FORSYTHE v. BULLOCK. The defendant offered to prove that the said deed, although upon its face purporting to be an unconditional conveyance, was in fact intended as a mortgage for money borrowed. The evidence was conflicting as to whether or not the defendant had rented the premises from the plaintiff. His Honor being of the opinion, that if the deed was in fact intended as a mortgage, the defendant's remedy was by summons for relief, to reform the deed, rejected the evidence upon that point and the defendant excepted. upon The jury returned a verdict in favor of the plaintiff, wherethe defendant moved for a venire de novo. Motion overruled, and judgment in favor of the plaintiff. The defendant appealed. Hargrove, with whom was Venable for the appellant cited: McCombs v Wallace, 66 N. C. Rep. 481; McMillan v Love, 72 N. C. Rep. 18; Green v Wilbar, Ibid, 592; Turner v Lowe, 66 N. C. Rep. 413; and Credle v Gibb, 65 N. C. Rep. 192. Edwards, Batchelor & Son, Peace and Young, contra argued : A Justice of the Peace has no jurisdiction of action by purchaser at execution sale against defendant in the execution. Creedle v. Gibbs, 65 N. C. Rep., 192; Doolin v. Howard, N. C. Rep., 433. Nor of an action by the purchaser at a sale under a deed in trust against the trustor. McCombs v. Wallace, 66 N. C. Rep. 481. Froelick v. So. Ex. Co.. 67 N. C. Rep., 1, shows jurisdiction of Justices of the Peace in matters of contract: Has no jurisdiction upon action for deceit in sale of a mule. Ballinger v. Marshall, 70 N. C. Rep., 520; Latham v. Rollins, 72 N. C. Rep. 455. But if one takes my horse and sells it, and receives the money. I may waive the tort and sue for money had and received to my use, and if the sum does not exceed two hundred ($200) dollars, the jurisdiction be FORSYTHE v. BULLOCK. longs to a Justice of the Peace. Bullinger v. Marshall supra; Winslow v. Weith, 66 N. C. Rep., 432. No jurisdiction of proceedings of forcible entry and detainer. Perry v. Tupper, 70 N. C. Rep., 538; Railroad v. Johnson, Ibid, 509; State v. Yarborough, Ibid, 250. Contract to convey land, plaintiff pays thirty ($30) dollars for outstanding incumbrance to perfect his title. Justice of the Peace has jurisdiction of action to recover this sum. Templeton v. Summers, 71 N. C. Rep., 269. Landlord and Tenant Act does not apply to a mortgagor who is allowed to remain in possession, &c. Greer v. Wilbar, 72 N. C. Rep., 592; McMillan v. Son, Ibid 18; Battle's Revisal, chap. 64, sec. 19; Chapter 63, secs. 16 and 17; Constitution, Article IV, sec. 33. Tenant can never dispute his landlord's title until he yields possession. Abbott v. Cromartie, 72 N. C. Rep., 294; Turner v. Low, 66 N. C. Rep. 413. A Justice of the Peace having jurisdiction to try the principal question, has jurisdiction to try every incidental question which may arise in the progress of the action. Haynes v. Dalton. 3 Dev., 91; Garrett v. Shaw, 3 Iredell, 395. SETTLE, J. A Justice of the Peace is prohibited by the Constitution from entertaining jurisdiction of any action wherein the title to real estate shall be in controversy. This does not conflict with any of the decisions, where it has been held, that a lessor may take summary proceedings before a Justice of the Peace, to recover possession from a lersee who holds over after the expiration of his term, where there is no other relation than that of lessor and lessee to complicate the question, for in such cases the tenant is estopped to deny the landlord's title. But, as is said in Turner v. Love, 66 N. C. Rep., 413, a tenant might always show an equitable title in himself against the legal title of his landlord, or any facts which made it in FORSYTHE ". BULLOCK. equitable in the landlord to use his legal estate to turn him out of possession. In the case at bar, the defendant offered to prove that the deed for the premises, made by him to the plaintiff, although on its face purporting to be a conveyance in fee simple, was in fact intended as a mortgage, to secure the payment of borrowed money, and was delivered as such, and that he, the defendant, had made large payments thereon. His Honor, being of opinion that, if this defence was true, the proper remedy for the defendant was by summons for relief to reform the deed, rejected the evidence. In Turner v. i ove, supra, it is said when law and equity were administered by distinct tribunals, the tenant was obliged to go into a Court of Equity for that purpose. But now, that they are administered by the same court, and without any distinction of form, the tenant can set up in his answer any equitable defence he may have to his landlord's claim. If such a defence cannot be set up in the Superior Court, it cannot anywhere, for we have no separate Court of Equity. Our conclusion is: 1. That his Honor should have dismissed the proceedings for want of jurisdiction in the Justice of the Peace, before whom they were instituted. 