By exceptions to the refusal of the court to grant his motions for judgment as in case of nonsuit under O. S., 567, and to the peremptory instructions as to the first and second issues, assigned as error, and by demurrer ore tenus in this Court, defendant appellant challenges the jurisdiction of the court over the subject matter of this action. In the light of the facts as they appear in the record on this appeal we are of opinion and hold that the challenge is not well founded.
The jurisdiction of a justice of the peace in civil actions for recovery of possession of real estate is entirely statutory — and is derived from the landlord and tenant act providing for summary ejectment. Chapter 46, Article 3, sections 2365, et seq., of Consolidated Statutes of North Carolina, 1919. Such jurisdiction may be exercised only in cases where the relationship of landlord and tenant existed within the terms and meaning of the.landlord and tenant act, and where the tenant holds over after the expiration of the term. Credle v. Gibbs, 65 N. C., 192; McCombs v. Wallace, 66 N. C., 481; Hughes v. Mason, 84 N. C., 473; Forsythe v. Bullock, 74 N. C., 135; Parker v. Allen, 84 N. C., 466; McDonald *47 v. Ingram, 124 N. C., 272, 31 S. E., 677; Hauser v. Morrison, 146 N. C., 248, 59 S. E., 693; McIver v. R. R., 163 N. C., 544, 79 S. E., 1107; McLaurin v. McIntyre, 167 N. C., 350, 83 S. E., 627; Ins. Co. v. Totten, 203 N. C., 431, 166 S. E., 316.
In Hughes v. Mason, supra, Dillard, J., speaking for the Court, said: “The landlord and tenant act in Battle’s Eevisal, ch. 64, sec. 19 (C. S., 2365), by its terms and the construction put upon it by the Court, gives the remedy of summary ejectment before a justice of the peace only in the case when the simple relation of lessor and lessee has existed and there is a holding over after the term has expired, either by afflux of time or by reason of some act done or omitted contrary to the stipulations in the lease.”
In McCombs v. Wallace, supra, speaking of tenancy embraced within the meaning of the landlord and tenant act, the Court said: “Upon a careful consideration of this act, we think it was intended only to apply to a case in which the tenant entered into possession under some contract, either actual or implied, with the supposed landlord. . . . The words of the section clearly require that the entry should be under a demise of some sort, although there is no reason for saying that it must be for any definite term; it may be at will.”
The plaintiff contends that while he employed the defendant as manager and custodian of the two houses at 120 and 122 Marlette Street in Chapel Ilill, the entry into and occupancy by defendant and his wife of a room or rooms in the house at 120 Marlette Street was as tenant, and not as servant or employee, or agent. On the other hand, defendant contends that he entered and occupies the room as the employee of plaintiff and for that reason the remedy of summary ejectment is not open to plaintiff.
This basic question now arises: Did the relation of landlord and tenant or lessor and lessee, within the meaning of the landlord and tenant act, exist between plaintiff and defendant with respect to the house at 120 Marlette Street in Chapel Hill? If so, has the term of tenancy terminated ? Upon the facts of this record, both questions are answered in the affirmative.
While, as a general rule, it is held that a person who occupies the premises of his employer as part, of his compensation is in possession as a servant, and not as a tenant, where the occupancy is connected with, or is required for the necessary performance of his service, there are qualifications to the rule. A person may occupy premises as a tenant and yet be a servant of the owner, and where the occupation of the employer’s premises is not a mere incident to the service, the principle of landlord and tenant applies, even though the rental is satisfied by service. Annotations 39 A. L. E., 1145-1149.
Tbe case of 8. v. Smith, supra, was a criminal prosecution for forcible entry, beard upon special verdict. Tbe facts there are these: Tbe defendant Smith hired Jacob Etheridge to work for him during 1887, as a laborer on bis farm in Wake County, agreeing to pay for bis services a stipulated amount of money, to furnish him with a certain monthly allowance of meal and meat, and a bouse to live in, and all crops on three acres of land to be worked by Etheridge, Smith to furnish tbe plowing. Under tbis agreement Etheridge was put in and allowed to occupy a bouse on Smith’s plantation, separated several hundred yards from tbe Smith dwelling bouse. -After having discharged Etheridge and given him notice to vacate the house, Smith, by threats and demonstrations of deadly weapon and an array of numbers, against which resistance would have been useless, drove Etheridge out of the house. The court below adjudged Smith to be not guilty. This Court, in reversing the judgment below, speaking through Smith, C. J., after distinguishing the case of S. v. Curtis, 20 N. C., 363, where the building occupied by the servant was within the curtilage, said: “Etheridge occupied with his family a separate and distinct dwelling, several hundred yards from that of the defendant Smith, and under a special contract by which for his services as a laborer he was to have furnished him a dwelling place and a monthly allowance of meal and meat, as well as the privilege of cultivating a small strip of land for his own benefit. Under this contract he went into possession, raised the crop, and, while in the occupancy of the house, was driven out. There were created, in our opinion, the legal relations of lessor and lessee between the parties, which did not warrant the invasion of the prosecutor’s possession of the premises no more than if he had been on other lands of Smith instead of on the plantation whereon he lived.”
