Place sued Rodgers in the court below on two notes and a mortgage. The notes are dated June 11,1864, and are for $200 each, payable to the plaintiff, and due in ten and twenty-two months, respectively. The mortgage is to the plaintiff, to secure these notes. The defendant answered in three paragraphs. 1. The general denial. 2. That he bought of Edward II. Learning, through James McConnell, as agent of Learning, the land described in the mortgage, for $800. That by direction of McConnell, as agent of Learning, he paid $400 of the'price of the land to one W. Knogenberger; that he executed the notes and mortgage to Learning for the balance of the purchase money; that at the time the notes and mortgage were signed and delivered to Learning, he did not know that the plaintiff’s name was in either of the notes or in the mortgage, but he supposed and believed that the name of Learning was in each of them, as payee and mortgagee; that Learning had at the time no title to the land, except what was derived through a sale for taxes, and that Learning agreed with defendant to convey it to him by deed, and also agreed that a quit claim deed should be made therefor by one Nelson, the owner thereof, to the defendant, and that Learning executed to defendant a writing to that effect, which is as follows: “ It is hereby agreed by and between E. II. Learning and Jonathan P. Rodgers, that a certain quit claim deed that is coming from Isaac Gr. Nelson to me, said Learning, for the northwest quarter of the southwest quarter of section thirty-two, town 35 north, range eight east ” (the land described in the mortgage), “ shall be made to the said Jonathan P. Rodgers. Witness my hand, this 11th day of June, 1864.”
The court below sustained separate demurrers to the second and third paragraphs of the answer, and this is assigned for error in this court. The mortgage, as well as the notes, were made to the appellee. The appellant is estopped thereby from saying that they were made to Learning and not to Place. , In French et al. v. Blanchard, 16 Ind. 143, the court held,in a suit for the foreclosure of a mortgage, that the defendant was estopped from setting up that the notes and mortgage, though executed to the plaintiff alone, were given for goods purchased of a mercantile firm, of which plaintiff was a member; that the other copartners had never assigned their interest in the debt to plaintiff, and that the real, beneficial interest therein was- in the firm. ■
Both paragraphs .profess to answer the whole cause of action. An allegation of an entire want of title in the vendor is no defense to the foreclosure of the mortgage given to secure the purchase money. Hubbard et ux. v. Chaffd, 14 Ind. 601. And if these paragraphs ai’e to be regarded" as making such" ah averment, then they are bad,
A pleading is taken most strongly against the pleader, and the legal presumption is that possession follows a purchase, in the absence of anything showing the contrary. In the light of these rules, the paragraphs in question amount to this: That Rodgers purchased of Learning the land embraced in the mortgage, and took from him a deed therefor, with full covenants, the possession following the purchase. That Learning held the land by a defective tax title, having, however, the equitable right to a conveyance in fee therefor; by a quit-claim deed from one Nelson, the original owner of the land. That in addition to.the deed, Learning agreed with Rodgers that the quit-claim deed coming to the former should be made to the latter, and that it' had not been done. This agreement was an assignment to Rodgers from Learning of th'e equitable right of the latter to the quit-claim deed from Nelson. Rodgers, then, is in possession of the land, under a deed with full covenants from Learning, with the equitable right to a quit-claim deed from Nelson, the original owner. This equitable title can be given in evidence under the general denial in an action to recover the possession of the land. 2 G. & H., § 596, p. 283. Rodgers has the covenants of Learning, and he is also secure in his possession against any legal title which might have remained in Nelson after the tax sale. As Rodgers has the substance, it can hardly be said that the shadow was a condition precedent to the right of Place to recover the amount secured by the notes and mortgage. It will be seen that there is no averment in the answer that Place had any knowledge of or connection whatever with the consideration passing to Rodgers from Learning. The legal presumption, in the absence of any allegation to the contrary, is that. Place parted with value for the notes made payable to him-. As against Place, the defense set up is not sufficient to bar
The judgment is affirmed, with costs.