— after stating the facts: When a grantor recovers judgment against his grantee, on a note given for the purchase money of land previously conveyed fo the latter, and purchases the land at Sheriff’s sale under execution issued thereon, it is competent for the former, on the trial of an action brotight against the grantee for possession; to prove by parol testimony that the note was given for the purchase money of ibe land in controversy, in order to show that such sale was valid, though made without a previous allotment of homestead. Constitution, Art. X, §2; Durham v. Bostick, 72 N. C., 353; Toms v. Fite, 93 N. C., 274; Dail v. Sugg, 85 N. C., 104.
Where a judgment is rendered in a court of competent jurisdiction for purchase money of land in pursuance .of sections 234, 235 and 236 of The Code, it is conclusive between the parties as to the consideration of the debt on which the recovery was had. Toms v. Fite, supra. But the *598defendant contends that these sections do not apply to actions brought before a Justice of the Peace. Section 234 provides that, “In an action for the recovery of a debt contracted for the purchase of land, it shall be the duty of the plaintiff to set forth in his complaint that the consideration of the debt sued on was the purchase money of certain land, describing said land in an intelligible manner, such as the number of acres, how bounded and where situated.” In the next section it is enacted that when the defendant “shall deny that the obligation sued on” was incurred “for the purchase money of the land described in the complaint, it shall be the duty of the Court to submit the issue so joined to the jury.” The Constitution, An. IV, § 27 (after giving the Justices of the Peace original jurisdiction of “civil actions, founded on contracts, wherein the sum demanded shall not exceed two hundred dollars, and wherein the title to real estate shall not be in controversy) provides that when an issue of fact shall be joined before a Justice of the Peace; on demand of either party thereto, he shall cause a jury of six to be summoned who shall try the same, and further, that the losing party shall, in all cases, have the right of appeal. If a defendant, after having been duly summoned fails to appear and answer before a Justice of the Peace, he thereby waives, and loses, the right to demand a trial by jury, given by the Constitution and The Code, §285. When the Justice calls the case for trial, and finds that the plaintiff has not filed a verified complaint, he cannot force him, in 'the absence of the defendant, to incur the expense of summoning a jury, but, in the most unfavorable view, can only refuse to enter judgment by default, and compel him to make good his allegations, either oral or written, as to the existence and character of the debt, by sufficient testimony to satisfy the Justice sitting as a court and jury. The Code, §§857, 385 (1), 389 and 840, Rules II and VI. We must *599assume, in the absence of any evidence in the transcript to the contrary, that the judgment was rendered after hearing testimony tending to prove that the notes were still due, and were executed in consideration of the purchase of the land described in the judgment
The issue of fact, when raised by the allegation made by the plaintiff, and denied on the part of the defendant, that a note was given for the purchase money of the land, is not one involving any controversy as to the title to real estate, and the Legislature had the power therefore to provide for trying it before a Justice of the Peace, and it was, in fact, obligatory to do so, where the amount demanded does not exceed two hundred dollars.
The appellant did not assign error in the manner pointed out by the rule of this Court, but, by giving the construction most favorable to his own statement of the case on appeal, we have allowed him the benefit of an exception to the holding of the Court below, that upon the admitted facts the plaintiff was entitled to recover, and especially that it could not go behind the judgment to inquire into the consideration of the debts upon which the judgments were founded.
Affirmed.