Barber v. Barber.

himself a wrong-doer, has no right to put the other party upon the proof of title."

Where the plaintiff is not in actual possession, he would undoubtedly be required to prove title, which would draw after it such a constructive possession as would enable him to maintain an action. Raub v. Heath, 8 Blackf. 575. If in this case the plaintiff had alleged his title only, without alleging possession, it is difficult to see how he could have recovered without proving that title, in view of the rule that the allegations and the proofs must correspond. But having alleged a possession as well as title, proof of possession alone authorized a recovery, without proof of title; hence we can by no means say that the title to real estate came in question. Bennett v. Coffin, 4 Ind. 219, is in point. There the plaintiff, having recovered less than 5 dollars in an action to recover damages caused by a mill dam, recovered full costs. This Court, in the absence of the evidence, presumed, in favor of the ruling, that the title did come in question. See also Dodd v. Sheeks, 5 Blackf. 592. The cases of Rogers v. Perdue, 7 Blackf. 302; and Harvey v. Dakin, 12 Ind. 481, may also be cited as in point, that it will be presumed in favor of the ruling of the Court below, where the record admits of such presumption, that the title to real estate did not come in question.

In the case of Cromwell v. Lowe, 14 Ind. 236, the plaintiff offered his title deeds, and the Court instructed the jury that he must show, by a preponderance of evidence that he was the owner of the land, &c.; hence it was held that the title was in issue. The case of Dixon v. Hill, 8 Ind. 147, which is relied upon by counsel for the appellant, is not in point, for there the plaintiff never had possession of the land; on the contrary it was averred that at the time the land was entered and ever since, the defendant was in possession. It was very properly held that the title was put in issue by the answer in

Stevens v. Campbell.

denial. The plaintiff could not have recovered at all without proving title.

As the plaintiff herein might have recovered by showing possession of the land as alleged, without proving title, and as the evidence is not before us, we will presume that the title did not come in question, and affirm the judgment below. Per Curiam.-The judgment is affirmed, with costs.

George Holland and Charles C. Binkley, for the appellant. John M. Johnston, for the appellee.

STEVENS V. CAMPBELL.

PARTIES FORECLOSURE.-The mortgagor is not a necessary party in an action to foreclose a mortgage, where he had sold the equity of redemption before the commencement of the foreclosure suit. SAME. But, if the mortgagee desired to recover a personal judgment against the mortgagor for any deficiency after the sale of the mortgaged property, then he would be a necessary party. PLEADING.-A complaint in foreclosure is good, which avers, against the owner of the equity of redemption, that the mortgagor is indebted to the plaintiff by note in a specified sum, which is due and unpaid, and that the mortgagor and his wife executed a mortgage to secure it, and that the mortgage was not recorded, and that the defendant purchased the equity of redemption with actual notice of the mortgage, the mortgage and notes being made parts of the complaint.

PRACTICE. It is not error to strike out a paragraph of an answer which renders necessary no other proof than was already made necessary by the previous filing of the general denial.

Stevens v. Campbell.

APPEAL from the Fulton Common Pleas.

WORDEN, J.-Complaint by Campbell against Jesse Klinger and his wife, and also against Stevens, the appellant. It charges that Jesse Klinger executed to the plaintiff a promissory note, which was over due when the suit was commenced, and that he and his wife executed to the plaintiff a mortgage on certain property therein described to secure the payment of the note; and copies of the note and mortgage are duly set out. It further charges that the mortgage was not recorded, but that Stevens purchased the land of Klinger after the execution of the mortgage, having notice thereof, and that he claims to be the owner of the land.

Stevens demurred to the complaint, because it did not state facts sufficient, &c. The demurrer was overruled. He then filed an answer denying every allegation in the complaint relating to him. He afterwards, on leave granted, withdrew his answer, and again demurred to the complaint, on the ground that it did not state facts sufficient, &c. The demurrer was again overruled and he excepted. He then refiled his former answer, and a second paragraph alleging that he purchased the land of Klinger on the 1st of January, 1860, (which was after the mortgage was executed,) without any notice of the existence of the mortgage, which had not been recorded, &c. The second paragraph, on the plaintiff's motion, was stricken out, and Stevens excepted. The issue thus formed was tried by the Court. Finding and judgment for the plaintiff, the Court ordering the overplus on the sale of the land, after paying the plaintiff's debt and costs, to be paid to Stevens.

Stevens alone appeals, and assigns but two errors: 1. The overruling of his demurrer to the complaint; and—2. The rejection of the second paragraph of his answer.

The demurrer was correctly overruled, the complaint being sufficient. It charged against Klinger and wife the making

Stevens v. Campbell.

of the mortgage, and that Stevens purchased the land of Klinger with notice. But it is urged here that Klinger and wife were not parties to the suit, wherefore the demurrer of Stevens should have been sustained. The complaint was against Klinger and wife as well as Stevens; and the fact-if such were the fact-that at the time the demurrer was filed and passed upon, Klinger and wife had not been brought into Court, was no reason why the demurrer of Stevens should have been sustained. The record contains no process against Klinger and wife, and it is not clear that they appeared. But Stevens, having purchased the equity of redemption, Klinger and wife were not necessary parties to a bill to foreclose the mortgage. Story Eq. Plead. sec. 197. If the plaintiff sought relief against Klinger and wife, beyond the sale of the premises, as a judgment against Klinger for any deficit after the sale of the premises, or to make the judgment of foreclosure conclusive against the wife in respect to her interest in the land, in case she should survive her husband, they, for such purposes, were necessary parties. These, however, are matters in which Stevens had no concern. Klinger and wife are not complaining of anything done against them.

The striking out of the second paragraph of Stevens' answer did him no harm, as, under the general denial, which was in, the plaintiff, having admitted that Stevens had bought the land of Klinger, and that the mortgage was not recorded, and having alleged that Stevens had notice of the mortgage, would be bound to prove such notice. The counsel for the appellant argue this point as though the paragraph stricken out was the only one in the record. In this they are mistaken. The record, having once set out the original answer in denial, and which had been withdrawn, informs us that the defendant filed his amended answer in two paragraphs, the first paragraph being the former answer refiled; and the second is then set out.

The State v. Gilbert.

Per Curiam.-The judgment below, as against Stevens, is affirmed with costs.

J. Guthrie, F. C. Annabal, and M. R. Smith, for the appellant.

S. Keith, D. D. Pratt, and D. P. Baldwin, for the appellee.

THE STATE V. GILBERT.

CRIMINAL LAW AND PRACTICE. For a sufficient form of information, for obstructing the execution of criminal process, see the opinion.

APPEAL from the Jefferson Common Pleas.

PERKINS, J.-Information against Gilbert for obstructing the execution of criminal process. The information alleges that the officer arrested, upon a warrant, one Franklin, who was duly charged with larceny; but it alleges, that while making the arrest, Gilbert, then and there knowing that the officer had a warrant for Franklin, and was endeavoring to arrest him, did assault, beat, abuse, and resist the officer while executing the process.

We think, though the information is informal, it reasonably means that Gilbert resisted the officer, while making the arrest, by assaulting, abusing him, &c.; and that this shows an obstruction of process. Our statute expressly provides,

that the words of the statute need not be used in criminal pleadings, but that equivalent words will be sufficient. We think the averments in the information show an obstruction, within the meaning of the statute. That the obstruction was not sufficient to prevent the arrest, does not render the obstruction innocent.