Crown v. State, 44 Ind. 222; Hiatt v. Goblt, 18 Ind. 494; Whitworth v. Malcomb, 82 Ind. 454; Insurance Co. v. Hazelett, 105 Ind. 212214, 4 N. E. 5S2, 55 Am. Rep. 192; Machine Co. v. Glidden, 91 Ind. 447, and cases cited; Carper v. Kitt, 71 Ind. 24, 26; Dunkle v. Nichols, 101 Ind. 473; Sidener v. Davis, 69 Ind. 336; 1 Works, Prac. (2d Ed.) § 419. The transcript of the proceedings before the justice of the peace which was filed in the court below, and is a part of the record on this appeal, shows that a copy of each of said bonds was filed with the complaint before the justice of the peace; and the transcript of the proceedings of the court below shows that said complaint, and the copies of said bonds filed therewith as exhibits, were filed by the justice of the peace with his transcript in the court below. Said complaint is copied in the transcript of the proceedings of the court below, and immediately following said complaint copies of the bonds which are the foundation of the complaint are copied into the transcript. The complaint describes said attachment bonds, and the action in which they were executed and filed, and makes them a part thereof by alleging as to each bond, "a copy of which is filed herewith and made a part hereof." Under the authorities cited, this was all that was required to make said bonds a part of said complaint. It follows that the court erred in refusing to permit each of said bonds to be read in evidence. Judgment reversed, with instructions to sustain appellant's motion for a new trial, and for further proceedings not inconsistent with this opinion. (158 Ind. 361) KAUFMANN et al. v. PRESTON et al. (Supreme Court of Indiana. April 11, 1902.) APPEAL-PARTIES-SUIT TO QUIET TITLE-ANSWER-GENERAL DENIAL-DEFENSE. 1. A plaintiff, securing a judgment by default against certain defendants, may appeal from a judgment rendered in favor of answering defendants without joining defendants who defaulted, they being neither necessary nor proper parties. 2. Under Burns' Rev. St. 1901, § 1067 (Rev. St. 1881, § 1055; Horner's Rev. St. 1901, § 1055), permitting defendants in suits to quiet title to give in evidence every defense, under a general denial, defendants, answering by way of general denial a complaint alleging that the defendants claim an interest in the premises through certain mortgages, and as heirs of a deceased grantee, which claims are unfounded, may prove the due execution and recording of the mortgages and the probate of the will of the deceased grantee. Appeal from circuit court, Noble county; Joseph W. Adair, Judge. Suit by Barbetta Kaufmann and others, as executors of the will of Joseph Kaufmann, deceased, against Lucelia Preston and Mary Matteson and others. From a judgment for defendants Preston and Matteson, plaintiffs appeal. Affirmed. Thomas L. Graves and L. W. Welker, for appellants. DOWLING, J. Sult by appellants, as executors of the will of Joseph Kaufmann, deceased, to quiet the title to certain tracts of land in Noble county, Ind. All the defendants below, except Lucelia Preston and Mary Matteson, who are appellees here, made default, and judgment was rendered against them. The appellees, Preston and Matteson, filed separate auswers in denial. The issues so formed were tried by the court, and a finding was made in favor of the appellees. Over a motion for a new trial, judgment was rendered in favor of the appellees, Preston and Matteson, against the appellants. The plaintiffs below appeal, and assign for error the overruling of their motion for a new trial. The appellees move to dismiss the appeal, for the reason that the defendants below against whom judgment was rendered in favor of the appellants are not joined as appellants in the assignment of errors. The motion is not well founded. Such defendants were neither necessary nor proper parties to this appeal. They had no interest in the judgment in favor of Preston and Matteson against the appellants, and they were not affected by it. Preston and Matteson, the only appellees here, had no interest in the judgment in favor of the appellants against the defendants who made default. The rule is that all of the parties to the judgment, and affected by it, must be included in the appeal and named in the assignment of errors. Section 644, Burns' Rev. St. 1901 (section 632, Rev. St. 1881, and section 632, Horner's Rev. St. 1901). But where a defendant is not a joint judgment defendant with the appellant, such defendant need not be made a co-appellant in a vacation appeal. Zimmerman v. Gaumer, 152 Ind. 552, 554, 53 N. E. 829; Lowe v. Turpie, 147 Ind. 652, 692, 44 N. E. 25, 47 N. E. 150, 37 L. R. A. 245. Parties who make default must be made co-appellants when their cojudgment