#### ELLA HARGROVE v. SARAH COX.

(Filed 17 November, 1920.)

1. Landlord and Tenant — Title—Tenant’s Possession — Deeds and Conveyances — Guarantee of Landlord — Wills—Evidence—Appeal and Error.

A tenant is estopped to deny tbe title of tbe one -under whom be bolds possession, without first having surrendered tbe possession; but this doctrine does not apply when tbe title of tbe landlord has terminated, or claimed by descent, or to prevent tbe tenant from assailing, for fraud, tbe validity of an alleged transfer from bis landlord, in order to protect his possession; as where tbe niece of the testator, bis tenant, in possession, claims title under bis will, duly admitted to probate, and attacks for fraud tbe deed of her landlord under which tbe plaintiff claims; and tbe exclusion of tbe defendant’s evidence to this effect is reversible error.

2. Courts — Jurisdiction—Landlord and Tenant — Justices of the Peace— Superior Courts — Appeal.

Tbe courts of a justice of the peace have no jurisdiction when in a possessory action of ejection, the issue of tbe landlord’s title is involved in the disposition of tbe case, and tbe jurisdiction of tbe Superior Court, being derivative, it cannot acquire such jurisdiction on appeal; and tbe action being without tbe jurisdiction of the former court, it should be dismissed in the latter one. Const., Art. IV, sec. 27.

S. Courts — Justices’ Courts — Jurisdiction—Landlord and Tenant — Title,

Where tbe plaintiff, in a possessory action of ejection in a justice’s court, makes out a prima facie case of jurisdiction, it is not ousted merely by reason of an answer setting forth a controversy as to tbe title to the land or other jurisdictional question; but tbe court will proceed to hear the testimony and determine whether, in fact, 'such controversy is presented in tbe action, and in this case it is held sufficient.

Clark, C. J., concurring.

SummaRY PROCEEDINGS in ejectment under tbe Landlord and Tenant Act, tried on appeal from a justice’s court, before Guión, Jand a jury, at May Term, 1920, of New Hanover.

Tbere was evidence for tbe plaintiff tending to sbow tbat defendant rented tbe bouse and lot in question, or a portion of it, from Edward Gause, former owner, some time in 1911, and bad continued in occupation of tbe property until tbe death of Edward Gause in December, 1916; tbat five or six days before bis death, said Edward Gause, uncle of plaintiff, conveyed tbe property to plaintiff, who instituted the present suit. Defendant, denying tbe right to maintain tbe proceedings, offered evidence tending to show tbat defendant bad not rented tbe bouse from Edward Gause, who was her uncle also, but bad lived in tbe bouse to take care of him for six years past; tbat twelve or eighteen months before bis death said Edward Gause bad duly made bis last will and testament, devising this property to defendant, bis son and bis brother, *361and two grandchildren, “share and share alike,” which will had been duly proven and recorded. Defendant produced evidence further tending to show that the devisor and former owner, Edward Gause, who was between 80 and 90 years of age, had suffered a stroke of paralysis three months before his death, and after that time, and at the time of the making of the alleged deed the plaintiff, five or six days before his death, as stated, he had not sufficient mental capacity to execute a valid deed, or to know what he was doing. The court being of the opinion that “defendant” could not attack the deed of Edward Gause to the plaintiff, and could not set up title in herself submitted and restricted the force and effect of the pleadings to the single issue. “Whether defendant had rented the property from Edward Gause prior to his death.” The jury having answered the issue, “Yes.” There was judgment of ejectment against defendant, and thereupon she excepted and appealed, assigning errors.

W. B. McKoy and S. M. Empie for plaintiff.

Wright & Stevens for defendant.

Hoice, J.

