provide sufficient fences to ward off tbe stock, and tbat she repeatedly refused to do so.

Tbe defendant also alleges additional damages by reason of the loss of fertilizers and seed, but all growing out of tbe alleged failure of duty on tbe part of tbe plaintiff to repair tbe fences.

Tbe plaintiff moved for judgment on tbe pleadings on tbe ground tbat tbe defendant admitted tbat the rent was due and unpaid, and -that bis alleged counterclaim for damages did not state a cause of action.

Tbe motion was refused, and tbe plaintiff excepted and appealed.

*152 B. A. H'unn for plaintiff.

Guión & Guión for defendant.

AlleN, J.

The refusal of a motion for judgment on the pleadings is not appealable. This is expressly decided in Cameron v. Bennett, 110 N. C., 277; Duffy v. Meadows, 131 N. C., 33; and Barbee v. Penny, 174 N. C., 572.

The reason for the rule is stated in these cases, and it is pointed out that the correct practice is to note an exception to the refusal to grant the motion, which will be considered on appeal from the final judgment.

We will, however, express an opinion on the merits of the motion, as it will doubtless prevent further litigation.

The principle is well settled that “In the absence of express stipulation on the subject, there is usually no obligation or assurance on the part of the landlord to his tenant that the premises will be kept in repair, or that the same are fit or suitable for the purposes for which they are rented,” and that, “ ‘Ordinarily the doctrine of caveat emptor applies to leases of realty, and throws on the lessee the responsibility of examining as to existence of defects on the rented premises and providing against their ill effects.’ Propositions that are approved by direct decision with us, and which prevail generally in jurisdictions where the rights of the parties are dependent on common-law principles. Smithfield Improvement Co. v. Coley-Bardin, 156 N. C., 255; Edwards v. R. R., 98 N. Y., 245; Mullen v. Rainear, 45 N. J. L., 520; Doyle v. R. R., 147 U. S., 413; Walsh v. Schmidt, 206 Mass, 405; Thomas v. Lane, 21 Mass., 47; Philan v. Fitzpatrick, 188 Mass., 237; Calvin v. Beals, 187 Mass., 250; Howard v. Water Power Co., 75 Wash., 255; 3 Sherman & Redford on Negligence, sec. 709; 16 R. C. L., 772; in the Landlord and Tenant, sec. 268.” Fields v. Ogburn, 178 N. C., 408.

As stated in 16 R. C. L., 1032, the tenant “takes the premises for better or for worse, and cannot involve his landlord in expense for repairs without his consent.”

The facts alleged by the defendant bring him clearly within this rule, and there is greater reason for enforcing it against him because the defects of which he complains, insufficient fences, were apparent and easily discovered before he made the contract of renting, and he had ample opportunity to protect himself by covenants in the lease, and having failed to do so, he must abide by the law.

We are of opinion, therefore, that the defendant has not alleged a counterclaim which he can maintain, and that the plaintiff is entitled to judgment for the rent due.

Appeal dismissed.