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(Filed April 21, 1903.)

1. JUDGMENTS-Evidence-Justices of the Peace-Record.

A judgment of a justice of the peace is not competent evidence without proof of his handwriting.

2. JURISDICTION-Justices of the Peace-Mortgages.

A justice of the peace has jurisdiction of an action on a note given for a contract to convey land, the only defense being that payments had been made on the note.

ACTION by M. L. Patterson against R. C. Freeman, administrator of W. A. Jones and others, heard by Judge H. R. Bryan and a jury, at Spring Term, 1901, of the Superior Court of SURRY County. From a judgment for the defendants, the plaintiff appealed.

Watson, Buxton & Watson, for the plaintiff.
Carter & Lewellyn, for the defendants.

CONNOR, J. The plaintiff alleges that he contracted in writing to convey to W. A. Jones, deceased intestate of defendant Freeman, and ancestor of the other defendants, a tract of land, the boundaries of which are set out. That to secure the purchase money therefor said Jones executed his promissory note, upon which he afterwards recovered judgment before a justice of the peace said judgment with interest, amounting to $190. That plaintiff has at all times been ready, willing and able to perform his part of the contract. That said Jones died leaving but a small amount of personal property wholly insufficient to pay his debts. That a sale of the said land is necessary to pay said note. He demanded judgment that the land be sold by a commissioner and the proceeds applied to the discharge of the note or judgment. The defendants heirs at law of W. A. Jones, file answers admitting the contract and denying that any judg


ment was rendered on the note. They allege that many payments have been made on the note and that there is a very small sum, if any, now due thereon, and that the defendants are ready, willing and able to pay the same. They further allege that as they are informed, the plaintiff did bring suit against W. A. Jones upon the same obligation that he alleged W. A. Jones had executed to him and did obtain judgment thereon, but that said judgment in no way affects the rights of defendants; that a court of a justice of the peace had no jurisdiction to enforce specific performance of a contract; that the items of payment made by W. A. Jones on the purchase money for said land are numerous and so complicated that a reference is necessary to ascertain the exact amount due, etc. The administrator answers, admitting the several allegations of the complaint.

The case on appeal states that "to establish his claim, the plaintiff offered a judgment purporting to be signed by E. F. Wall, a justice of the peace;" that the defendant objected to the judgment upon the following grounds:

1. First that the judgment was not properly proved.

2. That a justice of the peace had no jurisdiction of the subject matter of the action.

3. That the justice undertook to declare the judgment a lien upon land and that the judgment was for that reason void. His Honor sustained the objections and rendered the following judgment: "This cause coming on to be heard, etc., upon the pleadings before me, and it is adjudged that the judgment of E. F. Wall, justice of the peace, set out in the plea be and the same is declared null and void," etc. His Honor thereupon ordered a reference to take and state an account. The plaintiff excepted and appealed.

The record leaves us in doubt as to the grounds upon which his Honor's judgment is based. If upon the ground that the judgment was not proved, we would concur with him. The


judgment of a justice is not such a record as entitles it to be introduced without proof of the handwriting of the justice who rendered it. Reeves v. Davis, 80 N. C., 209.

It seems, however, that his Honor was of the opinion that the justice did not have jurisdiction of the subject matter of the action. In this we think he was in error. While it is true that the justice had no jurisdiction to administer equitable relief, foreclosure of defendant's equity, and to order a sale of the land, he had jurisdiction of an action in per sonam or to hear and determine whether the defendant was indebted to the plaintiff—the amount claimed being less than two hundred dollars. If the defendant had desired to interpose any defense involving the title to land of which the justice had no jurisdiction, he may have done so, as provided by Section 836 of The Code, and the action, if it appeared upon the trial that the title to land was in controversy, would have been dismissed. It appeared from the answer that the only defense was that payments had been made on the note. The justice was competent to try that question. If the plaintiff had in his complaint asked for equitable relief, this would not have ousted the jurisdiction; the justice would simply have declined to hear and determine such question or grant such relief. The practice in such case is pointed out in Deloatch v. Coman, 90 N. C., 186; Singer Mfg. Co. v. Barrett, 95 N. C., 36; Starke v. Cotten, 115 N. C., 81; Hargrove v. Harris, 116 N. C., 418; Proctor v. Finley, 119 N. C., 536. The judgment recites that it is rendered upon the pleadings. While this would indicate that a motion to dismiss was made and sustained, it is evident from the "case on appeal" that this is an inadvertence. We would, however, be compelled to adopt the judgment as the basis of our ruling. In either aspect of the case, there was error in holding that the judgment was void. why, upon proper proofs the judgment is not competent evi

We can see no reason


dence of the amount due the plaintiff by W. A. Jones, under whom the defendants claim an interest in the land.

must be a

New Trial.



(Filed April 21, 1903.)

DEEDS Construction-Description.

Where the owner of a one-fifth undivided interest in a tract of land executes a deed purporting to convey his entire interest in the land, but refers to his interest as a one-sixth undivided interest, such deed passes his entire interest in the land.

ACTION by Thomas Murphy and wife against Clarence Murphy and others, heard by Judge Thomas J. Shaw and a jury, at September Term, 1902, of the Superior Court of ROWAN County. From a judgment for the defendants, the plaintiffs appealed.

Craige & Craige, for the plaintiffs.
Overman & Gregory, for the defendants.

CONNOR, J. This was a special proceeding commenced in the Superior Court of Rowan County for the sale of a lot of real estate in the city of Salisbury, known as the "Murphy's Granite Row," upon which is located four store houses. The answer filed by the defendants denied the material averments in the complaint, whereupon issues were drawn and the cause transferred to the Superior Court in term for trial. Thereafter the cause was referred to Hon. Armistead Burwell to hear and determine all issues of law and fact and

report his conclusions to the court. So much of the report


as is material to the decision of the question presented upon the appeal is:

"1. That the property described in the petition as Murphy's Granite Row was the property of William Murphy and upon his death in the year 1867 the plaintiff, Thomas Murphy, became the owner of one undivided sixth part thereof in fee simple."

"2. That upon the death of Jane Murphy in December, 1871, Thomas Murphy inherited one-fifth part of her onesixth part of said property and thereafter and up to January 4, 1873, was seized and possessed of one undivided fifth of said Murphy's Granite Row."

On January 4, 1873, the plaintiff Thomas Murphy and his wife executed a deed to Mrs. Susan W. Murphy, conveying "to her and her heirs and assigns all his interest in a lot of land lying in the County of Rowan and State of North Carolina, bounded as follows: Situate in Main street in the town of Salisbury and known as "Murphy's Granite Row," the ipterest of the party of the first part in and to said real estate being one undivided sixth interest therein. And all of the estate, right, title, interest, claim or demand, dower and right of dower in law or equity, or otherwise howsoever, of the said Thomas Murphy, party of the first part, of, in and to the same, and every part and parcel thereof," etc.

It appeared that subsequent to the execution of said deed the plaintiff became the owner of one-twentieth undivided interest in said real estate.

The referee found as a conclusion of law: "That the effect of the deed dated January 4, 1873, executed by the plaintiff Thomas Murphy and delivered to Mrs. Susan W. Murphy is such that she thereby acquired a good title in fee to all of the interest in the said 'Murphy's Granite Row,' which Mrs. Murphy owned at this date, to-wit, one undivided fifth part thereof."

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