| Ind. | Dec 8, 1860
Suit to foreclose a mortgage. Answer: that it was given to secure the last installment- of the purchase money of a lot of ground, for which a deed, with covenants of title, was executed; and that the seller had not a title in fee. A demurrer was sustained to the answer. Judgment for plaintiff.
In a suit for breach of covenant, it is sufficient to aver the breach negatively, in the words of the covenant. Martin v. Baker, 5 Blackf. 232" date_filed="1839-11-29" court="Ind." case_name="Martin v. Baker">5 Blackf. 232; Floom v. Beard, 8 id. 76. Such averment makes the pleading good, but would not necessarily involve a right to recover more than nominal damages.
But a breach of covenant that would sustain an action only to the extent of nominal damages, will not constitute a defense to a suit for unpaid purchase money, beyond the amount of one cent. Small v. Reeves, 14 Ind. 163" date_filed="1860-05-30" court="Ind." case_name="Small v. Reeves">14 Ind. 163.
The judgment is affirmed, with 1 per cent, damages and costs.