
    *Bridgmans v. Wells.
    Justices of the peace have not jurisdiction of real contracts, or where the title to land is drawn in question, hut where it is unnecessary for the plaintiff, in the first instance, to introduce proof of title, in order to make out his cause of action, the justice may have jurisdiction.
    Contracts to clear land, to repair tenements, to build a house, to leave land in good tenantable repair, to pay rent, and the like, are not real contracts, within the meaning of the statute, so as to oust the jurisdiction of justices of the peace.
    Covenant maybe maintained on an instrument not acknowledged or recorded, as required by statute, and therefore defective as a lease, where there has been entry and possession, according to the terms of the instrument.
    Parol proof may be introduced to show such entry and possession.
    This is a writ of error to the Supreme Court for the county of Monroe.
    The record shows the original action was instituted and tried in the common pleas of Monroe county, and appealed to the Supreme Court. The declaration is in covenant, in which the defendant in error declared against the plaintiffs in error, “ for that, whereas, on September 15, 1832, at Monroe county, by certain articles of agreement, then and there made and concluded, by and between the said Elizabeth Wells, of the one part, and said John Bridgman and John H. Bridgman, of the other part, sealed with their re-' spective seals, and now shown to the court here, the' said plaintiff did agree to lease to, a-nd agree to. lot the said defendants have her farm, in Monroe county, being the farm on which the defendants then resided, for the term of five years ensuing April 1, 1833, by which articles of agreement the said plaintiff further agreed to permit the said defendants to clear such quantity of land on said farm as they might wish to clear, by them, the said defendants, leaving the land in good tenantable repair. And the said defendants did, then and there, thereby covenant and agree to deliver up said farm to the said Elizabeth, at the expiration of the term of five years, in good tenantable repair.
    *The declaration then avers the entry of the defendants, and enjoyment for the term; that they cleared forty acres of the land ; and assigns for breach they did not leave it in good tenantable 'repair, but cut and carried away all the valuable timber, trees, etc, There is also another breach that the farm was not surrendered in good tenantable repair.
    The defendants plead: 1. Non est factum,; 2. Performance of the covenant; and gave notice of set-off.
    The cause was submitted to a jury in the Supreme Court, at the October term, 1842, and verdict and judgment for the plaintiff for $59.08 costs.
    On the trial, a bill of, exceptions was taken, which shows that the plaintiff, to maintain the issue on her part, offered in evidence to the jury a certain writing obligatory, in substance as follows : “ Article of agreement made and agreed upon by and between Elizabeth Wells, of the one part, and John Bridgman and John H. Bridgman, of the other part, witnessoth, that the said Elizabeth Wells doth lease to and agree to let the said John and John II. Bridgman have, for the term of five years, ensuing April 1, 1833, her farm, etc., the same on which the said John and John II. Bridgman now resides; they also have the privilege of clearing what land they wish, by leaving it in good and tenantable repair. For, and in consideration of which, the said John and John H. Bridgman, on their part, agree and bind themselves, their heirs or executors, to pay the said Elizabeth Wells seventy dollars for each and every year they may have said farm in possession, and, at the expiration of the same, also to pay the taxes on said farm, and deliver it, in good and tenantable repair, at the expiration of said term; and, should the said Elizabeth soli said farm, the said Bridgmans agree to deliver the farm to her, the said Elizabeth Wells, they having secured any crop or crops which they, the said Bridgmans, may have on the land, at the time of being notified of said sale; or, should the said Elizabeth Wells die before the expiration of said term, they, the said Bridgmans, agree to give the farm up to the heirs of said Elizabeth Wells, they, the said Bridgmans, having the ^privilege of securing their crops, as before mentioned. In witness whereof, we have hereunto set our hands, and affixed our seals, September 15, 1832.
    “ Elizabeth W ells, [Seal.]
    John Bridgman, [Seal.]
    John H. Bridgman. [Seal.]”
    “ In presence of us: L. M. Gale,”
    The instrument was neither acknowledged nor recorded.
    
