#### DURHAM CARNEGIE v. JOE PERKINS.

(Filed 17 March, 1926.)

1. Landlord and Tenant — Title—Possession—Vendor and Purchaser— Contract of Rent — Statutes.

A tenant may not continue in possession of the leased premises and deny his landlord’s title by setting up a superior or outstanding title in himself, nor where he continues in possession under a former owner and contracts with a purchaser to pay him rent, can he assert ownership of title in himself. C. S., 1473, 1476, 1477, 1478.

2. Evidence — Nonsuit—Landlord and Tenant — Possession—Title—Trials.

On a trial on appeal to the Superior Court in a summary action of ejectment, where the question involved is whether a tenant holding over the possession from a former owner had agreed to pay rent to the purchaser, and the evidence is conflicting, the question of jurisdiction is determined by the answer of the jury to the issue, and a motion as of non-suit is properly denied. C. S., 567.

Appeal by defendant from Staclc, J., and a jury, at November Special Term, 1925, of Pitt. No error.

The issues submitted to the jury and their answers thereto, were as follows:

*413“1. Did tbe defendant rent tbe room in tbe bouse in question of tbe plaintiff and agree to pay one dollar per week tberefor, as claimed by tbe plaintiffs? Answer: Yes.

“2. Does tbe defendant wrongfully bold over, and bas bis term expired, as claimed by tbe plaintiffs? Answer: Yes.”

Tbe judgment of tbe court below was as follows:

“This cause coming on to be beard before bis Honor, A. M. Stack, and a jury, upon an appeal from B. F. Tyson, justice of tbe peace, and being an action by tbe plaintiff against tbe defendant on a rental contract for tbe payment of rent at $1 per week, alleging that tbe contract was breached by tbe defendant on 1 May, 1924, and demanding that payment of rent be bad and for tbe possession of tbe premises and tbe issues of record having been submitted to- tbe jury wherein tbe jury say that there was a contract between tbe plaintiff and tbe defendant, wherein tbe defendant agreed to pay $1.00 per week rent for room in tbe bouse of tbe plaintiff and that tbe defendant wrongfully bolds over and that bis term bas expired and that tbe plaintiff is entitled to tbe possession of tbe property as established by tbe issues of record and tbe answers thereto, by tbe jury. It is now, thereupon, on motion of S. J. Everett, attorney for tbe plaintiff, ordered, adjudged and decreed that tbe plaintiff recover of tbe defendant rent at $1.00 per week from 1 May, 1924, and interest thereon until paid and that by reason of tbe breach of contract of tbe defendant tbe plaintiff is entitled to tbe possession of tbe premises unlawfully held by tbe defendant, Joe Perkins, and it is adjudged that tbe plaintiff is entitled by reason thereof to tbe possession of tbe same and that tbe cost of this action be taxed against tbe defendant.”

Tbe defendant made numerous exceptions and assignments of error, tbe main ones will be considered in tbe opinion.

S. J. Everett for plaintiff.

Julius Brown for defendant.

Clarkson, J.

Tbe only material assignments of error by defendant necessary to be considered, are as follows:

> “(1) At tbe close of tbe plaintiff’s evidence, tbe defendant moved tbe court to nonsuit tbe plaintiff and to dismiss tbe action.

> “(2) At tbe conclusion of all of tbe evidence, tbe defendant renewed bis motion to nonsuit tbe plaintiff and dismiss tbe action.”

Was tbe court below correct in overruling defendant’s motions for judgment as in case of nonsuit? C. S., 567. We think so.

Defendant contended that tbe following provision was in a deed and agreement made 16 December, 1915, by Puss Harrington to and with *414Sam Short, both signing same: “And he further covenants that after the death of the said Puss Harrington her husband’s nephew, Joe Perkins, shall have possession and use the one room in said house during his natural life without any charge whatever.” That an action of ejectment was brought before a justice of the peace contrary to the provisions in the Constitution of North Carolina, Art. IY, sec. 27 — that a justice of the peace has no jurisdiction where the “title to real estate” is in controversy. C. S., 1473.

“C. S., 1476. In every action brought in a court of a justice of the peace, where the title to real estate comes in controversy, the defendant may, either with or without other matter of defense, set forth, in his answer, any matter showing that such title will come in question. Such answer shall be in writing, signed by the defendant or his attorney, and delivered to the justice.”

“C. S., 1477. If it appears on the trial that the title to real estate is in controversy, the justice shall dismiss the action and render judgment against the plaintiff for costs.”