defendants appeal in vacation. Insurance Co. v. Frankel, 151 Ind. 534, 50 N. E. 304. But where judgment is rendered against some of the defendants, and in favor of others, only those in whose favor judgment is rendered are required to be joined as co-appellees upon an appeal by the plaintiff from the judgment against him. Hadley v. Hill, 73 Ind. 442. The grounds of the motion for a new trial were that the court erred in admitting, over the objection of the appellants, a mortgage executed by Lucius Preston to Hiram Brunson, the evidence of the probate of the will of Anson Preston, deceased, and the record of a mortgage executed by Russell A. Preston to Lucius Preston; that the decision of the court was not sustained by sufficient evidence; and that it was contrary to law. The object of appellants' suit was to quiet the title to land described in the complaint against all claims of each of the appellees in or upon the same adverse to the alleged right of the appellants. The complaint charged, in general terms, that each of the appellees made claim to some interest in the lands, and that such claims were unfounded. It averred, more specifically, that Lucius Preston mortgaged to Hiram Brunson a part of the land to secure the payment of a debt of $110; that the mortgage was recorded; that the debt so secured was afterwards fully paid; but that no sufficient release or entry of satisfaction had ever been made of record. The complaint also alleged that Russell A. Preston mortgaged to Lucius Preston a portion of the land described to secure the payment of a debt of $600; that this mortgage was properly recorded; that it was released of record, but that the heirs of the said Lucius Preston claim an interest in said land by reason of the said mortgage, and that such claim is a cloud upon the title of the appellants. It is further stated in the complaint that one Warren Gates sold and conveyed to Anson Preston, a remote grantor of appellants' testator, a part of the land in controversy, but that the deed was never recorded; that said Anton Preston became the owner in fee of the portion of said lands so conveyed, and that neither the said Gates, if living, nor his heirs, if he was dead, had any interest in said lands. The appellants contend that no issue was formed under which the two mortgages and the proof of the will were admissible. Under their answer in denial, the appellees were expressly permitted by the Civil Code to give in evidence every defense to the action which they might have, either legal or equitable. Section 1067, Burns' Rev. St. 1901 (section 1055, Rev. St. 1881, and section 1055, Horner's Rev. St. 1901); sections 1082, 1083, Burns' Rev. St. 1901 (sections 1070, 1071, Rev. St. 1881, and sections 1070, 1071, Horner's Rev. St. 1901); Green v. Glynn, 71 Ind. 336; Johnson v. Pontious, 118 Ind. 270, 20 N. E. 792; O'Donahue v. Creager, 117 Ind. 372, 20 N. E. 267; Watson v. Lecklider, 147 Ind. 395, 45 N. E. 72. The appellees were not compelled to file counterclaims and ask for affirmative relief in this suit. They had the right to stand upon their answer in denial, and upon that issue defeat, if they could, the claim of the appellants. If they succeeded, they might, in a subsequent action, assert and prove their title to, or interest in, the land. The proof showed that the appellees were heirs of former owners, or mortgagees of the lands described in the complaint, and it is entirely clear that they had the right to give in evidence the mortgages under which, as heirs of the mortgagees, they might have an interest, as well as evidence of the probate of the will of an ancestor. Indeed it would seem from an inspection of the complaint that the appellants themselves ought to have given the mortgages in evidence, and it is certainly true that the complaint ad mits the execution of the mortgages. Proof of the execution by the appellees, even if irregular, therefore could not have harmed the appellants. The court did not err in admitting in evidence the mortgages and proof of probate of the will. We have examined the evidence and found it sufficient to sustain the finding, which is entirely in harmony with the rules of law. There is no error in the record. Judgment affirmed. BREMS v. SHERMAN. (158 Ind. 300) (Supreme Court of Indiana. April 8, 1902.) ACTION ON NOTE JUDGMENT NOTWITHSTANDING VERDICT-SPECIAL FINDINGS. Where the only issue in an action on a note against a defendant who could not write was whether a third person was directed by defendant to sign his name to the note, a finding that defendant did not sign the note was not so inconsistent with a general verdict for plaintiff as to authorize a judgment for defendant notwithstanding the verdict. Appeal from circuit