Crance v. Collenbaugh. ing the existence of an adverse title to the undivided twothirds of the land embraced in the deed, and an eviction by virtue thereof, to the damage of the plaintiff in the sum of one thousand dollars. The eviction was not by virtue of any judicial proceeding; but it is alleged that upon the assertion of the adverse title, the plaintiff was compelled and forced to surrender the said two-thirds of the land to the adverse claimant, and he thereby became evicted from the same. The defendant answered in three paragraphs. 1. A general denial; 2 and 3. Former recovery. Reply: 1. The general denial; and, 2. That the action was for a further and different eviction from that mentioned in the record of former recovery. Trial by the court upon an agreed statement of facts, and finding for the plaintiff. A motion for a new trial was made by the defendant, and overruled by the court, and final judgment was rendered for the plaintiff. The only error assigned is the refusal of the court to grant a new trial. From an examination of the statement of facts, we have come to the conclusion, that the motion for a new trial should have been sustained. Where a party holding under a warranty deed yields to what is claimed to be a paramount title, and gives up possession or buys in the adverse title, he must, in a suit on the covenants in the deed, allege and prove such paramount title. By a paramount title is meant a title which. is not only superior to that under which the land is held, but superior to the title of any one else. This is evident from the consideration that the plaintiff, if he had been sued for the recovery of the land upon the adverse title, could have defended himself upon any title superior to such adverse title, whether it was held by him or by some third person. See Hannah v. Henderson, 4 Ind. 174; Reasoner v. Edmundson, 5 Ind. 393; Small v. Reeves, 14 Ind. 163;, Woodford v. Leavenworth, 14 Ind. 311; Marvin v. Applegate, 18 Ind. 425. The agreed statement of facts in this case, on account of VOL. XLVII.-17 Cline et al. v. Love. blanks in it and for other reasons, does not satisfactorily show the existence and validity of the alleged paramount title, and for this reason the evidence was insufficient. The judgment is reversed, with costs, and the cause remanded for a new trial. BUSKIRK, J., did not participate in the decision of the cause. CLINE ET AL. v. LOVE. ASSIGNMENT OF ERROR.-Appeal from Superior Court.-On appeal to the Supreme Court from a superior court, the assignment of error should be based upon the action of the lower court in general term, in affirming the ruling at special term. An assignment that the court in special term erred in overruling a motion for a new trial presents no question. From the Marion Superior Court. L. Ritter and E. F. Ritter, for appellants. G. Carter, for appellee. BUSKIRK, J.-This was an action by the appellants against the appellee, to recover the possession of certain real estate, and to quiet the title thereto. There was issue and trial by the court in special term, and a finding and judgment in favor of the appellee. From this judgment, the appellants appealed to the general term, where the judgment of the special term was affirmed. From the judgment of the general term, the appellants appealed to this court, and have assigned for error here, that the court in special term erred in overruling his motion for a new trial. It is well settled by repeated decisions of this court, that such an assignment of error presents no question for decision in this court. The assignment of error should have been based upon the action of the general term, in affirming The Lafayette Agricultural Works v. Phillips. Carney v. Street, 41 Ind. 396; the ruling of the special term. 47 259 160 232 47 259 167 540 THE LAFAYETTE AGRICULTURAL WORKS V. PHILLIPS. PLEADING.-Warranty.—Fraud.—To an action on a promissory note, the defendant answered: 1. That the note was given for a combined reaping and mowing machine; that the plaintiff warranted that the machine would perform all the requisites of ordinary mowing; that the defendant, relying, etc., purchased the machine; and that at the time of the sale and warranty it was utterly worthless and of no value to the defendant. 2. That the defendant was unacquainted with the machine; that the plaintiff represented that the same would perform all the requisites of ordinary reaping and mowing; that the defendant was thereby induced, etc.; but that the machine would not perform as represented; wherefore, etc. Held, that both answers were bad; each should have averred that the defendant tested the machine in a proper manner, and in a reasonable time, and also that it was of no value, or that it was returned by the defendant to the plaintiff. It was not sufficient to aver that it was of no value to the defendant. EVIDENCE.