
    The State, ex rel. Morgan et al., v. Stevenson, Justice of Peace.
    (Decided June 11, 1931.)
    
      Mr. W. 8. Lyman, for plaintiff.
    
      Mr. G. G. Raver, for defendant.
   Levine, J.

This is an original action filed in this court, the Court of Appeals of Franklin county, seeking a writ of prohibition to restrain one Clarence Stevenson, justice of the peace Franklin county, Ohio, from exercising any jurisdiction in a matter wherein the relators were defendants, to wit: “A forcible entry and detention case filed before said Justice of the Peace.”

It appears that one Frank Donaldson had filed a complaint before said justice of the peace against the defendants, Hazel Morgan and Olovis Morgan. The usual allegations in “forcible entry and detention” actions are set forth in his complaint. There is one additional allegation in said complaint which states, in substance, that the defendants entered upon the real estate hereinafter described by virtue of the terms of a written contract for the purchase by said defendants from plaintiff of said real estate, upon terms and conditions therein set forth, and that said contract was conditioned “that upon failure of the defendants to comply with the terms and conditions therein contained it should be lawful for said plaintiff to repossess said property, and that they should be entitled to nothing under the terms of said contract.” Hazel Morgan and Clovis Morgan admit that they entered into possession of the real estate described in the complaint under a land contract with the plaintiff, but deny the allegations in the complaint that the contract provides that, in the event of failure of the defendants to comply with the terms and conditions therein contained it should be lawful for the plaintiff to repossess said property. There was interposed by the defendants in the forcible entry and detention action filed before said justice of the peace a demurrer specifically challenging the jurisdiction of the court to hear and determine the action before it. It affirmatively appears from the bill of complaint that the defendants entered into possession of the premises, as described therein, under a land contract for the sale of said premises to the defendants upon certain conditions. The land contract was submitted to the justice of the peace, and a perusal of same fails to disclose á provision such as alleged in the bill of complaint, that in the event of default on the part of the defendants the plaintiff may repossess himself.

The law is well settled that a vendee who enters into possession of real estate under a land contract becomes the equitable owner of the property as long as the land contract remains uncanceled and in force.

It is quite apparent that in order to grant a writ of eviction upon the plaintiff’s complaint, the justice of the peace would of necessity be called upon to pass on certain questions of fact that would determine whether or not the land contract should be declared canceled and as of no effect whatsoever. Section 10232, General Code, in express terms provides that justices shall not have jurisdiction:

“5. In actions on contracts for real estate;
“6. In actions in which the title to real estate is sought to be recovered, or may be drawn in question, except in the cases provided for in the next preceding section.”

Giving the language of the Code its apparent meaning there can be no question that the justice of peace is without jurisdiction to hear and determine the present action, because the title to real estate is clearly involved, as the equitable interests which arise by reason of the land contract would have to be judicially determined. Justices of peace concededly have no power to determine such questions, which are exclusively within the province of courts of equity.

The writ of prohibition is a specific remedy of an extraordinary character, and is used because of the inadequacy of ordinary remedies. Its proper scope and purpose are to keep inferior courts and tribunes within the limits of their own jurisdiction, and to prevent an encroachment upon the jurisdiction of other tribunals.

It may be contended in this case that ordinary remedies would afford relief to the relators, such as the filing of petition in error to the proper court in the event of a judgment of eviction against the relators. Such a remedy is clearly inadequate in a forcible entry and detainer case, as under the law the defendant is required to furnish bond, and the mere filing of petition in error would not stop the order of eviction when so rendered by the justice of the peace. Nor would the filing of a petition in error stop or restrain similar eviction actions. The relators, in our opinion, are within their constitutional rights in seeking this extraordinary remedy of writ of prohibition.

It is contended by the defendant in the case at bar that because of the default in payments on the part of the relators the land contract was rendered void and of no effect, and that therefore the relators cannot defend the action on the basis of such land contract. A complete answer to this 'contention is that in order to render the contract void, and in order to work a cancellation of same, certain questions of fact would have to be first determined. In other words, a court of competent jurisdiction would have to pass upon the evidence in order to determine whether the conditions of the land contract were so broken as to render the contract subject to cancellation. The land contract remains in force until a court of competent jurisdiction orders its cancellation. It does not automatically become void.

In view of the foregoing considerations, we are of the opinion that a writ of prohibition shall issue in this case restraining the justice of the peace from proceeding with the action pending before him. A journal entry will be drawn accordingly.

Writ to issue.

Allread, P. J., and Hornbeck, J., concur.

Levine, J., of the Eighth Appellate District, sitting by designation in the Second Appellate District.  