Prudential Insurance Co. of America v. Totten

Stacy, C. J.

In the statement of case on appeal, the parties have styled the present proceeding “a civil action in the nature of a summary *433 proceeding in ejectment.” It was commenced in a court of a justice of the peace, and heard de novo on appeal to the Superior Court of Durham County.

It is the position of the plaintiffs that the defendant is estopped by the terms of his own deed of trust to deny the tenancy now existing between the Prudential Insurance Company of America as landlord and the defendant and his wife as tenants.

Gaylord v. Gaylord, 150 N. C., 222 , 63 S. E., 1028 .

The defendant, on the other hand, contends that the demise inserted in said deed of trust, if, indeed, the same be valid (McCombs v. Wallace, 66 N. C., 481 ;

Brooks v. Griffin, 177 N. C., 7 , 97 S. E., 730 ), does not create such a tenancy within the meaning of the landlord and tenant act as to subject the defendants to eviction by a summary proceeding before a justice of the peace. C. S., 2365;

Hughes v. Mason, 84 N. C., 473 ;

Hauser v. Morrison, 146 N. C., 248 , 59 S. E., 693 ;

Hamilton v. Highlands, 144 N. C., 279 , 56 S. E., 929 ;

Shelton v. Clinard, 187 N. C., 664 , 122 S. E., 477 ;

McLaurin v. McIntyre, 167 N. C., 350 , 83 S. E., 627 .

In McDonald v. Ingram, 124 N. C., 272 , 32 S. E., 677 , it was said: “The only question the court can try under the statute in this proceeding is: ‘Was the defendant the tenant of plaintiff, and does she hold over after the expiration of the tenancy?’” No demand for rent has ever been made by plaintiffs in the instant case.

The defendant further contends that under the principle applied in McNinch v. Trust Co., 183 N. C., 33 , 110 S. E., 663 , and other cases of like import, the relation of trustee and cestui que trust exists between the Prudential Insurance Company of America and the defendant, which also takes the case from under the landlord and tenant act.

McCombs v. Wallace, supra; Riley v. Jordan, 75 N. C., 180 ;

Abbott v. Cromartie, 72 N. C., 292 .

That a tenant who takes .possession of demised premises under a lease from the landlord, or being in possession unconditionally agrees to hold as such (Riley v. Jordan, supra), will not be permitted to dispute the landlord’s title, during the continuance of the tenancy, is established by all the authorities on the subject.

Hobby v. Freeman, 183 N. C., 240 , 111 S. E., 1 ;

Clapp v. Coble, 21 N. C., 177 . But this principle, founded upon reasons of public policy, applies only in cases where the simple relation of landlord and tenant exists (Abbott v. Cromartie, supra), and does not extend to instances where title to the property is brought in question or equities are to be adjusted between the parties.

Hughes v. Mason, supra; Hauser v. Morrison, supra; Turner v. Lowe, 66 N. C., 413 .

*434 It follows, therefore, as the title to the property is in issue, and the relation between the parties other than that of conventional landlord and tenant, the jurisdiction of the justice of the peace was ousted and the proceeding was properly dismissed as in case of nonsuit.

Hughes v. Mason, supra; Shelton v. Clinard, supra.

Affirmed.