2. That the evidence offered by the defendant was competeet to show that it was not the simple case of lessor and lessee, which is embraced by the landlord and tenant act. There must be a venire de novo. PER CURIAM. Venire de novo. EXUM v. COGDELL and others. WILLIAM J. EXUM v. DANIEL COGDELL and others. One who has title to land is not estopped from asserting the same against a purchaser from a third party for a valuable consideration, but with notice of the defect in the title of the vendor, although the vendor claim title under the real owner. (Cogdell, Assignee, v. Exum, 69 N. C. Rep. 464, cited and commented upon; Holmes v. Crowell, 73 N. C. Rep. 613, cited and approved.) CIVIL ACTION, in the nature of ejectment, tried before Seymour, J., and a jury, at Fall Term, 1875, of WAYNE Superior Court. ་ The action was commenced May 19th, 1872, by the plain-tiff against Z. L. Thompson, to recover possession of thirteen acres of land. At Fall Term, 1872, Daniel Cogdell, assignee in bankruptcy of Z. L. Thompson, was made a party defendant.. (The Register's deed in bankruptcy bears date February 25th, 1869, and was registered in Wayne county January 20th, 1873.) The locus in quo was, at the commencement of the action. and still is, in the possession of the defendant Thompson.. The plaintiff produced in evidence a judgment and execution. against the defendant Thompson, returnable to May Term, 1868, of Wayne County Superior Court, under which the sheriff sold the "George Thompson old place," May 20th, 1868, to one R. T. Fulghum, and a sheriff's deed, duly registered, to the said R. T. Fulghum, which inclnded the locus in quo, and also a deed, iucluding the same, dated October 17th,. 1868, from Fulghum to the plaintiff. in It was in evidence for the defendant, and admitted by the plaintiff, that the sheriff did not levy upon and sell the locus quo. and that the deed as originally made to Fulghum did not cover it, but that subsequent to the registration of the same, at the request of both Fulghum and the defendant Thompson, a description of the locus in quo was interlined by EXUM v. COGDELL and others. the sheriff in the deed and by the register of deeds in his record of the conveyance. The defendant Thompson was insolvent at the time of the sheriff's sale. The plaintiff bought of Fulghum after the interlineation, for a valuable consideration, at the instance and request of the defendant Thompson, and has subsequently with the assent of Thompson, by contract dated January 12th, 1870, contracted to convey fifty acres of the land conveyed by the sheriff's deed, including the locus in quo, to one Dr. Exum. It was a part of this contract that Dr. Exum should convey the fifty acres to the defendant Thompson upon being repaid the purchase money. The above stated facts being conceded, there was a conflict in the evidence as to whether the plaintiff purchased of Fulghum with notice of the interlineation, and upon that question the following issues were submitted to the jury: 1. Did the plaintiff, W. J. Exum, at the time of purchasing the thirteen acres now in controversy, have notice of the interlineation in the sheriff's deed? 2. Did he have notice that the sheriff did not offer and sell said land at his sale? To both of these issues the jury responded in the affirmative. The plaintiff introduced in evidence the record of a former action, in which the plaintiff in this action was defendant, and the defendant was plaintiff, and insisted that, that action was conclusive against the defendant in this action, by way of estoppel. This action is reported in 69 N. C. Rep., 464, under the title of Cydell, Assignee. v. Ecum. The defendant in that action contended that the complaint did not cover the locus in quo and the plaintiff contended that it did. Both parties agreeing upon what was the land covered by the description in the complaint, and the difference being one of construction merely, the court passed upon it as a matter of |