Perry v. . Perry

129 S.E. 147, 190 N.C. 125, 1925 N.C. LEXIS 23

• Court: Supreme Court of North Carolina
• Decided: September 16, 1925
• Status: Published

Opinion

Vaeseb, J.

In summary ejectment there is, of course, only one main issue involved, and that is tenancy and the holding over. McDonald v. Ingram, 124 N. C., 272; McIver v. R. R., 163 N. C., 545. However, it naturally follows that the summary remedy in ejectment provided by statute is restricted to cases in which the relation between the parties is that of landlord and tenant. McIver v. R. R., supra; Hauser v. Morrison, 146 N. C., 248; McCombs v. Wallace, 66 N. C., 481; Hughes v. Mason, 84 N. C., 472; Fertilizer Works v. Aiken, 175 N. C., 398; Hargrove v. Cox, 180 N. C., 362.

The defendant denies that this relation exists. He expressly testifies that he did not rent the lands from the plaintiffs. The evidence offered is not competent to show title in another, if the relation of landlord and tenant does exist. This testimony as to a rental by defendant from Bundy, in 1923 and 1924, and as to a controversy between the Perrys and defendant’s wife is competent to be considered by the jury on the issue as to the rental contract, as a circumstance, in determining whether there was such a contract. It is also competent as corroborative of the defendant’s testimony. These are the only purposes for which it is competent. Thus restricted, the testimony ought to have been admitted.

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 in himself (16 R. C. L., 657) until he has restored the possession to the plaintiffs, but he may contest the issue of tenancy by any competent evidence.

Therefore, let there be a

New trial.