This is an action by the State, on the relation of John W. Johnson, auditor of Gibson county, to foreclose a school fund mortgage executed by Willis S. Hargrove and wife, on the 12th day of November, 1866, to secure the payment of a note for one thousand dollars.
The defendants Stockwell and Viele demurred to the evidence. This was overruled, and a decree was rendered foreclosing the mortgage against all of the defendants. As to appellants Stockwell and Viele, the overruling of their demurrer to the evidence is the first and the important question for decision.
The complaint charges the execution of the note and mortgage by Hargrove and wife upon real estate in Gibson county, describing it, the recording of the mortgage in that county in January, 1867, the death of Hargrove and wife, and that since the execution of the mortgage the land has been conveyed to' appellants Stockwell, Viele and Paxton, who claim to be the owners thereof; that they hold by privity of title with said Hargrove, and that their rights are junior to the lien of the mortgage in suit. A copy of the mortgage was filed as an exhibit, and as a part of the complaint. In the mortgage, the State and county are not given in the description of the land.
A joint answer by all of the defendants, setting up title in themselves by virtue of a sale of the land for taxes in 1877, was held insufficient on demurrer. The only remaining answers were a general denial and payment. To the latter, there was a reply of general denial. To make its case, the State introduced the following documentary evidence:
*4First. A deed for the land from John L. Key in 1864, to said Hargrove.
Second. The note and mortgage described in and filed as a part of the complaint, dated the 12th day of November, 1866, together with a certificate of the clerk and recorder of Gibson county, and an affidavit of Hargrove, which were upon the same paper with the mortgage, and were also filed with the complaint, as a part of the mortgage. These were made for the purpose of procuring the loan from the State. In this certificate, it is stated that the land mortgaged by Hargrove is in Gibson county, this State, and had not been conveyed or encumbered by Hargrove, nor by any person under whom he claimed title. In the affidavit by Hargrove, he stated that he was the legal owner of the land, and traced the title from himself, through mesne conveyances, back to the United States.
Third. A deed from the sheriff of Gibson county to Caleb Trippet for thirty-five acres off of the east end of the land, dated the 10th day of May, 1876. This deed is based upon a judgment in favor of Trippet against Hargrove in 1874. It appears from the recitations in the deed, that the whole of the land described in the mortgage was bought in by Trippet; that he received a sheriff’s certificate for the whole, and that before getting a deed, he so assigned the certificate to one Lucius French as to entitle him to the west forty-five and one-half acres of the land so purchased. Hence the sheriff’s deed to Trippet conveyed only the remaining east thirty-five acres.
Fourth. A deed from Trippet to appellant Thomas R. Paxton for this thirty-five acres, dated March 2d, 1878.
Fifth. A deed from the sheriff of Gibson county to appellants Stockwell and 'Viele, for the forty-five and one-half .acres above mentioned, dated April 20th, 1880. This deed is based upon a judgment and decree in favor of said appellants, against said Lucius French, rendered at the August term, 1878, of the Gibson Circuit Court.
*5There was oral testimony on the part of the State as to the genuineness of the signatures of Hargrove and the clerk and recorder to the several documents executed by them as above; that during the year 1866 Hargrove lived on the Key farm in Gibson county; that during that year he was auditor of Gibson county, and that he died in 1879.
The above and foregoing was the evidence, substantially, in favor of the State. For the purpose of a decision upon the ruling of the court below, in overruling the demurrer to the evidence, we need not set out the evidence offered by appellants.
In the case of Lindley v. Kelley, 42 Ind. 294, it was held that upon a demurrer to evidence no advantage can be taken of any defect in the pleadings as a reason for sustaining- the demurrer; that upon such demurrer the court will infer from the evidence every conclusion that the jury could reasonably have inferred from it; that all of the facts of which there is any evidence are admitted, and all conclusions which can fairly and logically be deduced from those facts.
In the case of Ruff v. Ruff, 85 Ind. 431, it was held that by demurring to the evidence when conflicting, the demurring party withdraws from the consideration of the court whatever is favorable to himself, and consents that whatever reasonable-inferences can, shall be drawn from the evidence against him.
In the case of Ruddell v. Tyner, 87 Ind. 529, the same rule-was announced, and it was further held, that where there has. been a demurrer to the evidence, a motion for a new trial presents no question.
In the case of Talkington v. Parish, 89 Ind. 202, it was held that a demurrer to the evidence admits all facts which the evidence tends to prove, and all reasonable inferences-which may be drawn from them, but that forced and violent inferences are not admitted.
In the case of Kincaid v. Nicely, 90 Ind. 403, it was held that where, upon a demurrer to the evidence, there is evidence tending to sustain the party having the burden of the proof, the demurrer should be overruled.
*6In the case of Miller v. Porter, 71 Ind. 521, it was said, that by demurring to the evidence, the demurring party waives all objections to its admissibility, and admits as true every conclusion which the jury could reasonably have drawn from it.
