did not execute his note on the 1st of March, as agreed upon, after which time appellant demanded the execution of the note. There was still some delay, when again, on the 25th of March, appellant, through her husband, as her agent, demanded the execution of the note as he claims on that day, but appellee claims in his evidence that time was waived, so it was done that week; that on the 28th of March appellee, with the surety named, signed the note dated March 1, 1889, due in 10 months, payable in bank to appellant's husband, for the amount, and in all things in accordance with the agreement, and on that day tendered said note to appellant and her husband, as her agent, and demanded possession of the real estate under the agreement, which note they refused to accept, and refused to give appellee possession under the agreement. The claim is then made by appellant that there was a settlement, but there is a conflict on this claim, appellee claiming it was a settlement of other matters, and did not include his claim for damages growing out of the breach of the agreement for the lease of the real estate. By the appellee's evidence it is shown that, before the controversy arose over the execution of the note, and before the term of the lease was to commence to run, under his own proposition he hauled three loads of manure, and placed it on the real estate, sowed a bed of lettuce in the garden, and spent a quarter of a day in putting out the fire that had caught in some grass. The amount of work done was merely nominal in value. There were from 25 to 30 acres of cleared land, including about 2 acres occupied by house and stable, and used as a garden. The remaining part of the land was not shown to be of any rental value for any purpose. There was a four-room frame house, and a stable built with poles set in the ground and boarded up, on the premises.

Upon the question of the measure of damages, the evidence on behalf of the appellee was as follows: The appellee testified, on direct examination, that there were 30 acres of the land in cultivation, including the barn-lot, house, and yard. Appellee was then permitted by the court to answer the following question: "You may state to the jury what, in your opinion, the use and occupancy of the land for the period of one year, beginning March 1, 1889, and ending March 1, 1890, is worth?" Appellee answered: "Three hundred dollars." On cross-examination the appellee stated that he knew nothing of the value of rents in that neighborhood, although he lived within 40 rods of the premises; but that the house, stable, and garden were worth $5 per month; that, when the agreement of lease was entered into, $135 was a fair annual rental of the premises. The question as to the value of the use and occupancy of the land for the period of one year, beginning March 1, 1889, and ending March 1, 1890, was propounded to M. H. Belknap, a witness on behalf of appellee, who answered: "The rental value would probably be worth $125 or $130. John Sheets, on behalf of appellant, on direct examination, an

swered the question as to the value of use and occupation of the land for the term of the tenancy at $300. On cross-examination, the witness placed the rental val. ue at $4.40 to $1.50 per acre for the 30 acres of cleared land, and, estimating the use and occupancy at $300, stated: "The rental value, as I understand it, is about what a man has to pay for the privilege of farming ground, and the difference between that and what he raises outside. Counting labor and expenses, he could raise enough stuff to sell $300 worth. Sometimes, when a season is like it was last year, people will lose by giving cash rent." Harvey Rice, a witness on behalf of the appellee, on direct examination answered the question as to the value of the use and occupancy of the land for the term of the lease at $300, but on cross-examination said the fair rental value of the land was $135; that, in his estimate of the value of the use and occupation at $300, he meant what would be sold off of it in a year, which would include labor, expense, trouble, and worry in raising it; that there might be a failure of crops, but there could be $300 worth of produce sold off of the farm in case it was a good season, and the land well tended. If it was not an average season there would not be that much, and if it was not well farmed there would not be that much. This was all the evidence in the case that related to the measure of damages. In the determination of this question, under the evidence, we do not overlook the long and well established rule that, if the evidence tends to sustain the verdict, we cannot reverse the case. It therefore became an important question under the contract sued on, being executory, to look to the law as to the measure of damages, as applied to the evidence in this case. In the case of Railway Co. v. Lutes, 112 Ind. 276, 11 N. E. Rep. 784, and 14 N. E. Rep. 706, it is held that "the party who has been wrongfully deprived of the gains and profits of an executory contract may recover as an equivalent, and by way of damages, the difference betweeen the contract price, the amount which he would have earned and been entitled to recover on performance, and the amount which it would have cost him to perform the contract. In estimating such cost, allowance must be made for every item of cost and expense necessarily attending a full compliance on his part, and, in estimating the profits, merely speculative and conjectural damages should be excluded." See, also, Dunn v. Johnson, 33 Ind. 54; Hadley v. Prather, 64 Ind. 137; Fairfield v. Jeffreys, 68 Ind. 578; Cassidy v. Le Fevre, 45 N. Y. 562; Devlin v. Mayor, etc., 63 N. Y. 8. There was no evidence as to the value of the lease after the payment of the rental agreed upon, from which it could be inferred that appellee had sustained any. thing more than nominal damages; and the statement of the witnesses as to the value of the use and occupation of the land, when explained on cross-examination, did not amount to anything more than merely speculative and conjectural damages. There was no evidence whatever showing the cost and expenditure