-Motion to Strike Out.-When a motion is made to strike out evidence given on the trial, the grounds of the motion should be stated; and on appeal the grounds of such motion must appear in a bill of exceptions; otherwise the Supreme Court will presume in favor of the action of the court below in overruling the motion. From the Madison Circuit Court. M. S. Robinson and F. W. Lovett, for appellant. DOWNEY, J.-The appellant sued the appellee on a prom- 2. That the note was given for and in consideration of the purchase by the defendant of a combined reaper and mower, 167 541 The Lafayette Agricultural Works v. Phillips. of the Buckeye pattern; that at the time of the purchase the plaintiff warranted that the machine would perform all the requisites of ordinary mowing; that the defendant, relying upon said warranty and representation, then and there purchased the machine, and executed the note described in the complaint. It is then alleged that at the time of the warranty and sale the machine was utterly worthless and of no value to the defendant; wherefore, etc. 3. That the note was executed for a combined reaper and mower, of the Buckeye pattern; that the defendant was unacquainted with the machine; that the plaintiff represented that the same would perform all the requisites of ordinary reaping and mowing; that the defendant was thereby induced to purchase the same, and executed the note in suit therefor. It is then stated that the machine will not perform as represented by the plaintiff; wherefore, etc. The plaintiff demurred to the second and third paragraphs of the answer separately, on the ground that the same did not state facts sufficient to constitute a defence to the action, and the demurrers were overruled. Reply by general denial; jury trial; verdict for the defendant; motion by the plaintiff for a new trial overruled; and judgment on the verdict for the defendant. The errors assigned are the overruling of the demurrers to the second and third paragraphs of the answer, and the refusal to grant a new trial. The second paragraph of the answer is bad, we think, on two grounds, at least: I. It is not alleged that the machine was properly tested, to ascertain whether it would perform according to the warranty or not. It is stated that the machine will not perform as represented by the plaintiff. We think this is not a sufficient allegation of the breach of the warranty. It should have been alleged, with more particularity, that the machine was tested in a proper manner, and in a reasonable time, and that it would not, when so tested, perform as warranted. 2. It is not alleged that the machine was of no value, or that The Lafayette Agricultural Works v. Phillips. it was returned by the defendant to the plaintiff. It is only alleged that the machine was utterly worthless and of no value to the defendant. Howard v. Cadwalader, 5 Blackf. 225; Mooklar v. Lewis, 40 Ind. I. As a defence based upon false and fraudulent representations, the third paragraph of the answer is clearly insufficient. Not to mention any other defects in it, we think it is liable to the same objections to which the second paragraph is liable. The second objection is more clearly applicable to this paragraph than to the second, as it does not allege a return of the machine, and fails even to allege that it was of no value to the defendant. Several questions are presented under the second assignment of errors, one of which is this: The defendant was a witness on his own behalf, and testified in his examination in chief to a warranty of the machine. On cross-examination, the fact was disclosed that the warranty was in writing, and different in some material respects from the warranty to which the defendant had testified. The plaintiff then moved the court to strike out the parol evidence of warranty given by the defendant, which motion was overruled by the court. Had this motion been on the ground that parol evidence was inadmissible to prove the warranty, when the warranty was shown to have been in writing, we think it should have been sustained. But the bill of exceptions does not show the ground of the motion. The motion may have been on some other ground, and properly overruled by the court. We must presume that the action of the court was correct, unless the contrary is shown. We do not deem it necessary to examine the questions presented as to the instructions of the court to the jury, as the same views of the case may not again be presented; and so of the other questions discussed. The judgment is reversed, with costs; and the cause is remanded, with instructions to sustain the demurrers to the second and third paragraphs of the answer, and for further proceedings. |