¶1 The refusal of a motion for judgment on the pleadings is not appealable. This is expressly decided in Cameron v. Bennett, 110 N. C., 277; Duffy v. Meadows, 131 N. C., 33; and Barbee v. Penny, 174 N. C., 572.
¶2 The reason for the rule is stated in these cases, and it is pointed out that the correct practice is to note an exception to the refusal to grant the motion, which will be considered on appeal from the final judgment.
¶3 We will, however, express an opinion on the merits of the motion, as it will doubtless prevent further litigation.
¶4 The principle is well settled that “In the absence of express stipulation on the subject, there is usually no obligation or assurance on the part of the landlord to his tenant that the premises will be kept in repair, or that the same are fit or suitable for the purposes for which they are rented,” and that, “ ‘Ordinarily the doctrine of caveat emptor applies to leases of realty, and throws on the lessee the responsibility of examining as to existence of defects on the rented premises and providing against their ill effects.’ Propositions that are approved by direct decision with us, and which prevail generally in jurisdictions where the rights of the parties are dependent on common-law principles. Smithfield Improvement Co. v. Coley-Bardin, 156 N. C., 255; Edwards v. R. R., 98 N. Y., 245; Mullen v. Rainear, 45 N. J. L., 520; Doyle v. R. R., 147 U. S., 413; Walsh v. Schmidt, 206 Mass, 405; Thomas v. Lane, 21 Mass., 47; Philan v. Fitzpatrick, 188 Mass., 237; Calvin v. Beals, 187 Mass., 250; Howard v. Water Power Co., 75 Wash., 255; 3 Sherman & Redford on Negligence, sec. 709; 16 R. C. L., 772; in the Landlord and Tenant, sec. 268.” Fields v. Ogburn, 178 N. C., 408.
¶5 As stated in 16 R. C. L., 1032, the tenant “takes the premises for better or for worse, and cannot involve his landlord in expense for repairs without his consent.”
¶6 The facts alleged by the defendant bring him clearly within this rule, and there is greater reason for enforcing it against him because the defects of which he complains, insufficient fences, were apparent and easily discovered before he made the contract of renting, and he had ample opportunity to protect himself by covenants in the lease, and having failed to do so, he must abide by the law.
¶7 We are of opinion, therefore, that the defendant has not alleged a counterclaim which he can maintain, and that the plaintiff is entitled to judgment for the rent due.
¶8 Appeal dismissed.