Dean v. . Duvall

178 S.E. 846, 208 N.C. 822, 1935 N.C. LEXIS 146

• Court: Supreme Court of North Carolina
• Decided: March 20, 1935
• Status: Published

Opinion

Pee Ouecam.

The defendant contends that the title to the land was in controversy, and that therefore a justice of the peace did not have jurisdiction of the action.

The pertinent statutes are C. S., 1476, 1477, and 2365.

In proceedings of summary ejectment the title to land is not raised or put in controversy by mere allegation that such controversy exists. McDonald v. Ingram, 124 N. C., 272, 32 S. E., 677; Perry v. Perry, 190 N. C., 125, 129 S. E., 147; Hauser v. Morrison, 146 N. C., 248, 59 S. E., 693; McLaurin v. McIntyre, 167 N. C., 350, 83 S. E., 627; North. Carolina Practice & Procedure, p. 55. See Ins. Co. v. Totten, 203 N. C., 431, 166 S. E., 316.

The defendant did not allege facts creating a controversy with respect to the title of the property, but it seems that he attempted to offer evidence that he had given a mortgage or deed of trust on the property, and that the relationship of mortgagor and mortgagee existed. All such evidence, however, was stricken out. The jury did not answer the issue as to whether the plaintiff was the owner of the land or not, and the record is so meager that we are unable to determine the rights of the parties.

New trial.