It is familiar learning that a tenant is estopped to deny the title of his landlord. As stated, however, in some of the authorities apposite, the estoppel in question “extends merely to a denial of what has already been admitted, that is, the original landlord’s title and does not prevent a tenant from assailing the validity of an alleged transfer from the original landlord.” The modification suggested is approved by this Court in Steadman v. Jones, 65 N. C., 388-391, and generally recognized as the correct position on the subject, Jackson v. Rowland, 6 Wendall (N. Y.), 666; Million v. Riley, 1 Dana (Ky.), 359; 24 Cyc., p. 745; 16 R. C. L., p. 670; title Landlord and Tenant act, 156. In any event, therefore, there was error to defendant’s prejudice in refusing to consider the evidence offered by defendant tending to show that the plaintiff had not succeeded to the right which the defendant had recognized in taking the alleged house. And this cause being a summary proceeding in ejectment instituted before a justice of the peace, we are of opinion further, from the facts of the record as they now appear, that this action should be dismissed for lack of jurisdiction to proceed further with the hearing. Our Constitution, Art. IY, sec. 27, denies to justices of the peace jurisdiction of causes where the title to real estate is in controversy, and it is the accepted position, approved and illustrated in numerous decisions, that where a justice’s court is without jurisdiction of a cause of action, the Superior Court, on appeal, cannot proceed with it, the jurisdiction of the latter being' derivative only, and dependent on that of the justice of the peace where the cause originated. McLaurin *362 v. McIntyre, 167 N. C., 350; McIver v. R. R., 163 N. C., 544; Cheese Co. v. Pipkin, 155 N. C., 394. In tbe last citation tbe principle is stated as follows: “Tbe Superior Court bas no jurisdiction on appeal from a justice’s court of an action erroneously brought in tbe latter court, and of wbicb tbe justice’s court bad no jurisdiction, tbe jurisdiction of tbe Superior Court being derivative only.” Again, while our Court bas been very insistent on tbe principle that where one bas entered under a lease or contract of rental, be may not dispute or question tbe title of bis landlord without first surrendering tbe possession. Tbe position does not necessarily or usually prevail when tbe title of tbe landlord bas terminated, and especially when tbe same bas been acquired by or descended upon tbe tenant. As said in Lawrence v. Eller, tbe loyalty wbicb affords tbe basis for tbe position is to tbe title under wbicb tbe tenant bas entered, and in tbe case suggested tbe loyalty in question not infrequently permits and may require that tbe tenant shall avail himself of tbe title acquired to protect bis possession, and is allowed to assert and insist upon it for tbe purpose indicated. Lawrence v. Eller, 169 N. C., 211-213; Forsythe v. Bullock, 74 N. C., 135; Turner v. Lowe, 66 N. C., 413. In tbe Lawrence case tbe general principle, and some of tbe exceptions, are stated as follows: “It is recognized as tbe general rule that a tenant is not allowed to controvert tbe title of bis landlord or set up rights adverse to such title without having first surrendered tbe possession acquired under and by virtue of tbe agreement between them.