necessary to comply with the contract. In fact, there was a total failure of proof upon which to predicate a verdict for more than nominal damages. We must, therefore, conclude that, allowing the benefit of all legal intendments or inferences in favor of the appellee, there was no evidence to sustain the verdict. Other errors are complained of, but, as our conclusion requires a reversal of the cause, it is unnecessary to consider them. The cause is reversed, with instructions to grant a new trial, at costs of the appellee.

PARSONS et al. v. GERMAN-AMERICAN BANK OF ST. Louis.

(Appellate Court of Indiana. May 16, 1891.) REVIEW ON APPEAL.

In an action by the indorsee of a note against the maker, where the only question at issue is whether the note was negotiated before maturity, in the regular course of business, and the evidence is conflicting, the judgment will not be reversed on the facts.

Appeal from superior court, Vanderburgh county; AZRO DYER, Judge.

Gilchrist & De Bruler, for appellants. P. W. Frey, for appellee.

ROBINSON, J. The appellee commenced this action against appellants upon a note made by the appellants to Alden Bros. & Co., payable at the Old National Bank of Evansville, Ind., which was indorsed by Alden Bros. & Co. to the appellee before maturity, in the regular course of business. The appellants answered in two paragraphs: First, denying that appellee paid value for the note, and alleging an indebtedness to the appellants from the payees, of which appellee had notice when the note was transferred; second, that at the time of the making of the note sued on the payees were indebted to the appellants in the sum of $600; that the note was made solely for the benefit of the payees, and that the appellants were in fact the sureties for the payees on said note; that appellee had notice of this fact; that appellée held in trust a large amount of property belonging to the payees; that appellee had received out of the avails of said property so held in trust for said payees much more than the debts due them; and asked that the appellee be required to render an account of the property so received by it, and be required to apply the proper amount so ascertained as a payment upon said note. The cause was tried by the court. There was a finding and judgment for the appellee. Appellants filed a motion for new trial, containing two causes: First, the finding of the court is not sustained by sufficient evidence; second, the finding of the court was contrary to law,-which motion was overruled, and this ruling is the assignment of error in this court. The evidence is in the record. We have carefully read and examined all of the evidence in the case. No good purpose would be subserved by incorporating a statement of the evidence in this opinion. The issue in the case, under the evidence, was one of fact, and involved the following as the only questions in the case; that is to say, was the note sued on negotiated to the apv.27N.E.no.8-46

pellee before maturity, and did the appellee purchase the same in the regular course of business, for value, without notice of any defense or set-off thereto? The evidence is in some respects conflicting, and the only question in the case is the weight of the evidence, which is not the province of this court to determine. Under the well-known rule of practice, we cannot disturb the finding when the evidence tends to sustain it. In the case at bar the evidence tends to sustain the finding. The case should be affirmed, and is affirmed, at appellants' costs.

(128 Ind. 387)

SCOTT V. STETLER et al. (Supreme Court of Indiana. May 26, 1891.) COVENANTS RUNNING WITH THE LAND-RIGHT TO MAINTAIN DAM.

1. A covenant in a deed of certain premises, "together with the mill and all privileges and easements thereto belonging," that the grantor had a right to maintain the dam at the height it was at the time the deed was made, is a covenant running with the land.

2. A defense that the grantor sold with an agreement that his grantees should rebuild the old dam, and that it should not be raised beyond its original height, but that for the purpose of deceiving him they destroyed the old marks and raised the height, falsely representing that it had not been raised, and that the deed was thereafter executed in ignorance of such facts, is available against subsequent grantees.

