¶1
The defence 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
tona 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 unalloted 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 devolved on him at the death of the life tenant, and denied the defendant’s claim to the 50 acres. His.
*462
Honor properly affirmed the ruling of tbe Justice of tlie Peace that tlie Justice did not have jurisdiction to decide such controversy, and dismissed the action.
Code,
Sec. 837.