“Tbe position does not usually obtain where, after tbe renting, tbe title of tbe landlord bas terminated, for, under tbe doctrine as it. now prevails, tbe loyalty required is to tbe title, not to tbe person of tbe landlord, and in courts administering principles of equity tbe estoppel is not recognized when tbe tenant bas been misled into a recognition of bis lessor’s title by mistake or fraud, and under circumstances wbicb would induce a court of equity to bold -the landlord .a trustee for tbe tenant, and there are other exceptions of a restricted nature.” And in Turner v. Lowe, supra, it was held as follows: “Tbe principle that a tenant cannot dispute bis landlord’s title is in full force, but a tenant was never prevented from showing an equitable title in himself, any facts which would make it inequitable to use tbe legal estate to deprive him of tbe possession.” For this purpose formerly a tenant was driven into equity, but under tbe present system tbe tenant in such cases can avail himself of such equitable defenses in bis answer. And in determining tbe question of justice jurisdiction, tbe courts bold that where a prima facie case within such jurisdiction is stated and made tbe basis of plaintiff’s claim, such jurisdiction is not ousted merely by reason of an answer setting forth a controversy as to the title of realty or other jurisdictional question, but tbe court should bear tbe testimony in tbe cause and deter*363mine from that whether such controversy is in fact and truth presented. From a perusal of the record and on issue joined, there are facts in evidence on the part of the defendant tending to show that the plaintiff is a niece of Edward G-ause, the former owner and alleged landlord, and that the deed from him, under which plaintiff claims the property, was executed five or six days before his death,, when he was approaching 90 years of age; that he had suffered an attack of paralysis three or four months before, was utterly helpless and without mental capacity to make the deed or any other similar paper. There was evidence further to the effect that more than a year before this the owner had executed a will in proper form, which had been admitted to probate, according to which he devises the property to defendant and the sons and grandsons of the devisor. And under a proper application of the authorities cited, and the principles they approve and illustrate, we are of opinion that it is open to defendant to raise the issue as to the validity of plaintiff’s claim and under the testimony referred to there is a controversy involving the title to real property presented which withdraws the case from a justice’s jurisdiction and deprives the Superior Court of the right to proceed further in the matter. McLaurin v. McIntyre, supra; Hahn v. Guilford, 87 N. C., 172; Parker v. Allen, 84 N. C., 466; Forsythe v. Bullock, 74 N. C., 135; Turner v. Lowe, 66 N. C., 414. In the McLaurin case it was held: “The jurisdiction conferred by the landlord and tenant act upon justices of the peace does not obtain where the title to the land is in dispute; and when, in the course of the trial, it appears that the matters involved do not fall within the jurisdiction conferred in these respects, the justice should dismiss the action; and, upon appeal, the Superior Court, acquiring no further jurisdiction than the court wherein the action was commenced, may not proceed with the trial.” In the Parker case the ruling of the Court is stated as follows: “In a summary proceeding in ejectment before a justice of the peace, or on appeal, it is the province of the court to determine whether the title to the land is in controversy, and where the testimony shows that such controversy exists or that equities growing out of a contract of purchase are to be adjusted, as in this case, the proceedings should be dismissed for want of jurisdiction.”

This will be certified to the end that the proceedings be dismissed, plaintiff being free to seek relief by action in Superior Court, if she is so advised.

Eeversed.

Claek, C. J.,

concurs that the principle which estops a tenant to deny the title of his landlord does not prevent the tenant from assailing the validity of an alleged transfer from the original landlord. Steadman v. *364 Jones, 65 N. C., 388; 24 Cyc., 745; 16 R. C. L., 670. And, therefore, there is error entitling the defendant to a new trial for refusing to consider the evidence offered by him tending to show that the plaintiff had not succeeded to the rights of the landlord from whom the defendant had rented the house. But does not concur in the proposition that this action, which came up by appeal from a magistrate, ought to have been dismissed in the Superior Court, and the parties invited to come back into the very court from which they had been dismissed.

This would be in accord with the technical ideas formerly prevailing in the administration of the courts. But under our present system, the case having reached the Superior Court, 'that court should have proceeded to try the case on its merits, without requiring the parties to go out of court, with an invitation to come back again into the same court. An examination of the Constitution will show no basis for the doctrine of “derivative jurisdiction.” The Superior Court having acquired jurisdiction by the appeal, retains it for all purposes, and should proceed to decide the cause upon its merits. This has been often before decided by this Court, though there are some cases to the contrary.

As far back as West v. Kittrell, 8 N. C., 493, it was held that'where a cause was carried to the Superior Court from a lower court, the Superior Court will retain jurisdiction if it were a subject-matter of which it would have had jurisdiction. In Boring v. R. R., 87 N. C., 363, it was held that where the subject-matter of the action was one of which the justice of the peace and the Superior Court had concurrent jurisdiction, on appeal the latter will retain jurisdiction, though the proceeding in a court of a justice of the peace was void for irregularity. The ground given is that the case having gotten into the Superior Court, which had jurisdiction, the notice of appeal had the same efficacy as if the defendant had been brought in by service of summons.

