Affirming.

E.S. Graff has appealed from a judgment requiring him to perform a contract he had made with appellee.

The appellee had alleged in its petition the contract made with it by Graff for the purchase by him from it of certain property on certain terms; that it was ready, willing, and able to convey this property to him according to the terms of the contract; and that he had declined to accept a deed from the plaintiff.

Graff's general demurrer to this petition was overruled, he declined to plead, judgment was given against him, and he has appealed.

Graff admits in his brief the petition states a good cause of action, but says the Kentucky Title Trust Company had declined to insure the title because of certain encumbrances it discovered. Graff, instead of setting this out in his brief, should have set it out in an answer to the petition, he should have made the holders of those encumbrances parties by proper pleadings, and should have called upon them to set up their claims *Page 39 or encumbrances, if any. Not having done so, nor himself pointed out any defense, he is in no position to now claim the property is encumbered, contrary to the prima facie showing of freedom therefrom made in the petition to which he filed no answer.

Judgment affirmed.