#### R. H. MITCHELL et ux. v. J. W. MOORE et ux.

(Filed 12 October, 1927.)

1. Vendor and Purchaser — Misrepresentation as to Amount of Purchase Price — Justice of the Peace — Jurisdiction of Court — Courts.

Where the purchaser of lands assumes an existing mortgage debt thereon and partly pays the difference and assumes the balance of the purchase price, he may recover in his action by the seller in the jurisdiction of the justice of the peace, the sum of $86, the difference between the actual amount of the existing mortgage indebtedness and the amount it was represented to be as an unjust enrichment of the seller, and the defense that the mortgage was a matter of record giving constructive notice of the amount due is not tenable.

2. Same — Equity—Reformation of Instruments — Supreme Courts — Appeal and Error.

Where the seller has misrepresented the amount of money due on a mortgage existing on the lands sold to the loss of the purchaser, and the difference falls within the jurisdiction of the justice of the peace, the equitable doctrine of reforming a written instrument has no application, and where the purchaser has brought his action in the court of a justice of the peace, the defense on appeal to the latter court that it could acquire no derivative jurisdiction is untenable. The distinction between the jurisdiction of the court in declaring an equity and enforcing a money demand which equitably belongs to a party, distinguished.

Appeal by defendants from Devin, J., at second May Term, 1927, of Waice.

No error.

Thos. W. Ruffin for plaintiffs.

J. Q. Little for defendants.

*353Adams, J.

This was a civil action beard.on an appeal taken by tbe defendants from tbe judgment of a justice of tbe peace. In December, 1923, tbe plaintiffs purchased from tbe defendants a bouse and lot and agreed to pay tberefor tbe sum of $5,500. Tbey paid $500, assumed a first mortgage indebtedness represented by tbe defendants to be $2,846.94 due tbe Acacia Mutual Life Association, and secured tbe remainder by tbe execution of a second mortgage. Tbe amount originally due tbe Life Association was $3,000, and tbe defendants told tbe plaintiffs tbey bad paid tbereon $153.06, thereby reducing tbe indebtedness to $2,846.94. Tbe plaintiffs alleged that tbey bad afterwards learned that in tbe payment of $153.06 was included tbe sum of $88, which was interest on tbe debt and not a part of tbe principal which tbey bad agreed to pay. Tbe object of tbe action is to recover this sum as an overcharge or a sum in excess of tbe agreed price. Under instructions, to which there was no exception, tbe jury returned a verdict finding that tbe plaintiffs were entitled to a credit of $86.00 as a charge in excess of tbe sum due on tbe first mortgage. There was a motion for nonsuit ón tbe ground that tbe mortgage was a matter of record, and that all tbe facts were known to tbe plaintiff when tbe trade was made. Tbe motion was denied.

One of tbe sources of obligations created by quasi-contracts is tbe receipt of a benefit, tbe retention of which, without compensation, would constitute “unjust enrichment,” illustrated by money paid under a mistake of fact. Woodward, ^wasi-Oontracts, sec. 1. If tbe defendants were not entitled to tbe alleged overcharge, a fact made certain by tbe verdict, tbey bad no right to retain it. Tbe principle as stated by Greenleaf is quoted in Bahnsen v. Clemmons, 79 N. C., 556: “When tbe defendant is proved to have in bis bands tbe money of tbe plaintiff, which ex equo et tono be ought to refund, tbe law conclusively presumes that be has promised to do so, and tbe jury are bound to find accordingly; and after verdict tbe promise is presumed to have been actually proved.”

Tbe appellants interposed a demurrer on tbe ground that a justice of tbe peace bad no jurisdiction of tbe action and that as tbe jurisdiction of tbe Superior Court was derivative, none was acquired by tbe appeal. Tbe action was brought, not to correct or reform tbe note, but to recover money which otherwise would go to tbe “unjust enrichment” of tbe defendants. This will appear by reference to tbe justice’s summons which, in tbe absence of a more formal pleading, may be regarded as a substitute for tbe complaint. Allen v. Jackson, 86 N. C., 321; Cromer v. Marsha, 122 N. C.,. 563; Parker v. Express Co., 132 N. C., 128. For this reason we need not advert to decisions dealing with tbe *354question whether a justice, of the peace in any event can administer equitable relief. There is a distinction, however, between declaring an equity and enforcing the collection of money which equitably belongs to a party. Fidelity Co. v. Grocery Co., 147 N. C., 510; Stroud v. Ins. Co., 148 N. C., 54.

No error.