The case of Tucker v. Yarn Mill Co., supra, was an action for recovery of damage resulting from injury sustained by plaintiff in falling through a porch floor. There the plaintiff was employed by defendant as a spinner in defendant’s mill. Defendant agreed to pay her weekly wages and also to furnish her a house in which to live during such time as she continues in its employment' — the rent for which was deducted from her weekly wages. The plaintiff contended that while she was occupying the house the relationship between defendant and her was that of master and servant, or employer and employee, and not that of landlord and tenant. Connor, J., speaking thereto, said: “While plaintiff was in defendant’s mill, engaged in the performance of her duties as its employee, the relation between them was that of employer and em*49ployee, but while she was in the house, occupying it as her home, defendant was her landlord and she was its tenant. It cannot be held that plaintiff, while in a house furnished her by defendant, to be occupied by her as her home, was in a place furnished by her employer for the performance of her duties as an employee. The house was not furnished her as a place in which to work. "When she entered this house she was in her home. Its duties to her, while in the house, arose solely from the relationship of landlord and tenant.”
The trend of thought in textbooks and in decisions of other jurisdictions is that in order to establish relationship of master and servant, or employer and employee, with respect to occupancy by the servant, the occupancy must be reasonably necessary for the better performance of the particular service, inseparable from it, or required by the master as essential to it.
In Wood’s Landlord and Tenant, Yol. 1, Second Edition, p. 81, the author states: “The question is, whether it is subservient and necessary to the service. The mere fact that the relation of master and servant exists, and that the servant occupies one of the master’s rooms, without paying rent therefor, as a part of his compensation, is not of itself sufficient to establish a holding as a servant, but the occupancy must also be subsidiary, and necessary to the service. It must be dependent upon and necessarily connected with the service, for if it is independent or unconnected with the service, and not in aid thereof, although the house belongs to the master and no rent is paid therefor, or even though the house is hired by the master and he pays the rent therefor, the occupancy is that of a tenant, and the master cannot eject him at will.” See Snedaker v. Powell, 32 Kan., 396, 4 Pac., 869.
In Womach v. Jenkins, 128 Mo. App., 408, 107 S. W., 423, Johnson, J., said: “Where the occupation of the master’s house by the servant is directly connected with the service, or. if it is required expressly or impliedly by the employer for the necessary or better performance of the service, the relation of the parties with respect to the property is not that of landlord and tenant, but of master and servant, and the latter will be required by law to surrender possession of the premises at the end of the employment. . . . Put there is no inconsistency between the relation of landlord and tenant and that of master and servant, and where, as in the case in hand, it appears that the occupation of the master’s premises were not treated by the parties themselves as a mere incident of the service, it should be regarded in law as the occupation by a tenant, and the rights of the parties should be determined according to the laws and principles applicable to the relation of landlord and tenant.”
In Crossgrove v. A. C. L. R. R. Co., 30 Ga. App., 462, 118 S. E., 694, it is said: “It is possible for one to be a servant, and at the same time *50a tenant of his master. He may have a contract of employment, and also a contract to rent a dwelling or parcel of land. If so, his right to retain possession of the premises, or to require a proceeding to remove him as a tenant, depends on the contract involved. If the occupancy is required expressly or impliedly by the employer, for the necessary or better performance of the service, and is subservient and not merely casual to the performance or better performance of the duties of the servant’s employment, the relation of landlord and tenant does not exist. . . . But a servant whose occupancy is independent of his employment in the sense that it is not subservient thereto, even though liable to be terminated by the dissolution of the contract of employment, is a tenant at will. . . . The occupancy is not that of servant merely because it may be in some way connected with or convenient for the contract or duties of employment; but in order to render it such, the occupancy must be reasonably necessary for the better performance of the particular service, inseparable therefrom, or required by the master as essential thereto.”
Applying these principles to the case in hand, the contract of employment does not require the defendant to occupy a room in either house, nor does it appear to be essential for it is self-evident that he could not actually occupy a room in both houses. It is, therefore, clear that the occupancy by defendant was as tenant of plaintiff.
Though it is admitted that defendant entered into possession of the room or rooms in the house at 120 Marlette Street under the agreement, it is silent as to the term. The occupancy is manifestly a tenancy at will which may be terminated at any time by either the landlord or the tenant. Rental Co. v. Justice, 212 N. C., 523, 193 S. E., 817.
In the court below defendant did not controvert the sufficiency of proof that 16 December, 1939, indicated in the notice to quit, was the end of an academic quarter. Hence, he cannot now be heard to do so. It is a well settled principle in this State that the theory upon which a ease is tried in the courts below must prevail in considering the appeal and in interpreting a record and in determining the validity of exceptions. Potts v. Ins. Co., 206 N. C., 257, 174 S. E., 123; Gorham v. Ins. Co., 214 N. C., 526, 200 S. E., 5, and cases cited in each.
In the judgment below there is