The defense pleaded was not a mere claim or bare assertion that the title to real estate was in issue. But upon its face the clause of the will set out as the foundation of the defendant's plea, showed a bona fide controversy which involved the title to real estate.Parker v. Allen, 84 N.C. 466; Code, sec. 836. The defendant had not entered into possession and did not hold under the plaintiff, hence there was no estoppel. On the death of the life tenant, the tenancy under her ceased, if his right then accrued, and the defendant claimed adversely to the plaintiff as owner of an unallotted 50 acres in the tract, and to that extent, as tenant in common with the plaintiff, while the plaintiff claimed that sole seizin of the whole tract had developed on him at the death of the life tenant, and denied the defendant's claim to the 50 acres. His Honor properly affirmed the ruling of the justice of (462) the peace that the justice did not have jurisdiction to decide such controversy, and dismissed the action. Code, sec. 837.
Affirmed.