court, Starke county; Geo. W. Beeman, Judge. Action on a note by Adam G. W. Sherman against Henry Brems. From a judgment for plaintiff, defendant appeals. Affirmed. H. R. Robbins, for appellant. Gould & Peters, for appellee. HADLEY, J. This case comes to us under the provision of the act of March 13, 1901 (Acts 1901, p. 590). Appellee sued appellant upon a promissory note. Answer, non est factum. The jury returned a general verdict for the plaintiff, assessing his damages for the full amount of the note, principal and interest. They also returned their answer to an interrogatory as follows: "Ques. Did Herman Brems sign said note? Ans. No." Appellant moved for judgment in his favor on this answer notwithstanding the general verdict. The motion was overruled, which ruling presents the chief question in the appeal. The controversy is not whether Brems had signed the note with his own hand, but whether he had authorized another to sign it for him. The plaintiff, on his part, submitted testimony tending to prove that the defendant, who was unable to write, requested another to write his name for him, which the other did; while, on the other hand, the defendant submitted testimony tending to prove that he could not write, and did not write his name to the note, nor authorize any one else to write it for him. Under this state of the evidence, is the answer to the special interrogatory in irreconcilable conflict with the general verdict? If it is, the general verdict cannot stand. If it is not, the special answer will not affect the integrity of the general verdict. City of South Bend v. Turner, 156 Ind. 418, 60 N. E. 271, 54 L. R. A. 396; Stone Co. v. Summit, 152 Ind. 297, 53 N. E. 235. The special finding is that Brems did not sign the note. To sign is "to subscribe in one's own handwriting." Webst. Dict. 1339; 2 Bouv. Law Dict. p. 1001; 22 Am. & Eng. Enc. Law, p. 781. To say that A. "signed" a note and that he "executed" a note, as usually understood, may mean very different things. The former conveys the meaning that the act of signing was performed personally by the maker, while the latter imports that the maker either signed it himself, or authorized another to sign it for him. The terms are by no means equivalent. Hence the finding that appellant did not sign the note is far short of a finding that he did not execute the note. Appellant's motion for judgment in his favor was rightly overruled. It is conceded that there was evidence pro and con the controverted question of authority. The sum of this evidence satisfied the jury that the instrument sued on was the note of the appellant, and we cannot disturb the verdict. Judgment affirmed. (158 Ind. 325) D. LI. OSBORNE & CO. v. HANLON. (Supreme Court of Indiana. April 9, 1902.) PLEADING-FAILURE OF CONSIDERATIONPLEA IN BAR-SUFFICIENCY. 1. A plea of whole or partial failure of consideration must state facts showing such failure, though a general plea of no consideration may allege such fact in general terms. It 2. A plea in an action on notes given for farm machinery alleged in its introductory part that plaintiff ought not to maintain the action because defendant, before their execution, had purchased the machinery of plaintiff, under an agreement by which he was not to pay therefor unless the machinery worked right. was further alleged that defendant gave the machinery a trial, and that it would not work properly; but it was not alleged that it was properly tested, or that its failure to operate was due to defects. The plea further stated that thereafter the notes were executed under an agreement that defendant would not have to pay for the notes till the machinery did good work, and a similar agreement was alleged as occurring some three years later. Held, that the answer could only be construed to raise the defense that the notes were not to be paid till the machinery was made to work properly, and not as showing a breach of warranty, and was insufficient as a plea in bar, and demurrable, as an answer in bar must answer all that it assumes to answer, in the introductory part, in order to withstand a demur rer. Appeal from circuit court, Jay county; John M. Smith, Judge. Action on notes by D. M. Osborne & Co. against John F. Hanlon. From a judgment for defendant, and an order denying a new trial, plaintiff appeals. Reversed. Williamson & Whipple, for appellant. Taylor, MacGinnitie & Taylor, for appellee. JORDAN, C. J. Action by appellant to recover on two promissory notes executed by the appellee. Answer by the latter, demur rer thereto overruled, trial by jury, and verdict returned in favor of appellee, and judgment rendered thereon over appellant's motion for a new trial. The only alleged error argued and