We need not here determine as to the competency of all of the evidence on the part of the State. By demurring to it, appellants Stockwell and Viele have treated it as competent, and consented that such weight shall be given to it, and such inferences drawn from it, as the rules of law will warrant. Thus regarding the evidence, and applying the rules established by the above cases, the evidence, at least, tends to show that Hargrove was ■ the owner, and in the possession, of the land at the time the mortgage was executed by him, and that the title came to him, through mesne conveyances, direct from the United States. This being so, whatever title appellants had, if any, was subordinate to his and to the mortgage in suit.
If any force be given to the recitation in the sheriff’s deed to Trippet, that French, by the assignment of the certificate, acquired an interest in the forty-five and one-half acres, then it clearly appears that appellants Stockwell and Viele derived title through Hargrove subsequent to the mortgage. In such case, they were proper and necessary parties defendants. If no force is to be given to such recitation, then there is nothing to show that French had any interest in or title to any portion of the land, and consequently nothing to show that Stockwell and Viele had any title, although they had a sheriff’s deed based upon a judgment against French. Having such deed, they were pi’oper parties defendants. If they indeed had no title, it is difficult to see how they could be injured by the foreclosure. They had a deed, and if they •claimed anything under it, although they acquired no title by it, appellee was entitled to a foreclosure against them. Upon a demurrer to the evidence, whatever the rule may be in other cases, it was not essential that the proof should correspond exactly to the averment in the complaint, that Stock-well and Viele held in privity with Hargrove. They were *7brought into court to answer to the complaint charging that they claimed an interest, and that it was junior and subordinate to the mortgage. This was a challenge to them to set up whatever title they had or claimed to have. Hose v. Allwein, 91 Ind. 497. In response to this challenge, they set up no title except the tax title, and this went out upon demurrer.
If these appellants held or claimed through or under Hargrove, they were bound to take notice of the school mortgage, although it was not recorded as required by the general registry laws.. Deming v. State, ex rel., 23 Ind. 416. If they did not so hold or claim, it is immaterial whether or not they had any notice of the mortgage, as French, from whom they claim to have derived title, unless he derived his title through Hargrove and subsequent to the mortgage, is not shown to have had any title whatever. As against the showing in favor of title in Hargrove, by a direct line of conveyances from the United States, we can not surmise, upon the demurrer to the evidence, that French may have, in some way, acquired a title superior to the lien of the mortgage.
It is insisted further by these appellants, that the demurrer to the evidence should have been sustained because of a failure to give the county and State, in the description of the land in the mortgage. In their argument upon this point, which is elaborate and able, we are asked to overrule the case of Dutch v. Boyd, 81 Ind. 146, in which it was held, that it appearing upon the face of the mortgage and from the certificate of acknowledgment, that the mortgage was executed in this State, between residents of the State, the presumption, in the absence of anything in the instrument to the contrary, is, that the description was intended for lands in this State. We recognize, the force of counsel’s argument, but we are not satisfied that the doctrine of that case should be departed from. Besides, that case has been several times cited and followed. Wilcox v. Moudy, 82 Ind. 219; Smith v. Clifford, 83 Ind. 520; Keepfer v. Force, 86 Ind. 81; Brown v. Ogg, 85 Ind. 234. This last case, as to the description of *8the land, is identical with the one in hearing. In the case in hearing, not only is the residence of the mortgagors shown to be in this State by the mortgage, but the other dealings with the land show it to be in this State; for example, the land was sold to Trippet by the sheriff of Gibson county on a judgment and decree against Hargrove. In the sheriff’s deed, the land is described as being in Gibson county, in this State, and so it is described in the other sheriff’s deeds above referred to.
It is contended further that the mortgage is void, because, when executed, the mortgagor Hargrove was the auditor of the county, and made the loan to himself. Manifestly, the auditor had no right to make a loan to himself, but this will not defeat the right of the State to recover. The State can not in any sense be said to be in pari delicto. The general rule is, that contracts in violation of law are void, but this rule will not be extended and applied to a case like this, so as to enable the wrong-doer to take advantage of his own wrong against an innocent party. Deming v. State, ex rel., 23 Ind. 416; Scotten v. State, ex rel., 51 Ind. 52; New England Fire, etc., Ins. Co. v. Robinson, 25 Ind. 536; Behler v. German Mutual Fire Ins. Co., 68 Ind. 347, 354.
If the auditor were seeking to enforce a right under the -contract, or make defence by reason of its infirmity, a different question would be presented. In such a case it was said,, in Ware v. State, 74 Ind. 181, that the loan was void as to the wrong-doer. This was not, and was not intended to be, an adjudication that the mortgage in such case would be, in the full sense, void, so as to defeat the State in a recovery. The purpose of the inhibition is to protect the fund; it must not, therefore, be so applied as to destroy the fund.