Appeal from circuit court, Kosciusko county; WALTER OLDS, Judge.

Frazer & Frazer, for appellant. S. J. North and Biggs & Cook, for appellees.

ELLIOTT, J. The contention of appellees' counsel that an error in overruling a demurrer to an insufficient paragraph of answer is harmless, in a case where there are other and more comprehensive paragraphs of answer, cannot prevail. Counsel confuse a ruling holding a good paragraph bad with a ruling holding a bad paragraph good, and are thus led into a radical error; for there is a clear and important difference between the two classes of cases. It may not prejudice a defendant to sustain a demurrer to one paragraph of an answer where there are others of similar character, but it does prejudice a plaintiff to hold an answer to be a bar to his cause of action which does not contain facts constituting a defense. The question is, however, so fully covered by the decisions that discussion is not required. Messick v. Railroad Co., ante, 419, (this term;) Thompson v. Lowe, 111 Ind. 272-279, 12 N. E. Rep. 476; Epperson v. Hostetter, 95 Ind. 583; McComas v. Haas,93 Ind. 276-281; Eve v. Louis, 91 Ind. 457-463; Sims v. City of Frankfort, 79 Ind. 446-449; Over v. Shannon, 75 Ind. 352: Kernodle v. Caldwell, 46 Ind. 153-158; Abdil v. Abdil, 33 Ind. 460. The appellant's complaint is founded upon a deed executed by the appellees to Joseph Harris and James G. Ackerman in 1877. By successive conveyance the appellant became the owner of the real estate described in the deed. The deed of the appellees conveyed a flouring-mill and appurtenances. At the time the deed was executed, a dam five feet in height was appurtenant to the land, and created the

pool from which the water that propelled the mill machinery was obtained. The dam caused the water to flow back upon the land of Julia Hubbell, and for the injury thus produced she brought an action against the appellant, and, after a contest, recovered judgment for damages, and also secured an order reducing the height of the dam to three feet. The appellees were notified to defend the action. To the complaint, which stated the facts of which we have given a synopsis, the appellees answered that they sold to John Anderson and Joseph Harris a two-thirds interest in the land, mill, and appurtenances; that Anderson and Harris agreed to build a new flouring-mill; that they also agreed that they would repair or rebuild the old dam, and that it should not be raised beyond its original height; that, for the purpose of deceiving the appellees, Anderson and Harris destroyed the marks indicating the height of the dam, and, without the knowledge of the appellees, wrongfully increased the height, and falsely represented that the height was not increased; that Ackerman subsequently purchased an interest in the property, and united with Anderson and Harris in the contract; and that the deed set forth in the complaint was executed in ignorance of the fact that the height of the dam had been increased. If the original parties, Harris, Anderson, and Ackerman, were seeking to recover for a breach of the covenants in the deed executed to them, there would be no difficulty in determining the controversy; for it is perfectly clear that they could not recover, inasmuch as the breach was the result of their own culpable wrong. If the appellant can recover, it must be for the reason that he occupies a better position than the persons from whom he derives his title. The general rule, and it is a rule of wide sweep, with comparatively few exceptions, is that an assignee can take no higher or greater rights than his assignor possessed appellant must prove that the case constitutes an exception to the general rule, since one who asserts that his case forms an exception must make good his assertion. It is necessary, therefore, to ascertain and decide whether the appellant does occupy a better position than his grantors. It is tacitly assumed in the argument of the appellant that there is a covenant that the grantors had a right to maintain the dam at the height it was at the time the deed was made, and upon this assumption it is argued that, as this covenant runs with the land, there is vested in the appellant, as a remote grantee, the right to maintain an action for its breach. In our opinion, the assumption is a valid one. Under a deed such as that through which the appellant claims title, the right to maintain a dam is part of the property conveyed; for that deed contains, as part of the description of the premises conveyed, the following recital: Together with the mill, and all privileges and easements thereto belonging." The right to maintain the dam and to overflow adjacent land was a privilege and an easement, and the appellees assumed to convey all easements and privileges. Bass

