#### Robards vs. Cooper.

Upon a bill to foreclose a mortgage given to secure tlie payment of a promissory note for the purchase of real estate, sold and conveyed by,deed of warranty, it is no de-fence .to set up, that at the time of the sale there was an incumbrance on the real estate, and that the vendor promised to remove the incumbrance before the note became due, and has failed to do so — such promise forming no part of the contract.

*Appeal from the Phillips Girowit Oov/rt im, Oha/ncery.*

Hon. Charles *W.*Adams, Circuit Judge.

Fowler, for appellant.

To a cross-bill, tiled by a defendant against the complain ant, who himself has brought the defendant into the forum, a demurrer for want of equity in such cross-bill, should never be permitted or sustained. *Mitf. Eq.*PI., *p.*64, -65/ 1 *lloffm. Gh. Pr.*356; *Fl-acI vs. Perry, 1 Mon. Rep.*258.

The matter set up by the cross-bill — the incumbrance on the land, and the agreement, to discharge it, was a part of the same transaction and proper for the interference of the chancellor.

S. WilliaMS, for appellee.

The only questions to be determined to sustain or reverse the decision below, were, 1st. "Was the answer sufficient? That, it was not, see 2 *Daml. Oh. PI. di Pr.*339, note; 4 *J. Oh. R.*4-37 / *Story’’s Ey. PL*863/ and secondly, whether the court correctly sustained the demurrer to cross-bill. As to parol evidence being inadmissible to vary or contradict written evidence, see *Jordan vs.*E-nno, 13 *Ark. Rep.*594.

The demurrer was rightly sustained, because the plaintiff on cross bill had a complete remedy at law in case of disturbance from Bingo’s mortgage, byresorting to the covenants of his deed.

*289It would certainly be necessary to aver in tbe cross-bill tbe insolvency of Cooper. *Ra/wle on Gov. for.*Title, 518; 2 *J. O. R.*520; 2 *Edwa/rd?s Oh. R.*37.

Mr. Justice "WalKEr

delivered tbe opinion of tbe Court.

On tbe 12tb of February, 1853, Eobards executed to Cooper bis deed of mortgage for certain negro slaves, to secure tbe payment of a promissory note of that date, executed by Eobards to Cooper, for fifteen hundred and fifty dollars, payable on tbe 1st day of January next-thereafter. After tbe note fell due, Cooper filed bis bill in chancery in tbe Phillips Circuit Court, to foreclose tbe mortgage and subject tbe slaves to sale. Eobards in bis answer admitted tbe execution of tbe note and mortgage, and that part of tbe note still remained unpaid; but set up by way of cross-bill, that tbe note avas given in consideration of a tract of land sold by Cooper to Eobards, and conveyed to .him by deed, with covenants of Avarranty of title, &c. That at tbe time of tbe purchase of tbe land, and the execution of tbe deed, tbe land Avas incumbered by á deed of .mortgage executed by Cooper to "William II. Eingo; that be (Eobards) was apprised of tbe existence of the mortgage to Eingó, at • the timo of bis purchase, and that Cooper promised that be Avould satisfy and discharge tbe same, and thereby remove said incumbrance before tbe note fell due, but that in fact said incumbrance, has not been removed, and that be is apprehensive that -the land may be sold to pay tbe same. Tbe complainant.is made defendant to tbe cross - bill, and called upon to answer with a prayer, that complainant be enjoined from proceeding to collect said mortgage debt, until such incumbrance is removed.

Tbe complainant demurred to tbe cross-bill. Tbe ground of tbe demurrer Avas, in effect, that tbe affirmative matter set forth in defendant’s answer, Avas insufficient to entitle him to tbe relief sought. Tbe court below sustained tbe demurrer; tbe defendant declined all further defence, and a final decree was rendered for complainant, from which tbe defendant has appealed.

*290There can be no question, but that the demurrer to the cross-bill was properly sustained. The verbal promise of Cooper, that he would remove the incumbrance before the note became due, added nothing to, and formed no part of, the contract. If it had been the intention of Bobards to withhold the purchase money until the incumbrance was removed, he should have so qualified his written promise to pay. The mere fact that there was an in-cumbrance upon the land at the time of his purchase, whether known or not, will neither entitle him to a rescission of the contract, nor to arrest the recovery of the note, executed for the payment of the purchase money, until the incumbrance is removed. Having entered into possession of the land purchased, the defendant must rely upon his covenants of warranty of title and quiet possession. Such is the general rule upon the subject, sustained by numerous decisions, collected by Mr. Bawle, in his work on *Oom-nazvts,*page 640 to 657.

There is, in this case, no allegation of fraud, of eviction, or even that suit has been brought to recover possession, nor any other circumstances alleged, upon which to base an exception to the general rule. Bingo, who is alleged to hold the prior lien, has asserted no right to it, and may never find it necessary to do so. Cooper’s ability to pay the sum due to Bingo, is not questioned, nor is there any circumstance developed by the pleadings to entitle the defendant to the relief sought in his cross - bill. Let the decree be affirmed.

Mr. Chief Justice ENGlish not sitting in this case.