pressed by appellant for reversal is the overruling of its demurrer to the answer. The defendant in his answer to the complaint admits the execution of the notes in suit, but avers that the plaintiff ought not to have and maintain his action thereon, for the reason that about two months before the execution of the notes he "purchased of the plaintiff through its agent, conditionally, one binder, one mower, and one hayrake, at and for the agreed price of $180, to be paid $90 on the 1st day of September, 1894, and $90 on September 1, 1895." It is then averred that the contract or agreement of purchase between said agent and defendant for the purchase of these implements was that the defendant was to take them on trial, “and if they did not work right he was not to pay for them": "that the said binder, mower, and rake were to do good work, and the binder was to be as good a one and do as good work as any binder in the United States; that the said agent was to set up and start the binder, mower, and rake, and, when set up and tried, if they did do good work, then the same were to be the property of the defendant, and he was to pay for the same as hereinbefore stated." The pleading further charges that the defendant hauled these implements from the town of Bryant, in Jay county, Ind., to his farm, in Penn township, in said county, and that an agent of plaintiff, together with an expert sent by it, came to his farm, and set up and started the binder to work. After this follows a recital of what was said in a conversation had by and between the defendant and the agent, and then it is alleged that the agent and the expert "went away," and, after they had left, the defendant and his employés hitched three horses to said binder, and went out into the field and began to cut wheat with the binder. but found that it would not work right, in this: "that it would bind one or two sheaves, and then throw off three or four sheaves without binding, and that thereupon the defendant stopped work," and notified the agent who had set up the machine that the latter would not work; that in response to this notice an agent of plaintiff came to the defendant's farm, and, after the binder was again tried, it was found that it "worked no better than before." It would bind one or two sheaves, and then throw off three or four sheaves without binding. At this point the defendant interjects into his pleading a conversation had between himself and the agent of plaintiff, and then avers that, after this agent left, the defendant "again tried to work the binder, but it worked no better, but in the same way that it did on the trial made with it before." It is averred, however, that the defendant cut or harvested his wheat with this binder, and then "tried to cut his oats, but could not do so." It is next alleged that on August 28, 1894,-the day the notes in suit were executed,-the plaintiff's agent with whom the defendant originally made the contract for the purchase of the binder came to see him for the purpose of closing the sale. After setting out all that was said in a conversation between the defendant and this agent about the binder and about making a settlement, it is disclosed that the agent agreed with the defendant that, if the latter would execute his notes in settlement for the implements in question, he would give him a written guaranty that he would "not have to pay them until the machine or binder was made to do as good work as any machine in the United States." In consideration of this proposition, the defendant executed the notes in suit, and the agent at the same time gave him a written guaranty reciting therein that the defendant had given the notes to D. M. Osborne & Co. for a binder, mower, and rake, and that he would not be required to pay the notes until the binder was made to do as good work as any binder in the United States. This written guaranty is alleged to have been lost, and therefore defendant says he is unable to file a copy thereof with his answer. It is charged that, after the execution of these notes, "plaintiff failed to fix the binder so that it would work any better than it did at first." Following this agreement on February 12, 1898, it is alleged that an agent of the plaintiff called on the defendant and requested him to pay the notes, but he refused to pay them "because the binder was worthless, and had not been fixed by the plaintiff so as to be as good a binder as any binder in the United States." After reciting another conversation had between the defendant and the agent, it is then charged that it was finally agreed that if the defendant would pay the amount of the notes representing the purchase price of the mower and the rake, with the interest thereon, the