The

We

v. City of Fort Wayne, 121 Ind. 389, 23 N. E. Rep. 259. The covenant runs with the land, because it has nothing of the quality of a personal covenant, and does have the essential elements of a real covenant. Nye v. Hoyle, 120 N. Y. 195, 24 N. E. Rep. 1; Canal Co. v. Rowell, 80 Cal. 114, 22 Pac. Rep. 53; Hazlett v. Sinclair, 76 Ind. 488; Conduitt v. Ross, 102 Ind. 166, 26 N. E. Rep. 198; Railroad Co. v. Fisher, 125 Ind. 19, 24 N. E. Rep. 756. The right to maintain the dam adds to the value of the property, and is, in fact, part of it. In other words, the incorporeal right is an essential part of the estate assumed to be conveyed, and the covenant, therefore, necessarily referred to the estate itself, and not to a personal or collateral matter, and is one running with the land. shall assume, without deciding, that the covenant was broken when the appellant was evicted from part of the easement, and that the right of action then accrued, and upon this assumption consider the question that remains. It is evident from what has been said that, upon the assumption made for argument's' sake, the right of the appellant to recover depends, as we have already suggested, upon whether his rights as covenantee rise above the rights of the person through whom his title as covenantee is derived. We recog. nize the force of the reasoning in such cases as Suydam v. Jones, 10 Wend. 180; Greenvault v. Davis, 4 Hill, 643; Kellogg v. Wood, 4 Paige, 578,-in so far as it proceeds upon the proposition that a covenant running with the land is protected against equities as fully as the title itself; but we perceive little force in the argument that a parol release is not valid because an instrument under seal cannot be affected by an instrument of less dignity. We shall not, however, enter upon a discussion of the general subject, for we regard the question as settled by our own decisions. The decisions in the cases of Robinius v. Lister, 30 Ind. 142; Gavin v Buckles, 41 Ind. 528; and Coleman v. Lyman, 42 Ind. 289,-affirm that the grantor may successfully defend against a remote grantee. The rule has become one of property; hence it is our duty to adhere to it, and adjudge that a defense valid against an immediate grantee is equally effective against a remote grantee. Judgment affirmed.

OLDS, J., did not participate in the decision of this case.

CRUM V. MEEKS.

(128 Ind. 360)

(Supreme Court of Indiana. May 25, 1891.) SALE OF DECEDENT'S LANDS. DISCHARGE OF INCUMBRANCES-SETTLEMENT BY ADMINISTrator. 1. Intestate left real estate incumbered by a mortgage. Upon petition of the administrator, the land was decreed to be sold to pay debts, onethird of the proceeds to be paid to the widow, and the balance upon the debts. No mention of the mortgage was made in the petition or order of sale, and the land was sold under an agreement with the purchaser that the mortgage would be paid out of the proceeds of such sale. The mortgagee was not made a party to the proceedings. Held, that the mortgagee not being made a party, and it not appearing by the record that the land

*

to discharge the liens. In the latter case the purchaser will take and hold the lands freed from the liens. Unless otherwise ordered by the court, they [administrators] sell and convey the land subject to all incumbrances. To divest the lien of a mortgage by an administrator's sale of land, the mortgagee must be made a party to the proceeding, and the court must order the sale of the land to discharge the lien. In such case the lien is divested, and follows the proceeds of the sale. Martin v. Beasley, 49 Ind. 280; Boas v. McChesney, 53 Ind. 193; Foltz v. Peters, 16 Ind. 244; Clarke v. Henshaw, 30 Ind. 144; State v. Kelso, 94 Ind. 587: Henderson v. Whitinger, 56 Ind. 131; Moody v. Shaw, 85 Ind. 88; Brown v. Forst, 95 Ind. 248. In this case, McKee, the mortgagee, was not a party to the proceeding to sell, nor did the court order a sale to pay his mortgage. It is plain, therefore, that the lien of the McKee mortgage was not divested, and that the purchaser took the land subject to such lien, notwithstanding the administrator's assurance to the contrary. The question as to whether the land was sold subject to the lien of the mortgage, or freed therefrom, must be determined by the record, and not by the declarations of the administrator. Massey v. Jerauld, supra. As the land of the dereased was sold subject to the McKee mortgage, the appellant had no authority to pay such mortgage debt in full, to the injury of the appellee. Such payment was illegal, and a final settlement giving credit for the amount thus paid was illegal, and was properly set aside.

