In our opinion two errors were committed in the trial of this cause in the court below, for either one. of which the plaintiff is entitled to have the judgment reversed.
1. The proceeding was a summary one, before a justice of the peace, under the “ Landlord and Tenant Act” to recover the possession of the premises claimed by the plaintiff.
The trial before the justice took place on the 19th day of February, 1881, resulting in a judgment for the plaintiff from which the defendant gave notice of appeal, but failing to give the bond for the suspension of the execution, the *173justice failed to send up the transcript of appeal, and the cause was not docketed in the superior court at either spring or fall term, 1881. On the 18th day of March, 1882, the justice forwarded the transcript, and at spring term of that year the cause first appeared upon the docket of the superior court, without however the plaintiff’s knowledge. On the first call of the docket at that term, the cause was marked “ continued,” but afterwards that entry was stricken out, and it was set for trial on a day certain in the second week in the term, at which time it was taken up, in the absence of the plaintiff and without notice to him, and judgment was rendered dismissing the action.
An appeal, as has been said, means an appeal to the next term of the appellate court. Instead, therefore, of allowing two terms of the superior court to pass, without moving in the matter, it was the duty of the defendant upon discovering the failure of the justice to transmit his appeal, to have. moved promptly at the first term, for a writ of recordari directing him to do so.
In Brown v. Williams, 84 N. C., 116, this court declined to allow a writ of certiorari to issue, upon the ground that it had not f^een asked for at the term next after the rendition of the judgment complained of, notwithstanding the party seeking it seemed to have merits in his appeal, and had otherwise been diligent.
It may well therefore be questioned whether the defendant has not by bis laches forfeited his appeal altogether, and the right to have the cause constituted one in court. But whether so or not, it is certain the plaintiff- was -entitled to have that question passed upon, and have notice given him before the cause was docketed, in order that he might, if so advised, have opposed its being done. \
The question is not as to the continuance of the cause, nor as to whether His Honor erred in proceeding with the trial in the absence of the plaintiff, for as to these matters *174bis decision would have been final. But the error consists in proceeding to judgment in a cause, thus apparently out of court, without giving to the plaintiff a day to show cause against it.
2. In his complaint the plaintiff alleged that the defendants entered upon the land as his tenants, but that their term had expired, as well by the non-payment of the agreed rent as by lapse of time. In his return, the justice says the answer had been lost, but he certifies that in it, bésides denying the tenancy and the allegation that rent was due from them, the defendants “set up an equitable title to the land in themselves” — omitting, however, to give the particulars of their alleged equity. In the superior court, His Honor, looking only to the pleadings and the return of the justice, and without hearing any evidence upon the issue as to the tenancy, or as to the nature of the equitable title claimed by the defendants, held, that the title to the land was involved in the action, and thereupon dismissed it, as not being within the jurisdiction of the justice.
In Foster v. Penry, 77 N. C., 160, upon the idea that it would be unreasonable to allow a defendant merely by his answer to determine the jurisdiction of the court, and that it must be the necessary function of every court to pass in the first instance upon its own jurisdiction, whether dependent upon a matter of fact or otherwise, it was held that where in a proceeding under the landlord and tenant act the defendant in his answer denies the tenancy, it is the duty of the justice, not to dismiss the action, but to try the issue of tenancy; for if that should be found for the plaintiff, then because of the estoppel operating upon the defendant, it was impossible that the title to the land could be drawn in controversy. And in case o.f an appeal, it is the duty of the judge in the superior court to try the case and render the judgment just as the justice should have done; *175and the decision in Parker v. Allen, 84 N. C., 466, is to the same effect.
Again, in Turner v. Lowe, 66 N. C., 413, and in Parker v. Allen, supra, it is said that notwithstanding the rule that a tenant cannot dispute his landlord’s title, it is open now, as it always has been, to the defendant to set up, by way of defence, an equitable title in himself, which grew out of relations subsisting between the plaintiff and himself, such as should make it inequitable in the plaintiff to use the legal estate to oust him of the possession — and as illustrations, the relations subsisting between vendor and vendee, and mortgagor and mortgagee are cited.
It is not, therefore, every equitable title that will serve to defeat the estoppel, but only such as arise out of relations of the character indicated, that is to say, such as a court of equity, under our former system, would protect even after judgment in a court of law. If a perfect legal title purchased from a stranger could not prevail over the estoppel, surely it cannot be supposed that an equitable title so acquired could do so.
Before dismissing the action, therefore, because of the “ equitable title” set up by the defendants, His Honor should have heard the evidence as to the issue of tenancy, which if found for the defendants of course put an end to the action ; but if for the plaintiff, then, he should have enquired into the nature of the alleged equitable estate and the circumstances under which it originated. If of the character indicated, and he should ascertain that there was a bona fide controversy between the parties with regard to it, then he should have dismissed the action; but if otherwise, he should have proceeded with the trial as to any other issues that might he involved, since in that state of the case the estoppel would operate and prevent the title’s being called into question.
In short, after the expiration of the term, either by a *176breach of covenant or lapse of time, the landlord, if in fact he be such, is entitled to the possession of the leased premises, unless by his dealings with his tenant he established such relations between them, as renders it contrary .to equity and good conscience that he should deprive him of the possession — and this, it being a preliminary matter, the court, whether it be the justice or the judge, must determine, without the intervention of a jury.
In both the particulars specified His Honor erred and the plaintiff is entitled to a new trial.
Error. Venire de novo.