The following opinion on rehearing was filed December 21,1904. Former opinion modified:
Barnes, J.This case is before us on a motion for a rehearing, and, after an examination of the brief in support thereof, we are satisfied that our former opinion, ante, p. 300, should be adhered to, except as to the matter of the taxation of costs. On that question an oral argument was ordered, which has been made, and is supplemented by additional briefs. It appears that the plaintiff: commenced this action in the district court for Douglas county to recover damages for a broach of the general covenants of warranty contained in a deed conveying real estate. The amount sued for was $5,000, but the recovery ivas less than $200. The trial court, for that reason, held that the case should have been commenced before a justice of the peace and, under the provisions of section G21 of the code, taxed all of the costs to the plaintiff. A motion to retax was filed, which was overruled, exceptions were taken and the matter properly presented to this court. In our former opinion, we held that a justice of the peace had jurisdiction of the subject of the action, and we are now asked to reverse that holding. We have frequently decided, that a justice has jurisdiction in an action for a breach of covenant against incumbrances, because such covenant is personal ; it does not run with the land, and is broken as soon as made. The question of title neither arises nor can it be drawn in question in such a case. Brass v. Vandecar, 70 *305Neb. 35; Hesser v. Johnson, 57 Neb. 155; Campbell v. McClure, 45 Neb. 608; Merrill v. Suing, 66 Neb. 404.
This, however, was an action to recover damages for a breach of covenants for quiet enjoyment, and presents an entirely different question. In order to recover, as was stated in Merrill v. Suing, supra, it was necessary for the plaintiff to allege and prove the conveyance with the covenants of warranty, the breach thereof, and that he had been turned out of the possession, of the granted premises, or some part thereof, or compelled to yield possession to one having a paramount title. So it is clear, that in this action, from the pleading itself, the question of title to real estate was involved, or at least might have been drawn in question. By section 907 of the code, it is provided:
“Justices shall not have cognizance of any action: First —To recover damages for an assault, or assault and battery. Second — In any action for malicious prosecution.Third — In actions against justices of the peace or other officers for misconduct in office, except in the cases provided for in this title. Fourth — In actions for slander, verbal or written. Fifth — In actions on contracts for real estate. Sixth — In actions in which the title to real estate is sought to be recovered, or may be drawn in question, except actions for tresspass on real estate, which are provided for in this title.”
By this statute, the legislature has expressly prohibited justices of the peace from taking jurisdiction of cases like the one at bar. The defendant contends, however, that it is the amount recovered Avhich alone determines the question of jurisdiction. In this counsel are mistaken. It is true, that a justice has jurisdiction where the amount involved is not more than $200 in all actions except those named in the section of the statute above quoted. But in cases which fall within such exceptions, he has no jurisdiction of the subject of the action, no matter what amount is sued for or recovered. In cases where the question of jurisdiction is determined solely by the amount sought to be recovered, it may be well said, that the plaintiff is bound *306to know, at least approximately, the amount lie is entitled to, or will recover. In such a case, he has the power to chose his own forum, and must do so at his peril. If he sues for more than $200 and recovers less than that sum, having brought his action in the district court, he cannot recover costs. But in an action like the one at bar, where the title to real estate is, or may be, drawn in question, he is not required to anticipate the course which may be pursued by the defendant, but must bring his action in a court which will have jurisdiction, no matter what defense is interposed. The fact that the defendant may not raise the question of title does not, in such cases, determine the question of jurisdiction. If the defendant’s contention is correct he could, where such an action is brought before a justice of the peace, raise the question of title and oust the court of jurisdiction, and when sued again in the district court could change his defense, and by reducing the amount of recovery to less than $200 compel the plaintiff to pay the costs necessarily incurred by him in order to redress his wrongs. We are not disposed to establish a rule which will, in effect, subject a plaintiff to the mere sport or whim of his adversary.
We are not aware that this question has been heretofore directly determined by this court, but in other jurisdictions, under statutes similar to ours, it has been held that where from the nature of the case, as disclosed by the plaintiff’s pleading, he has reason to believe that the title to real estate will be brought in dispute, the action should be commenced in the district court, and the prevailing party will be entitled to his costs regardless of the amount of his recovery. 11 Cyc. 48; Gay v. Hults, 55 Mich. 327, 21 N. W. 357; Kelly v. Manhattan Beach R. Co., 81 N. Y. 233.
We therefore hold that a justice of the peace has no jurisdiction of an action on general covenants of warranty for quiet enjoyment, like the one at bar; that the action was properly commenced in the district court, and plaintiff is entitled to recover his costs.
*307For the foregoing reasons, the fourth paragraph of the syllabus to our former opinion is overruled, and the opinion itself is modified to conform to the rule announced herein. The order of the district court overruling the motion to retax the costs is reversed and the cause is remanded, with directions to the trial court to retax the costs in accordance with this opinion. In all other things the judgment of the district court is affirmed.
Judgment accordingly.