We do not think the matter relied on by the appellant constitutes an estoppel. The only affirmative matter alleged against the appellee is that he brought a suit to set aside the sale of the land, alleging as a reason therefor that the land sold too cheap. In this action he was defeated. We are not able to see any connection between the matters involved in that suit and the controversy here. In this case the appellee proceeds upon the theory that the sale of the land was legal, but alleges that the appellant misappropriated the funds arising from such sale.

The other matters relied on as constituting an estoppel consist of the failure of the appellee to make objections to certain acts and declarations of the appellant; but it does not appear that the appellee knew his rights, or that his failure to object in any degree influenced the con. duct of the appellant; nor does it appear that the appellant did not know all the facts as fully as the appellee. In such case there is no estoppel. Hosford v. Johnson, 74 Ind. 479. There is no error in the record. Judgment affirmed.

(128 Ind. 254)

ANDERSON et al. v. ANDERSON et al. (Supreme Court of Indiana. May 14, 1891.) NEW TRIAL AS OF RIGHT-QUIETING TITLE.

1. A motion in arrest of judgment in ejectment will not affect the right of a party to there. after move for a new trial as of right, upon compliance with Rev. St. Ind. § 1064, which provides that the court rendering judgment in ejectment must vacate same, and grant a new trial to the

party against whom judgment is rendered, who shall within a year from the rendition of such judgment give an undertaking that he will pay all costs and damages which shall be recovered against him.

2. Where a complaint contains a paragraph seeking to set aside a deed for fraud and undue influence, and another to quiet title, and the attacking parties are heirs of the deceased grantor, either party may claim a new trial as a matter of right, under Rev. St. Ind. § 1064, granting such new trial in actions of ejectment.

Appeal from circuit court, Clinton county; A. E. PAIGE, Judge.

J. V. Kent and J. Claybaugh, for appellants. Doyal & Gard, J. C. Suit, W. R. Moore, and J. G. Adams, for appellees.

MCBRIDE, J. The complaint in this case was in three paragraphs. By the first paragraph it was sought to have a deed for land set aside because of alleged fraud and undue influence exercised by the grantee over the grantor; plaintiffs alleging that they were the owners of the same as heirs at law of the grantor, who was deceased. The second paragraph was to quiet title to the same land, and the third was for partition of said land. The appellants were the plaintiffs below. The appellee David Anderson was the only party who made a defense, the other defendants having filed disclaimers. The appellee answered by a general denial, and also filed a cross-complaint, alleging title in himself to the land, and asking to have his title quieted. The cross-complaint was answered by a general denial. The cause was tried by a jury, and the appellants were successful, the jury returning a general verdict in their favor. The appellee filed a motion for a new trial for cause, which was overruled. He then moved in arrest of judgment, but before the motion in arrest was decided he filed a motion for a new trial as of right, under section 1064, Rev. St. 1881, tendering with it a bond, as required by the statute. This motion the court sustained, and granted a new trial. Appellants then moved the court to set aside and vacate the order granting a new trial as of right, and to restore upon the records the judgment rendered and entered in favor of appellants. The court overruled this motion, with other motions, by which appellants sought to attain the same end, and the question was saved by a proper bill of exceptions. The cause was again tried by a jury, and on this trial the appellee was successful, the jury returning a general verdict, finding for him both on the complaint and cross-complaint. A motion by appellants for a new trial for cause was overruled, and judgment was rendered in favor of appellee. Three propositions are argued by counsel for the appellants: (1) That the court erred in granting a new trial to the appellee after he had moved in arrest of judgment; (2) that the appellee was not entitled to a new trial as of right; (3) the court erred in giving certain instructions to the jury.

It is well settled in this state that a motion for new trial for cause comes too late after a motion in arrest of judgment. By moving in arrest of judgment, a motion for a new trial is waived. 1 Work, Pr. § 933, and cases there cited. This, how