It is familiar learning that a tenant is estopped to deny the title of his landlord. As stated, however, in some of the authorities apposite, the estoppel in question “extends merely to a denial of what has already been admitted, that is, the original landlord’s title and does not prevent a tenant from assailing the validity of an alleged transfer from the original landlord.” The modification suggested is approved by this Court in Steadman v. Jones, 65 N. C., 388-391, and generally recognized as the correct position on the subject, Jackson v. Rowland, 6 Wendall (N. Y.), 666; Million v. Riley, 1 Dana (Ky.), 359; 24 Cyc., p. 745; 16 R. C. L., p. 670; title Landlord and Tenant act, 156. In any event, therefore, there was error to defendant’s prejudice in refusing to consider the evidence offered by defendant tending to show that the plaintiff had not succeeded to the right which the defendant had recognized in taking the alleged house. And this cause being a summary proceeding in ejectment instituted before a justice of the peace, we are of opinion further, from the facts of the record as they now appear, that this action should be dismissed for lack of jurisdiction to proceed further with the hearing. Our Constitution, Art. IY, sec. 27, denies to justices of the peace jurisdiction of causes where the title to real estate is in controversy, and it is the accepted position, approved and illustrated in numerous decisions, that where a justice’s court is without jurisdiction of a cause of action, the Superior Court, on appeal, cannot proceed with it, the jurisdiction of the latter being' derivative only, and dependent on that of the justice of the peace where the cause originated. McLaurin *362 v. McIntyre, 167 N. C., 350; McIver v. R. R., 163 N. C., 544; Cheese Co. v. Pipkin, 155 N. C., 394. In tbe last citation tbe principle is stated as follows: “Tbe Superior Court bas no jurisdiction on appeal from a justice’s court of an action erroneously brought in tbe latter court, and of wbicb tbe justice’s court bad no jurisdiction, tbe jurisdiction of tbe Superior Court being derivative only.” Again, while our Court bas been very insistent on tbe principle that where one bas entered under a lease or contract of rental, be may not dispute or question tbe title of bis landlord without first surrendering tbe possession. Tbe position does not necessarily or usually prevail when tbe title of tbe landlord bas terminated, and especially when tbe same bas been acquired by or descended upon tbe tenant. As said in Lawrence v. Eller, tbe loyalty wbicb affords tbe basis for tbe position is to tbe title under wbicb tbe tenant bas entered, and in tbe case suggested tbe loyalty in question not infrequently permits and may require that tbe tenant shall avail himself of tbe title acquired to protect bis possession, and is allowed to assert and insist upon it for tbe purpose indicated. Lawrence v. Eller, 169 N. C., 211-213; Forsythe v. Bullock, 74 N. C., 135; Turner v. Lowe, 66 N. C., 413. In tbe Lawrence case tbe general principle, and some of tbe exceptions, are stated as follows: “It is recognized as tbe general rule that a tenant is not allowed to controvert tbe title of bis landlord or set up rights adverse to such title without having first surrendered tbe possession acquired under and by virtue of tbe agreement between them.
“Tbe position does not usually obtain where, after tbe renting, tbe title of tbe landlord bas terminated, for, under tbe doctrine as it. now prevails, tbe loyalty required is to tbe title, not to tbe person of tbe landlord, and in courts administering principles of equity tbe estoppel is not recognized when tbe tenant bas been misled into a recognition of bis lessor’s title by mistake or fraud, and under circumstances wbicb would induce a court of equity to bold -the landlord .a trustee for tbe tenant, and there are other exceptions of a restricted nature.” And in Turner v. Lowe, supra, it was held as follows: “Tbe principle that a tenant cannot dispute bis landlord’s title is in full force, but a tenant was never prevented from showing an equitable title in himself, any facts which would make it inequitable to use tbe legal estate to deprive him of tbe possession.” For this purpose formerly a tenant was driven into equity, but under tbe present system tbe tenant in such cases can avail himself of such equitable defenses in bis answer. And in determining tbe question of justice jurisdiction, tbe courts bold that where a prima facie case within such jurisdiction is stated and made tbe basis of plaintiff’s claim, such jurisdiction is not ousted merely by reason of an answer setting forth a controversy as to the title of realty or other jurisdictional question, but tbe court should bear tbe testimony in tbe cause and deter*363mine from that whether such controversy is in fact and truth presented. From a perusal of the record and on issue joined, there are facts in evidence on the part of the defendant tending to show that the plaintiff is a niece of Edward G-ause, the former owner and alleged landlord, and that the deed from him, under which plaintiff claims the property, was executed five or six days before his death,, when he was approaching 90 years of age; that he had suffered an attack of paralysis three or four months before, was utterly helpless and without mental capacity to make the deed or any other similar paper. There was evidence further to the effect that more than a year before this the owner had executed a will in proper form, which had been admitted to probate, according to which he devises the property to defendant and the sons and grandsons of the devisor. And under a proper application of the authorities cited, and the principles they approve and illustrate, we are of opinion that it is open to defendant to raise the issue as to the validity of plaintiff’s claim and under the testimony referred to there is a controversy involving the title to real property presented which withdraws the case from a justice’s jurisdiction and deprives the Superior Court of the right to proceed further in the matter. McLaurin v. McIntyre, supra; Hahn v. Guilford, 87 N. C., 172; Parker v. Allen, 84 N. C., 466; Forsythe v. Bullock, 74 N. C., 135; Turner v. Lowe, 66 N. C., 414. In the McLaurin case it was held: “The jurisdiction conferred by the landlord and tenant act upon justices of the peace does not obtain where the title to the land is in dispute; and when, in the course of the trial, it appears that the matters involved do not fall within the jurisdiction conferred in these respects, the justice should dismiss the action; and, upon appeal, the Superior Court, acquiring no further jurisdiction than the court wherein the action was commenced, may not proceed with the trial.” In the Parker case the ruling of the Court is stated as follows: “In a summary proceeding in ejectment before a justice of the peace, or on appeal, it is the province of the court to determine whether the title to the land is in controversy, and where the testimony shows that such controversy exists or that equities growing out of a contract of purchase are to be adjusted, as in this case, the proceedings should be dismissed for want of jurisdiction.”
This will be certified to the end that the proceedings be dismissed, plaintiff being free to seek relief by action in Superior Court, if she is so advised.
Eeversed.