#### Pomeroy *v.*Burnett.

Where a plea confesses the action, and does not sufficiently avoid it, the plaintiff may have judgment, if his declaration be good, *non obstante veredicto.*

If land, on which there is a mortgage, be sold with a covenant in the deed against incumbrances, the mortgage will he ho defence to a suit for the purchase-money, if there has been no eviction of the defendant, nor payment by him of any part of the mortgage-debt.

ERROR to *the,Parke*Circuit Court.

Perkins, J.

Assumpsit upon a promissory note by *Burnett*for the use of *Thompson,*administrator of *Thompson,*deceased, against *Pomeroy.*The *declaration*contains two counts. There are four pleas going to both counts. 1. The general issue; 2. Fraud and 3. Failure of consideration generally; and, 4. A plea which states that the note in the counts in the declaration mentioned, being the same note in both counts, was given for the purchase-money of a certain tract of land described in the plea; that at the time of the execution of the note, a deed by the payee thereof, with covenants, was executed for said land to the defendant; that one of the covenants in the deed was, that the land conveyed was free from incumbrance; that at and before the execution of said deed, there was upon said premises an outstanding mortgage to *Charles Grant,*school-commissioner of *Parke*county, for the sum of 300 dollars, which was more than the land was worth; and that the mortgage was due and unpaid *143at the commencement of the suit; wherefore the consideration of the note had failed, &c.

Replication to the second plea denying the fraud generally, and to the third and fourth pleas, that the consideration of the note had not failed in manner and -form, &c.

The cause was tried by the Court and the evidence is upon the record. It was admitted upon the trial that *Thompson*for whose use, as administrator, the suit was brought, was such administrator; and it was proved that he was in the possession of the note, and that it was the property of the deceased, *Thompson.*The note was given in evidence. It was also proved that the consideration of the note was the purchase-money of the land described in the plea; that the mortgage set forth therein was due and outstanding upon the premises; but that the same were worth more than the amount of the note and mortgage. The Court below, on these facts, found for the plaintiff and gave him a judgment for the amount of his note. The defendant moved for a new trial, on the ground that the judgment was not warranted by the evidence; but the Court overruled the motion, which is the error complained of.

The counsel for the defendant below assume the following grounds of objection to the judgment: 1. The evidence does not show sufficient authority on the part of *Thompson*to prosecute the suit. 2. The defendant’s fourth plea is proved, and as issue was taken on it, he is entitled to succeed whether it contains substantial matter of defence or not. 3. That plea does contain substantial matter of defence. The first ground of objection is not tenable. As to the second, it is not true that the fourth plea is proved. It alleges the amount of the mortgage to be more than the value of the land. The proof is that the land is worth more than the amount of the note and mortgage. Nor is it always true, that the defendant is entitled to succeed on proof of a plea, the matter of which constitutes no defence', to the action, even though issue be taken on it. In such a case, if the declaration show a good cause of action which the plea confesses, it is the duty of the Court to render judgment *non obstante veredicto.*1 Chitt. Pl. 695. — 9 Bingh. 532. — Arch. Civ. Pl. 321, 2. — 2 Arch. Pr. 261. The defendant is wrong *144¡n jj¡s third position. The fourth plea constitutes no defence to the action, and should have been demurred to. It is true that the mortgage is an incumbrance, and that its existence constituted an immediate breach of the covenant that the premises conveyed wére free from incumbrance, but until eviction, or payment by the vendee of the incumbrance or some part thereof, but nominal damages accrue to him on account of the breach, and no defence arises to the recovery of the purchase-money. To this point the authorities are numerous. *Smith*v. *M‘Campbell,*1 Blackf. 100.— *Whisler*v. *Hicks,*5 *id. 100.*— Smith v. *Ackerman, id.*541. — 4 Mass. 627. — 20 Pick. 474. — 11 S. & R. 109. — 10 Ohio, 317. — 10 Conn. 433. — 10 Wend. 142.

*J. A. Wright*and *S. F. Maxwell,*for the plaintiff.

*W. P. Bryant,*for the defendant.

*Per Curiam.*

The judgment is affirmed with costs.