In McMillan v. Reeves, 102 N. C., 559, Smith, C. J., applied to appeals in civil actions the same rule as in criminal proceedings, and says: “It is not material to inquire into the question of jurisdiction in initiating the suit, since any objection on this account is obviated by the removal of the cause into the Superior Court”; saying further, “The court assumed to exercise jurisdiction; did possess it fully over the subject-matter of the action and the parties, and the cause was, in a strict sense, coram judice under the rulings in West v. Kittrell, 8 N. C., 493, and Boring v. R. R., 87 N. C., 360, even without the Laws of 1887, ch. 276, now Rev., 614 (C. S., 637), which sustains the jurisdiction thus acquired.” The Chief Justice further said: “The objection to the jurisdiction has no force unless the proceeding in its entirety is a nullity, and it certainly cannot require argument to combat such contention. *365 Peoples v. Norwood, 94 N. C., 167.” In. tbis last ease tbe Court beld tbat where tbe parties were before tbe court, it was sufficient tbougb no summons was served.

In S. v. Neal, 120 N. C., 618, it is said: “Tbe case was tried before a justice of tbe peace, and tbe defendant appealed. In tbe Superior Court an indictment was found by tbe grand jury, and tbe defendant was tried tbereon; therefore, in any aspect, there was jurisdiction. Whether tbe court acquired it by tbe appeal, or bad original jurisdiction by tbe indictment, it is immaterial'to decide.”

When tbe clerk wrongfully takes jurisdiction, and tbe cause, by appeal or otherwise, reaches tbe Superior Court, the-court has jurisdiction, and tbe act of 1887, now C. S., 637, provides tbat tbe judge shall “bear and determine all matters in controversy in such action,” and shall make any amendments whatever, and tbis was beld to be so tbougb the proceeding before the clerk was a nullity. In re Anderson, 132 N. C., 243; R. R. v. Stroud, ib., 416; Ewbank v. Turner, 134 N. C., 81.

The above cases are cited in the concurring opinion in S. v. McAden, 162 N. C., 577, it being added: “The sole object in serving a summons is to give the defendant notice to come into court. When be has bad a trial on a bona fide mistake of jurisdiction by tbe plaintiff, before a justice of the peace, on appeal in tbe Superior Court, he has really had tbe most sufficient notice, and is better prepared to try than if be bad been served with summons to appear in tbe Superior Court.” There can be' no benefit to either party by dismissing tbe action and requiring the defendant to come back into the same court by service of summons.

In the concurring opinion in Holmes v. Bullock, 178 N. C., 380, it is said tbat there is “no basis for tbe doctrine of derivative jurisdiction, which is simply a survival of tbe former idea obtaining by which so many objections were had to jurisdiction.” For instance, if an action was brought in the wrong county it was dismissed because the plaintiff had guessed wrong as to venue, and he had to begin over again with loss of time and considerable expense. So, also, when one brought an action for debt when it should have been in covenant or in detinue and it should have been in replevin, or if be guessed erroneously by using another form of action than tbat which tbe court might deem tbe correct one, he was dismissed with costs, and with loss of time to sue again in the same court, and if he guessed wrong again, he was again dismissed until he guessed right; or if be brought a suit in equity when it should have been an action at law, or vice versa, be went through the same heart-breaking experience to come back into court before the same judge. Now the court simply permits amendment and proceeds to try tbe cause.

There are decisions contrary to the above holding that in appeals in civil cases from a justice a different rule applies from that on appeal *366from a justice in criminal cases, or on appeal from tbe clerk. Tbougb in botb these cases tbe trial court was without jurisdiction, tbe Superior Court proceeds to try them without question. It may be that the Legislature will amend C. S., 637, to apply also to appeals in civil cases from a justice of the peace, for the decisions of the court áre irreconcilable.