#### FARMVILLE OIL AND FERTILIZER COMPANY v. FANNIE V. BOWEN.

(Filed 15 March, 1933.)

1. Ejectment B a — Justice of the peace has jurisdiction of summary ejectment to determine questions of tenancy and holding over.

A justice of the peace has jurisdiction of a summary action in ejectment, C. S., 2365, 2376, and may determine the questions of tenancy and holding over, and while he has no equitable jurisdiction, he may consider equitable defenses set up in summary ejectment in so far as they relate to the issue of tenancy.

2. Courts A d—

In appeals from justices of the peace the jurisdiction of the Superior Court is entirely derivative and it must try the ease as constituted in the justice’s court.

3. Ejectment B e — On appeal to Superior Court in summary ejectment the court is confined to matters within jurisdiction of justice.

In appeals from the justice of the peace in summary ejectment the Superior Court’s jurisdiction is exclusively derivative and it may not consider equities between the parties except in so far as they relate to the issue of tenancy, and where in the justice’s court the defendant denies the tenancy and alleges that she was in possession under a contract of purchase made by plaintiff when it purchased the property at foreclosure sale, and on appeal the one issue as to tenancy is submitted to the jury and answered in defendant’s favor, the issue determines the controversy, leaving the rights of the parties in respect to the equitable matters set up as a defense to be determined by a court of competent jurisdiction.

Appeal by plaintiff from Harris, J., at October Term, 1932, of Pitt.

No error.

Summary proceedings in ejectment. Tbe plaintiff alleged that the defendant’s term as tenant expired 31 December, 1931, and that the *376defendant held over. The defendant denied tenancy and alleged that sbe was in possession under a contract of purchase. The justice of the peace gave judgment for the plaintiff and upon appeal to the Superior Court the jury found that the defendant was not a tenant of the plaintiff. Meantime, the defendant had been evicted and the Superior Court rendered judgment restoring her to the possession of the premises. The plaintiff appealed.

F. M. Wooten and Albion Dunn for plaintiff.

S. J. Fverett for defendant.

Adams, J.

Justices of the peace have jurisdiction of summary proceedings in ejectment. C. S., 2365. In this case the complaint, or “oath of the plaintiff,” conforms to the statute. C. S., 2376. The president of the plaintiff testified: “I rented the premises described in the deed to Mrs. Fannie Bowen for the year 1931 under an oral contract; she was to pay $360 and one year’s taxes. There was an agreement with respect to the manner in which supplies were to be furnished. She took charge of the land under the rental contract and agreed to xoay the $360 and taxes. She farmed the land in 1931 but did not pay the rent. I gave her notice to vacate the premises in 1932. She failed- to give possession on 1 January, 1932.”

The defendant denied the rental contract and contended that she and her husband had executed a mortgage and a deed of trust on the land in controversy, and that at a sale under the deed of trust the president of the plaintiff had bought the land for her benefit under an agreement that she should have ten years in which by annual installment to pay the amount due. She testified that she had never rented the land from the plaintiff and had never given up her possession.

The magistrate found from the evidence before him that the relation of landlord and tenant existed between the parties and that the defendant held possession of the land after her term had expired. Upon these findings he adjudged that the plaintiff was entitled to possession.

These were the only questions of which the magistrate had jurisdiction. In appeals from justices of the peace the jurisdiction of the Superior Court is entirely derivative. If the justice has no jurisdiction the Superior Court can derive none by appeal. It is the jurisdiction of the justice which, on appeal, gives jurisdiction to the Superior Court; the appellate court tries de novo the action as constituted in the justice’s court. Ijames v. McClamroch, 92 N. C., 362; Cheese Co. v. Pipkin, 155 N. C., 394; McLaurin v. McIntyre, 167 N. C., 350; Comrs. v. Sparks, 179 N. C., 581; Sewing Machine Co. v. Burger, 181 N. C., 241, 248; Trust Co. v. Leggett, 191 N. C., 362.

*377In recognition of tbis principle tbe trial court submitted to tbe jury only one issue: “Was tbe defendant tbe tenant of tbe plaintiff and did she bold over after tbe expiration of tbe tenancy?” — and tbe jury answered tbe issue in tbe negative. Tbe verdict put an end to tbe plaintiff’s cause of action of wbicb tbe justice bad original and tbe Superior Court derivative jurisdiction. A justice of tbe peace bas no equitable jurisdiction but be may consider an equity wbicb is set up as a defense to tbe plaintiff’s action. Lutz v. Thompson, 87 N. C., 334; Dougherty v. Sprinkle, 88 N. C., 300; Cotton Mills v. Cotton Mills, 116 N. C., 647; Kiser v. Blanton, 123 N. C., 400; Levin v. Gladstein, 142 N. C., 482. In McAdoo v. Callum, 86 N. C., 419, it was shown tbat tbe lessor of a storeroom agreed tbat at tbe expiration of a subsisting lease tbe lessee should have tbe right to renew tbe lease for another year. Tbe Court held tbat tbe agreement, while not a renewal of tbe lease, created an equity wbicb could be pleaded as a defense in summary proceedings in ejectment.

Tbe subject was again considered in Jerome v. Setzer, 175 N. C., 391, in wbicb it was said tbat summary proceedings in ejectment will not lie if tbe tenant bolds an interest in tbe property itself; but if tbe interest is only an option to purchase tbe tenant bas no such equity in tbe land as will deprive tbe justice’s court of its jurisdiction or tbe Superior Court of its derivative jurisdiction. In tbe present case tbe character of tbe defendant’s alleged interest need not be determined because tbe defense is primarily an absolute denial of tbe tenancy, dissevered from tbe nature and quantity of tbe defendant’s interest. Compare Ins. Co. v. Totten, 203 N. C., 431.

In tbe case at bar tbe defendant’s allegation of tbe plaintiff’s agreement to sell her tbe land was not made tbe basis of a prayer for affirmative relief but merely a defense to tbe action brought in tbe magistrate’s court. In effect her defense was restricted to a denial of tbe rental contract; in consequence, such questions as tbe creation of a parol trust, or a contract to convey title to tbe defendant, or a tenancy at will or by sufferance pending a treaty of purchase were incidental to tbe main defense and evidently were so considered. Tbe position tbat a tenancy existed pending a treaty of purchase is substantially an admission tbat a contract of purchase bad been executed; and if so, tbe relation of tbe parties would require tbe administration of equitable principles.

We have given all tbe exceptions due consideration and in our opinion none of them should be sustained. Tbe issue determined tbe whole controversy. The defendant neither asked nor obtained affirmative relief upon any of tbe matters set up in her answer. As tbe relation of landlord and tenant did not exist tbe rights of tbe parties may yet be litigated in a court of competent jurisdiction.

No error.