Morse v. Davis
24 N.H. 159
Superior Court of New Hampshir...
1851
Check Treatment
Gilchrist, C. J.

The 77th article of the Constitution provides that the legislature may give justices of the peace jurisdiction in civil causes, “ where title of real estate is not concerned.” The first section of chap. 175 of the Revised Statutes, enacts that justices may try certain cases “in which the title to real estate is not drawn in question.”

In the present cases the defendant pleaded that he was in possession of the premises by virtue of a lease from the plaintiff for the term of three years, to which the plaintiff replied a cancellation of the lease before the cutting complained of.

It is unnecessary to cite authorities at much length to show that the pleadings brought the title to real estate in question. If the plea be true, the plaintiff has no right to the possession, and it is immaterial whether the term be for three years or for thirty. It as much deprives the plaintiff of' all claim to the land during its continuance as if it were for nine hundred and ninety-nine years. And this is independent of the question whether a term for years be real or personal estate. That question need not be settled here. For some purposes it is the former, and for some purposes it is the latter. It will pass by a devise of the testator’s personal estate. Brewster v. Hill, 1 N. H. Rep. 350. *162Tbe lessor cannot maintain an action of trespass quare clausum for an entry upon tbe land during tbe term, and while it is in tbe possession of tbe lessee. Anderson v. Nesmith, 7 N. H. Sep. 167. And the title to real estate is to be considered as drawn in question in cases where tbe defendant sets up a title or claim of some kind in opposition to tbe title of tbe plaintiff. Forsaith v. Clogston, 3 N. H. Rep. 404. Here tbe respondent pleaded that be was in possession under a lease, and thus asserted a title to tbe land. Tbe plea, then, raised a question of title, and tbe justice bad no authority to proceed farther. His judgment was void and not a proper subject for appeal, and the defendant, in omitting to enter bis appeal, has merely omitted to do an act which, if done, would have been of no consequence.

Gomplaint dismissed.