
    Coleman v. Hart.
    Common Ribas. — Title to Reai Estate. — An answer bad on demurrer, is not sufficient to put in issue the title to real estate, under section 1 of the act of 1859 (acts 1859, p. 94) providing for the transfer of cases in which the title to real estate is in issue from the Common Rleas to the Circuit Courts.
    Deed. — Merger oe Oras Contract. — An oral agreement by the vendor of real estate, made before the execution of the deed, to procure for the vendee an outstanding title to the land conveyed, is merged in the covenants of the deed.
    Copy or Written Instrument. — When a pleading is founded upon a written instrument, the original, or a copy thereof, must be filed with the pleading.
    APPEAL from the Tippecanoe Common Pleas.
   Gregory, J.

IPart sued Coleman in the court below on a note and mortgage given to secure the payment of $600, due on the 1st of April, 1865. On the 23d of Jvne the defendant offered to confess a judgment for $531, and the costs of suit to that time. The appellant answered, by way of cross-complaint, that the note was executed by him to the plaintiff for the last of the deferred payments of tfie purchase money of the land described in the mortgage. That the land was sold and conveyed by the plaintiff and wife to the defendant by a deed of general warranty, dated the 14th of May, 1864. That the full consideration to be paid for the land was the sum of $1,600; that, to secure the payment thereof, the defendant executed to the plaintiff his three promissory notes, and the mortgage sued on; the notes being as follows: one note for $500, payable on the 1st of June, 1864; one for a like sum, payable on the 2Qth of October, 1864, and one note for $600, payable on the- 1st of April, 1865. That the notes were all dated the 14th of May¡, 1864, and the first two notes were paid at maturity. That the title to the undivided one twenty-first part in- value of the land sold and conveyed as aforesaid was, at the date of the deed, and still continued, in one Anna Reynold's. That the plaintiff could not at the date of the- deed of warranty, nor at any time since, convey the- title to the said one-twenty first part of the land so held by Anna Reynolds as aforesaid. That at the date of the execution- of the note sued on, to induce the defendant to make the contract for the purchase of the land, and to make and deliver to the plaintiff' the note and mortgage sued1 on, the plaintiff promised and agreed with the defendant that he would perfect the title to the said? one twenty-first part in value of the land, so held' by Anna Reynolds as aforesaid, before the note and- mortgage sued on should become due. That the defendant, relying on the promise and agreement of the plaintiff*, executed to him the notes and mortgage as aforesaid. That the plaintiff had failed, on demand, to' perfect the title as he had agreed. That by reason of such failure, the consideration for the sum of $76 19 of the note sued on- had wholly failed. Prayer that the plaintiff have judgment for $581 only, and that he be restrained and enjoined from collecting the said sum of $76 19 of the note sued on, and1 all the interest accrued and to accrue on that sum, until he makes good the title to said undivided one twenty-first part in value of the land so held by Anna Reynolds as aforesaid, and for general relief. The answer was sworn to by the defendant. The defendant moved to transfer the cause from the Common Pleas to the Circuit Court, on the ground that the title to real estate was in issue. The motion was overruled. The plaintiff demurred to the answer, and the demurrer was sustained by the court below. The alleged errors complained of are: 1st. That the court erred in refusing to transfer the case to the Circuit Court. 2d. That the court erred in sustaining the demurrer to the answer.

Jones and Rogers, for appellant.

A. Roush, for appellee.

The Common Pleas Court had jurisdiction. Vaughn v. Stuzaker, 16 Ind. 338; Toner v. Mitchell, 13 Ind. 530; Harvey v. Dakin, 12 Ind. 481. It was not the duty of the court below, under the act of 1859, to transfer the cause to the Circuit Court. “ Legitimate pleadings,” in that act, mean sufficient pleadings. An answer bad on demurrer is not sufficient to put in issue the title to real estate* within the meaning of the statute. Acts of 1859, § 1, p. 94.

If the agreement of the appellee to procure the outstanding title of Anna Reynolds is in writing, then the answer is bad for not setting forth the original or a copy. If it was a verbal agreement, it is merged in the covenants of the deed. Oiler et al. v. Gard et al., 23 Ind. 212.

The deed is not set out, nor is it averred in the answer that it contained covenants of seizin or right to convey. If the deed contained any covenants that were broken, the original, or a copy thereof, should have been filed as the foundation of the defense, (Code § 78,) and there should have been such facts averred as would show a breach of the covenants relied upon. Laughery v. McLean, 14 Ind. 106. The court below committed no error in sustaining the demurrer to the cross-complaint.

The judgment is affirmed, with one per cent, damages ■and costs.  