agent would indorse a statement on the back of one of the notes showing the amount paid, and for what the same was paid, and that nothing more was to be paid on the notes for the binder until it was put in order; that thereupon the defendant paid the sum of $60 as principal, and $15.05 as interest, and this agent indorsed on one of the notes the following statement: "Received on the notes $60 principal, and $15.05 interest, to pay for mower and rake. No interest for binder, and the binder to be put in order before balance is paid." Since this payment it is averred that "nothing has been done by the plaintiff to put the binder in order, and that the same remains, and now is, and was at the commencement of this action, wholly worthless, wherefore it is alleged the consideration for the notes unpaid has failed, and plaintiff ought not to recover thereon." The answer is certainly a speci men of bad pleading,-being an intermixture of facts, conclusions, and evidence all thrown together, and the pleader seems to have succeeded in violating the rules of good pleading. The answer professes, both at the beginning and close thereof, to be in bar of the action in its entirety, for the alleged reasons that, under the facts set out, there has been a total failure of the consideration of the notes in suit. Section 369, Burns' Rev. St. (section 117 of our Civil Code), authorizes a failure or want of consideration in whole or in part to be set up as a defense to any action arising out of any specialty, bond, or deed, excepting negotiable instruments. A plea which in general terms alleges no consideration is good, but one which attempts to set up a whole or partial failure of consideration must state facts sufficient to establish such failure. Moore v. Boyd, 95 Ind. 134; Billan v. Hercklebrath, 23 Ind. 71. The rule, however, is well settled that an answer in bar, to be good on demurrer, must answer all that it assumes to in the introductory part thereof. The pleading in question, in its introductory part, alleges that the plaintiff ought not to maintain this action on the notes, for the reason that prior to their execution the defendant had purchased of plaintiff, through one of its agents, the implements mentioned, at and for the price of $180, one-half of which was to be paid September 1, 1894, and the remainder on September 1, 1895; that he was to take them on trial, and, if they did not work right, he was not to pay for them; that the binder was to be a good one, and do as good work as any binder in the United States. After the binder was received by the defendant, it is alleged that he gave it a trial to cut wheat, but found that it would not work right; that it would bind one or two sheaves, and then throw three or four sheaves off unbound. There are no direct or positive averments, however, disclosing that the binder was either properly tested, or that the cause of its failing to bind the wheat, or to operate as it should, was due to some defect in its construction, and not due to the man. ner in which the defendant used or oper ated it, or to causes other than its own de fects. If the defendant was relying upon any warranty made by plaintiff in the sale of the machine, it was essential that he should have clearly shown that the imperfect work which it performed was due to its own defects, and not to the manner in which it was operated. The answer falls short of showing a breach of an express warranty made at the time the binder was purchased. A pleading, to be good as such, must disclose (1) a warranty; (2) a breach thereof; and (3) damages resulting from such breach. Booher v. Goldsborough, 44 Ind. 490; Harvester Co. v. Bartley, 81 Ind. 406; McClamrock v. Flint, 101 Ind. 278; Aultman, Miller & Co. v. Seichting, 126 Ind. 137, 25 N. E. 894; Neidefer v. Chastain, 71 Ind. 363, 36 Am. Rep. 198; Aermotor Co. v. Earl, 18 Ind. App. 181, 47 N. E. 685. In fact, counsel for appellee in his brief concedes that the answer is not based on a written warranty, but asserts that it is founded on a sale of the binder to the appellee on the condition that, if the machine on trial worked all right, he was to keep it and pay the agreed price. It is shown that on August 28, 1894, some two months after the binder had been sold to the defendant, and after he had given it the trials or tests as alleged, and therefore was fully apprised of its deficiency, he entered into a new contract with an agent of the plaintiff who called upon him for the purpose of closing the sale as originally made. It was then agreed. it seems, that, if he would execute his notes, a written guaranty would be given by the agent that he would not have to pay until the binder did good work. In consideration of this