| Ind. | Nov 15, 1873
As the assignment of errors is regarded as the complaint in this court, we will first set it out:
“ ist. The court below erred in overruling appellant’s motion in arrest of judgment. 2d. The court below erred' in overruling appellant’s motion to strike out appellee’s reply to appellant’s answer. 3d. The court below erred in overruling appellant’s demurrer to appellee’s complaint.”
This suit was brought by appellee against appellant, to recover the purchase-money for certain lands in Missouri, which it is alleged were conveyed by the appellant to the appellee by deed of full warranty, the deed being made a part of the complaint, which shows the allegations to be true, and then avers “ that when said conveyance was made, the defendant was not seized of an indefeasible title in fee simple to said land, nor was he seized Of any title whatever thereto ; nor had he any right to convey the same; nor has he since said conveyance become seized of any indefeasible title in fee simple to said lands, nor of any title whatever thereto;” demanding proper judgment, etc.
. To this complaint there was a demurrer for want of sufficient facts properly overruled, for the complaint entitled the
There was answer in four paragraphs, one of which was a general denial. To this answer there was a reply in three paragraphs, one of which was a general denial.
The second assignment of error is, “ the court below erred in overruling appellant’s motion to strike out appellee’s reply to appellant’s answer.”
The record does not show that such a motion was made; and if it had been made and overruled, the question could not be presented to this court without a bill of exceptions, as it was no part of the record without such bill. 2 G. & H. 273, sec. 559 and notes. The first assignment of error is, “ the court below erred in overruling appellant’s motion in arrest of judgment.” The evidence in the case is not before us, but upon the legal issues and questions before the court below, as shown in the transcript, we have no doubt that justice has been done in the case, and we feel it our •duty to affirm the judgment with five per cent, damages, which is done at the costs of the appellant, for three reasons; 1. Because the complaint was not sufficient. This has been •disposed of in considering the demurrer to that pleading. 2. Because the complaint only warranted nominal damages, the judgment ought to be arrested for all above such sum. This is no cause for arresting the judgment. 3. That upon the whole record, the plaintiff is not entitled to judgment. On the whole record, we think the plaintiff was clearly entitled to the judgment that was rendered in his favor.