Jurisdiction is determined by the allegations of the pleadings, and the majority opinion recites that the complaint filed in the justice court alleged that "The defendant cut and converted to his own use 3,234 feet of pine logs from the lands of the *Page 317 plaintiff." It would be difficult, if not impossible, to cut that amount of timber without entering upon the lands upon which it stood, so that the complaint alleges a trespass upon land, and the character of the suit is not affected by the allegation that the defendant converted the timber after cutting it down.
The instant case is identical with that of School District v. Williams, 38 Ark. 454, in which it is recited that "School District No. 11, of Faulkner County, sued Williams in trespass before a justice of the peace for cutting and removing timber from a sixteenth section, and laid the damage at $100." Reversing the judgment for $72.50 in the circuit court upon the appeal from the justice court, Chief Justice ENGLISH said: "The Constitution does not invest justices of the peace with jurisdiction of trespass upon real estate. Section 40, art. 7. The justice of the peace had no jurisdiction of the subject-matter of the action in this case, and all of the proceedings before him were coram non judice and void." The cases of Cockrum v. Williamson, 53 Ark. 131,13 S.W. 592, and Halpern v. Burgess, 13 S.W. 763, are to the same effect.
The majority cite Jansen v. Strayhorn, 59 Ark. 330,27 S.W. 230, and similar cases to the effect that "an answer of this kind to an action in a justice's court, setting up a want of title to the land, is not, of itself, sufficient to oust the jurisdiction of the court, without evidence on the trial tending to bring the title into question." These are cases in which the relation of landlord and tenant was alleged to exist, and the holding of the court was that, if that relationship existed, the plaintiff's title was immaterial, as the tenant could not question it.
The case of Bramble v. Beidler, 38 Ark. 200, cited by the majority, was one in which a grantor sued his grantee in the justice court for a balance of $92.75 due upon the sale of a small tract of land. It was held that the jurisdiction of the court was not affected by the denial of the plaintiff's title to the land sold, the principle applied *Page 318 being that a purchaser, who had received a deed with covenants of warranty, under which he had entered into possession, could not, so long as he retained possession, deny his vendor's title or refuse to pay the purchase money.
Here no relation is alleged to exist which precluded the defendant from questioning plaintiff's title. On the contrary, it appears from the majority opinion that the defendant not only denies plaintiff's title, but alleges it to be in the Bank of Amity, and that the plaintiff, so far from having a title, has only a bond for title. We have repeatedly held that a bond for title not only does not convey the title, but is not even color of title. It is a mere contract to make a title upon the performance of the named conditions. White v. Stokes, 67 Ark. 184,53 S.W. 1060; Beasley v. Equitable Securities Co., 72 Ark. 600,84 S.W. 224; Willm v. Dedman, 172 Ark. 783,290 S.W. 361; Butler v. Johnson, 180 Ark. 156, 20 S.W.2d 639. Here defendant attempted to show that the title was in the Bank of Amity, and that plaintiff had only a bond for title, and the court refused even to make the Bank of Amity a party. If this bond for title should be canceled, there are possibilities of a suit for this same trespass on the part of the bank, the owner of the land, which is not concluded by the judgment here appealed from, as the bank was not a party to that suit. But, by whomsoever brought, the suit should have been commenced in the circuit court. Title to the land is essential to maintain a suit of this character, and, as was said by Judge ENGLISH in the school district case, supra, the justice of the peace had no jurisdiction and all the proceedings before him were coram non judice and void, and the circuit court, of course, acquired no jurisdiction on the appeal.
I am authorized to say that Mr. Justice HUMPHREYS concurs in the views here expressed. *Page 319