proposition the notes were executed for the purchase price, and the time of paying the same was so changed or extended that the first half was to be due and payable September 1, 1895, instead of September 1, 1894, and the remainder September 1, 1896, and in return a written guaranty was executed by plaintiff's agent to the effect that the notes were not to be paid until the machine would do good work. Under this agreement it may be said that the defendant was authorized to retain and test the binder for a reasonable time in order to determine whether it did good work, and the notes were not to be paid unless or until the machine complied with this agreement. Some three years or over after the execution of the notes, on February 12, 1898, it is disclosed that a further agreement between defendant and plaintiff's agent was entered into, by which it was stipulated that if defendant would pay the purchase price of the mower and rake, in respect to which there was no controversy, and the interest thereon, payment of the amount due on the binder should be deferred until it was put in order and made to do good work. There is nothing to show that the machine was given any trial or test after these latter agreements. Whatever defense the defendant is seeking to interpose by this answer must be deemed to be founded on the agreement of the agent of the plaintiff that, if defendant would settle by executing his notes for the purchase price of the machine in controversy, payment thereof would not be exacted until it did good work. The answer, as previously stated, is intended to operate as a complete defense to the action, but, if it can be said to serve any purpose, it is to expose the fact that the plaintiff is prematurely, and in violation of its agreement, attempting to enforce payment of the notes, although it has failed, as averred, to put the binder in order so as to make it do good work in compliance with its agreement, and therefore its right of action on the notes should be suspended until it has discharged its ob ligation. The facts, as disclosed, certainly could not serve to forever bar the plaintiff's right of action, as it might within a reasonable time comply with its agreement by putting the binder in order, and thereby make it do good work. The defendant at the time he filed his answer still retained the binder, -at least, no return thereof, or offer to return, is shown; but regardless of this fact, however, he seeks to be entirely exempted from paying any part of the price which he agreed to pay for the binder. It is true that the answer alleges that the binder at the commencement of the action was worthless, and still continues to be. This, however, is not the equivalent of alleging that it was of no value at the time when purchased by the defendant. In fact, it is disclosed that the defendant, after its purchase, cut and harvested his entire wheat crop with said binder. This would certainly disclose that it was at least of some value, and not wholly worthless, at the time of the sale. By overruling the demurrer to this answer the court adjudged it to be sufficient in bar of the action, and in so holding erred, for which error the judgment is reversed, and the cause remanded. 1. Burns' Rev. St. 1901, § 3403, enacts that a conveyance of land to a trustee whose title is nominal only, with no power of disposition or management, shall be deemed a direct conveyance to the beneficiary. A mortgagor deeded the mortgaged premises to the mortgagee on an understanding that the mortgagor should have a year to redeem. The mortgagee conveyed to one who had knowledge of the agreement, who in turn conveyed to another, in order that the latter might recouvey to his immediate grantor, which he did. Held, that the mortgagor's right to redeem was not cut off. since, the mortgagee's grantee having notice, and title having vested in him on his conveyance to the last grantee, there was no equity of an innocent purchaser intervening. 2. Where a mortgagor deeded the mortgaged premises to the mortgagee on an understanding that, on payment of the debt within a certain time, the premises should be reconveyed, a contention that the transaction was a conditional sale, rather than a mortgage, was of no merit; it appearing that the debt was not extinguished. 3. Where a deed absolute on its face is a mortgage in fact,-a time having been agreed on for redemption,-a conveyance by the mortgagee under which the premises do not come into the hands of an innocent purchaser not shutting off the redemption right, the mortgagor may not sue the mortgagee for the difference between the value of the property and the mortgage debt. Appeal from circuit court, Johnson county; W. J. Buckingham, Judge. |