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the ground that it appeared from the facts of the complaint: (1) That the deed from Joel Britt, Sr., to John Britt conveved only a life estate. (2) That the said John Britt died before the commencement of the action. The pleadings thus presented to the court every fact material to and upon which the plaintiff relied in that action for his recovery, and upon such facts the court declared that as a matter of law, the plaintiff was not the owner of the land and could not re


We think this a judgment upon the merits. It is true that the judge gave to the plaintiff leave to amend his complaint, but we do not think that this in any manner affected the force and effect of the judgment. It is evident that the plaintiff had set forth his title and that he could not by amendment change or in any manner affect his status in respect to the land. We think that the language used by Smith, C. J., in Johnson v. Pate, supra, is directly in point in this case. The court says: "Recurring to the complaint in the former case, it asserts particularly a title vesting in the plaintiff in these lands and a consequent right to have possession. The averment the demurrer admits and the effect is the same as if they had been controverted and found upon issues passed upon by a jury."

This position is fully sustained by the authorities cited in the plaintiff's brief. In 6th Enc. Pl. & Pr., 369, a distinction is pointed out and it is said: "When a demurrer goes to the merits of the action, judgment sustaining it is conclusive upon the parties, and will bar another action for the same cause, but when it goes only to matters of form it does not have this effect." See also Black on Judgments, Sec. 707; Freeman on Judgments, Sec. 267; Bigelow on Estoppel, p. 33.

We do not think that these authorities conflict with those cited in the defendant's brief. The cases therein cited are Vol. 132-17


distinguishable from the principle upon which the judgment in this action is rendered.

We think his Honor correctly instructed the jury, and the judgment rendered by him must be



(Filed March 31, 1903.)

1. CLAIM AND DELIVERY-Replevin-Deeds-Trover.

Claim and delivery will lie for the recovery of a title deed if the controversy does not involve the determination of the title to the land conveyed by it.

2. JUSTICES OF THE PEACE-Jurisdiction-Real Property-Claim and Delivery-The Code, Secs. 836, 837, 838.

In an action for the recovery of a title deed, an allegation in the answer that title to real property is involved, without any proof thereof, does not oust the jurisdiction of a justice of the peace.

ACTION by Annie D. Pasterfield and husband against J. H. Sawyer, heard by Judge George A. Jones, at May Term, 1902, of the Superior Court of PASQUOTANK County. From a judgment of non-suit the plaintiffs appealed.

E. F. Aydlett, for the plaintiffs.

George W. Ward and William Bond, for the defendant.

WALKER, J. This action was brought before a justice of the peace for the recovery of a deed for real estate. The justice gave judgments for the plaintiffs and the defendant appealed to the Superior Court.

It appears from the case on appeal that in the lower court "the defendant moved to dismiss the action, and stated that he claimed to hold the deed in controversy as an escrow, and that the conditions upon which it was held had not been com


plied with on the part of the plaintiffs. The court, being of the opinion that the justice of the peace had no jurisdiction of the action, intimated that the plaintiffs could not recover in this action, upon which intimation the plaintiffs submitted to a non-suit and appealed."

The plaintiffs alleged in their complaint that the deed had been executed by M. W. Buffkin and wife to the feme plaintiff and was delivered by them to her husband, who deposited it with Mr. Sawyer, the defendant, for safe-keeping, and that the said deed is the property of the feme plaintiff and she is entitled to the immediate possession thereof, and has demanded the possession of the defendant, who refused to deliver the deed to her. These allegations are denied by the defendant in his answer.

The general rule is that replevin will lie for the recovery of title deeds, "but neither the common law action nor the provisional remedy of claim and delivery can be maintained for the unlawful taking or the wrongful detention of a title. deed when there is a dispute about its delivery and the controversy involves the determination of the title to the land conveyed by it." Hooker v. Latham, 118 N. C., 179.

The court below did not dismiss the action because the action of replevin or an action for the possession with the ancillary remedy of claim and delivery would not lie for the recovery of the deed, but because the justice of the peace did not have jurisdiction. Presumably the ground for the decision was that, as the delivery of the deed was disputed in one way or another, the title to land was in controversy and the decision of that question would of necessity determine to whom the title belonged. This may be granted, and still we think that the court proceeded irregularly. It is provided by The Code as follows:

"Sec. 836. In every action brought in a court of a justice of the peace where the title to real estate comes in contro


versy, the defendant may, either with or without other matter of defence, set forth in his answer any matter showing that such title will come in question. Such answer shall be in writing, signed by the defendant or his attorney, and delivered to the justice.

"Sec. 837. If it appears on the trial that the title to real estate is in controversy, the justice shall dismiss the action and render judgment against the plaintiff for costs.

"Sec. 838. When an action before a justice is dismissed upon answer and proof by the defendant that the title to real estate is in controversy in the case, the plaintiff may prosecute an action for the same cause in the Superior Court, and the defendant shall not be admitted in that court to deny the jurisdiction by an answer contradicting his answer in the justice's court."

It will be seen that the defendant is required not only to set forth the matter showing that such title will come in question, but it must appear at the trial that such is the fact, and when the action is once dismissed upon an answer and proof by the defendant, for that reason, the defendant will not be permitted to question the jurisdiction of the Superior Court, if an action for the same cause is afterwards brought in that court. There must be something besides the mere answer, for, if this is all that is required, any defendant can put an end to the jurisdiction of the court of his own will. The law requires, therefore, in addition to the answer, some proof in order that it may appear in a proper way to the court that there is a genuine controversy concerning the title to real estate.

It seems perfectly clear therefore that as there must be not only an answer, but that proof must be offered by the defendant, or it must in some way appear by proof in the case that there is a controversy concerning the title to real estate, the court erred in intimating at that stage of the case


that there was no jurisdiction. His expression of opinion was at least premature. For the reasons stated, the non-suit is set aside and a new trial awarded. Per Curiam.

New Trial.

(Filed March 31, 1903.)

NEGLIGENCE-Contributory Negligence-Fires-Demurrer-Pleadings. Where a person is injured as here, in attempting to extinguish a fire negligently set to her premises by a railroad company, the company is liable.

ACTION by Alexander Burnett, administrator, against the Atlantic Coast Line Railway Company, heard by Judge Oliver H. Allen, at October Term, 1902, of the Superior Court of CUMBERLAND County. From the sustaining of a demurrer to the complaint the plaintiff appealed.

Thomas H. Sutton, for the plaintiff.
George M. Rose, for the defendant.

MONTGOMERY, J. This action was heard on the complaint and the demurrer thereto. The plaintiff alleged that his intestate had been fatally burned in her effort to extinguish a fire set upon the premises through the negligence of the defendant. In the third allegation of the complaint the plaintiff, after describing the nature of the fire and the threatened danger to her home and property, declared that she attempted to put out the fire, as it was her duty to do. The demurrer of course admitted that under the facts set out in the complaint it was her duty to attempt the extinguishment of the fire. That being so, in no sense could it be said that the plaintiff could be guilty of contributory negligence. To do

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