C. S., 1478, provides when action dismissed before a justice of the peace another may be brought in Superior Court.

Defendant contends that the action should be dismissed and the motions for judgment as in case of nonsuit should be allowed.

Plaintiff contends that the “title to real estate” is not in controversy. That on 17 October, 1923, he bought a fee-simple title to the land from Col. Harry Skinner and wife, with full covenants of warranty.

Durham Carnegie, testified, in part: “We moved there and found Joe Perkins there. I stayed there a time and got everything straight like I wanted it, and told Joe that he would have to pay me rent, that I had bought the place and showed him where the deed was. I showed him the deed for it. I had bought it and paid for it, from Col. Harry Skinner, and he asked me then how much rent. I told him I would charge him $1 per week for the room. ‘Well,’ he said, T will pay you $1 a week, but I will have to wait a while until I get kinder straight.’ . . . When I asked Joe about paying rent he didn’t say anything about his owning the property, not to me. He never did make any such statement.”

Julia Carnegie, testified, in part: “I know Joe Perkins. I had a conversation with him, or contract with him, in reference to renting a room in my house. When we moved there, I took the deed and read it to him and told him I had a deed and I wanted rent for the room and he said, ‘How much?’ and I said, ‘One dollar a week,’ and he said ‘All right.’ Durham was present when that contract took place. He did not say anything about owning the land or having any interest in it. He did not pay me.”

*415Tbe defendant denied the agreement alleged by plaintiff to pay rent, and testified, in part: “I told them I bad a life estate there. My Aunt Puss gave it to me. Sbe raised me and sbe gave me a life estate. I went there and have been staying there ever since. I told them I had the room and they knew I had it. That was my room, they knew it was my room, they knew it was my room when they moved there, Aunt Puss gave me my room to be mine, and Julia moved Aunt Puss’ things in my room, put them in my room. In the case of Grimes v. Sam Short, no papers or summons were served on me. I didn’t know anything about the suit.”

The court below charged the jury, in part, as follows: “It is not a question of who owns this house, or who owns that room. It does not make any difference as far as this case is concerned, who owns it, but the question is simply whether or not the defendant agreed to pay rent for it, agreed to rent it from the plaintiff. Now, there is this principle of law that when one rents from another that is an admission that he has got some kind of title. The law will not permit a man to dispute one from whom he rents over title. A tenant may sublet and become a landlord himself without any title to the property and yet he can throw out his sub-lessee if the term expires. If there was no renting in this case the plaintiff has no right to go in a court of'a justice of the peace and bring this action. He would have to come in to the Superior Court here and allege that he was the owner of the land and the defendant wrongfully detained him and the defendant would deny that such was his claim of title and we would try the title of the room. In this particular case, the title to the land cannot come in, it is only a question of whether or not there was a rental. If the plaintiff didn’t rent to the defendant that ends the matter. If he did, then if he didn’t comply with his contract, he would' have to get out.”

The jury answered the issues in favor of plaintiff. The charge of the court is well settled law.

In Lawrence v. Eller, 169 N. C., p. 213, Hoke, J., speaking to the subject, and citing numerous authorities, says: “It is recognized as the general rule that a tenant is not allowed to controvert the title of his landlord or set up rights adverse to such title without having first surrendered the possession acquired under and by virtue of the agreement between them.” Alexander v. Gibbon, 118, N. C., p. 800; Hobby v. Freeman, 183 N. C., 241; Shelton v. Clinard, 187 N. C., 665.

In Perry v. Perry, 190 N. C., p. 126, Varser, J., speaking to the question, says: “Of course, as stated in Davis v. Davis, 83 N. C., 71, if the defendant did enter as tenant of the plaintiffs or became such after entry, then he is estopped to deny the plaintiffs’ title (16 R. C. L., 469), or to assert title to himself (16 R. C. L., 657), until he has re*416stored tbe possession to tbe plaintiff, but be may contest tbe issue of tenancy by any competent evidence.”

There are modifications to tbis rule, as in tbe case of Hargrove v. Cox, 180 N. C., p. 360, and cases there cited; but, in tbe present case, tbe evidence of plaintiff tended to show a direct promise of rental by defendant to plaintiff. Tbe jury found for tbe plaintiff. Tbe deed to tbe property was made to Durham Carnegie and wife, Julia Carnegie. Tbe action was properly brought by plaintiff. Davis v. Bass, 188 N. C., 200. In tbe present action, from tbe jury’s finding, defendant is debarred of asserting any equitable right or title be may have in tbe property.

From tbe entire record we can find

No error.