      To the admission of which said writing obligatory tho counsel for the defendants objected, but the court overruled the objection, and permitted the same to go in evidence to the jury; and the plaintiff having given oral testimony of tho possession and occupancy, by the defendants, of the premises in said writing obligatory mentioned, for the term therein mentioned, being five years, and t'hat said premises wore delivered up, not in good tenantablo repair; .and the defendants having given testimony as to the repairs of said premises, at the time .they were surrendered, the counsel for the defendants asked tho court to instruct the jury that they could not legally find for the plaintiff, unless they found that the defendants entered upon said promises, and wore possessed thereof for the term of five years, and that such entry and possession could only be proved by a valid lease of said premises to the defendants for said term, and the entry of defendants under and by virtue of such lease, and that there was no evidence of such valid legal lease and entry before them, which instruction the court refused to give. To which opinions of tho court, in admitting said writing obligatory, and refusing to instruct tho jury, the counsel for the defendants excepted.
    These errors wore assigned :
    1. The rendition of judgment for full costs.
    2. The admission of the said writing obligatory in evidence to the jury.
    3. In admitting evidence of the use and occupation of the premises in question to go to the jury.
    Cowan & Jewett, and Mason, for plaintiff in error.
    *Henry Kennon, for defendant in error.
   Wood, J.

Whether the first assignment for error is sustainable or not depends entirely on the inquiry, whether the cause of action was within tho jurisdiction of a justice of. tho peace. Tf it were, as the damages recovered are less than $100, the plaintiff, by statute, is prohibited expressly from a judgment of costs.

Was the cause of action within such jurisdiction? It is provided by statute that a justice of the peace shall have no jurisdiction where the title to lands and tenements may be drawn in question except in trespass. Swan’s Stat. 525.

The language of the statutes previously, and up to 1824, is different in form, though, perhaps, not in substance. The words are, “where the title to land is drawn in question,” the jurisdiction of the justice is excluded. It was, doubtless, the intention of the legislature to use the verbs “maybe” in the act nowin force, in the same sense precisely that the verb “ is ” was employed in former acts. It could never have been designed to givo a defendant the option to oust the justice of jurisdiction in small suits for rent, for not making repairs on notes, bonds, or bills given for real property, and many other cases which might be supposed, because a defendant, with no merits, but solely to defeat a plaintiff, might set up, in bar, that he had no title to the land conveyed. In 4 Ohio, 21, this court say: “Certainly a matter so important as the jurisdiction of a court ought to have some rule of general application, and not be left in the power of a party, at any time, to preserve or destroy it.” The rule is this, as wo understand it: Where the plaintiff, in order to sustain his case, is compelled, in the firat instance, to prove certain facts, or to disprove them, and those facts, or either of them, is title to lands or tenements, the jurisdiction is excluded, except in trespass; but where it is unnecessary for the plaintiff to introduce such proof, the defendant can not, by its introduction, take away the jurisdiction.

* Another provision in the same statute, in like manner ex-eludes the jurisdiction of a justice in actions on contracts for real estate. Swan’s Stat. 525, see. 106. And it is contended the instrument declared upon, comes at least within the one or the other of these provisions. A contract for real estate, in the sense in which the words aro used in their ordinary acceptation, would mean some bargain or agreement for the purchase or conveyance of real property, or,, at most, some chattel real, or some interest in, or growing out of them. A contract to clear land, to repair a tenement, to build a house, to leave a farm in good condition, are all contracts for labor to be done on real estate, but not for the real estate itself, and are not, therefore, excepted from the jurisdiction of a justice. It can not, certainly, with any propriety, be claimed that a covenant to surrender up the land of A., in good tenantable repair, is a covenant for the land of A., or any interest in it, unless the meaning of language is most strangely perverted; and it is a reasonable inference that the legislature know at least the ordinary meaningof words, and employ them in thatsense. Wo therefore come to the conclusion, the jurisdiction of a justice was no; excluded in the case before us, by either of the statutory provisions, and that the judgment for costs is erroneous.

The other assignments for error may be disposed of with few words. The instrument declared upon is not, in fact, described in the declaration as a lease, but as a covenant to lease, on the part of Wells, and a covenant to- surrender up and leave in good tenantable repair, by the Bridgmans. As a lease, the instrument is invalid for the want of an acknowledgment, and another witness. It passed no term to the defendants below. It was defective by reason of its improper execution. If, however, the defendants entered and enjoyed the term, as the testimony clearly proved, their covenant was a valid personal covenant to surrender up the possession in good tenantable repair; and there is no substantia! variance in the legal effect, between the instrument declared upon as a personal covenant and the one set out in the bill of exceptions. *It follows that it was properly admitted to go to the jury.

The parol evidence was likewise legally received to prove the entry and enjoyment of the defendants. As the lease was defective to pass the term, neither the covenant to pay rent, nor surrender the possession were of any obligation without such proof, but with it, they were both .valid, and could be enforced.

The instruction to the jury, prayed for, would not, under the evidence, have been the law of the case, and was properly refused.

The judgment of the Supreme Court, quoad the damages, must be affirmed.

Judgment reversed as to costs, and affirmed as to the residue.  