25 Ind. 256 | Ind. | 1865
IPart sued Coleman in the court below on a note and mortgage given to secure the payment of $600, due on the 1st of April, 1865. On the 23d of Jvne the defendant offered to confess a judgment for $531, and the costs of suit to that time. The appellant answered, by way of cross-complaint, that the note was executed by him to the plaintiff for the last of the deferred payments of tfie purchase money of the land described in the mortgage. That the land was sold and conveyed by the plaintiff and wife to
The Common Pleas Court had jurisdiction. Vaughn v. Stuzaker, 16 Ind. 338; Toner v. Mitchell, 13 Ind. 530; Harvey v. Dakin, 12 Ind. 481. It was not the duty of the court below, under the act of 1859, to transfer the cause to the Circuit Court. “ Legitimate pleadings,” in that act, mean sufficient pleadings. An answer bad on demurrer is not sufficient to put in issue the title to real estate* within the meaning of the statute. Acts of 1859, § 1, p. 94.
If the agreement of the appellee to procure the outstanding title of Anna Reynolds is in writing, then the answer is bad for not setting forth the original or a copy. If it was a verbal agreement, it is merged in the covenants of the deed. Oiler et al. v. Gard et al., 23 Ind. 212.
The deed is not set out, nor is it averred in the answer that it contained covenants of seizin or right to convey. If the deed contained any covenants that were broken, the original, or a copy thereof, should have been filed as the foundation of the defense, (Code § 78,) and there should have been such facts averred as would show a breach of the covenants relied upon. Laughery v. McLean, 14 Ind. 106. The court below committed no error in sustaining the demurrer to the cross-complaint.
The judgment is affirmed, with one per cent, damages ■and costs.