Opinion.
Chalmers, J.:It is difficult to see how the deed from Porter, Taylor & Co. got into this record. It is not an exhibit to any portion of the pleadings, and there were no depositions taken; neither did the clerk make a note of the evidence offered in accordance with section 1947 of the Code of 1880. It was, nevertheless, treated as evidence by the court below and by counsel in this court.
This being the attitude, the case stands thus: The complainant undertook to show that he had title to the land, and ivas, therefore, in a position to comply with his portion of the mutual and dependent covenants, but in doing this he. showed that he had only an incumbered title, and thereby demonstrated that, if the defendant was compelled to pay, he would be in peril of having to lift these incumbrances, and to this extent would have to pay twice. The defendant was entitled, under his contract, to a deed in fee.
It is urged that he should have objected in the lower court to the introduction of the deed in evidence, and, not having done so, *637caunot make the objection here. Tbe point is not well taken. Tbe objection is not to the competency or relevancy of the deed, but to the sufficiency of the proof made. A party is never required to object to the insufficiency of his adversary’s evidence by preliminary motion. Indeed, the more insufficient it is, the better is his own position.
Decree reversed and cause remanded, with leave to take further evidence.