The further objectioil is made, that the decree orders the property sold without relief from valuation and appraisement laws. As these appellants are not shown to have had any substantial interest in the land, they are not in a condition to> be injured by the form or substance of the judgment. We *9think, however, that under section 4390, R. S. 1881, the court had authority to decree the sale of the land without appraisement.
Under a motion for a new trial, filed by these appellants, they seek to question the ruling of the court below in the admission and exclusion of testimony. By demurring to the evidence, these questions were waived. By such demurrer, the demurring party says, in effect, that waiving all questions upon the exclusion of testimony, and admitting that the testimony before the court on behalf of the adversary is competent, material and relevant, it is not sufficient to make a case in his favor. Ruddell v. Tyner, 87 Ind. 529. The amount of recovery is not too large. The mortgage drew the same interest after as before maturity. Shaw v. Rigby, 84 Ind. 375 (43 Am. R. 96).
"We have now examined all of the questions made by the appellants Stockwell and Viele, and find that they are not such as to require a reversal of the judgment.
Appellant Paxton files a separate brief in this court, and presents some questions not discussed by counsel for the other appellants, Stockwell and Viele. He is in a position to present questions which they can not, as he did not demur to the evidence.
As already stated, appellants filed a third and joint answer, setting up title in themselves by virtue of a sale of the land for taxes. This answer was in bar to any recovery by the State, arid presents the question as to whether or not a sale of the land for taxes, after the execution of the mortgage, and for taxes which accrued after the execution of the mortgage, destroys the mortgage lien and gives to the purchaser at such tax sale a title superior to the mortgage.
We had occasion, recently, to examine this question and decided in favor of the mortgage lien as against such tax title. State, ex rel., v. Jones, 95 Ind. 175. It is provided by the statute, that “ Mortgages taken for such loans shall be considered of record from the date thereof, and shall have pri*10•ority of all mortgages or conveyances not previously recorded, and all other liens not previously incurred, in the county where the land lies.” Section 4380, R. S. 1881. It is also provided in the tax law, that the deed, executed by the auditor for land sold for taxes, shall vest in the ’grantee an absolute estate in fee simple, subject to all claims which the State may have on such land for taxes, liens or encumbrances. In this case the taxes accrued, and the sale was made, after the epcecutiofi of the mortgage in suit. By the express pro-; visions of the statute, therefore, whatever title appellants had "by virtue of the tax sale and deed, was subject to the claim ■of the State under the mortgage. An answer setting up such title, therefore, is not a sufficient answer in bar of the State’s action upon the mortgage.
It is further contended by this appellant, that the demurrer to the answer should have been carried back and sustained to the complaint. What we have already said in relation to the averments in the complaint, as to the location of the land in Gibson county, and the description of the land in the mortgage, will suffice here in response to appellant’s point, that the complaint is bad because of the alleged insufficient •description in the mortgage. As we have said, the complaint ■challenged the defendants to set up their title. It was not incumbent upon the State to show by averment that the amount of the mortgage could have been made by filing the claim against the estate of Hargrove. If this is a case in which ■equity would require the exhausting of Hargrove’s estate before proceeding against the land in the hands of appellants, and they sought the benefit of that rule, it was incumbent upon them to show the case to be such by a proper answer. Appellant Paxton is not in a condition to require further proof of Hargrove’s title, as whatever interest or title he has in or to the land, he holds under Hargrove. As shown by the evidence, Trippet bought the land at sheriff’s sale ■on a judgment against Hargrove, subsequent to the mortgage, and Paxton holds by a deed from Trippet.
*11It is further insisted by this appellant, under his motion for a new trial, that the court erred in admitting in evidence the certificate of the recorder and clerk, as to encumbrances upon the land, and the affidavit of Hargrove as to his title. Conceding that the objection and exception to this evidence were properly máde and saved, we think that there was no error. The statute requires such certificate and affidavit in making a loan of the school fund. Sections 4375 and 4376, R. S. 1881.
For the purpose of showing a compliance with the law in making the loan, if for no other purpose, the certificate and affidavit were competent evidence; and if competent for any purpose, the objection as made was properly overruled. Elliott v. Russell, 92 Ind. 526.
Upon the whole evidence, as set out in the bill of exceptions, we think that the appellant was chargeable with notice of the mortgage. Section 4380, R. S. 1881; Doming v. State, ex rel., 23 Ind. 416.
Complaint is also made, that the trial court erred in excluding an entry of satisfaction of the mortgage made upon the face of the record thereof in 1873, by the recorder of Gibson county. The mortgage was to secure a note for $1,000. The entry of satisfaction offered is as follows:
“ This mortgage satisfied in full, by filing in my office the treasurer’s receipt for the sum of three hundred and twenty-five dollars, May 15th, 1873. J. C. Halcomb.
“Attest: Thomas J. Robb, R. G. C.”
The statute provides, that whenever the amount due on such mortgage shall be paid, and the treasurer’s receipt therefor filed with the auditor, he shall endorse on the note and mortgage that the same has been been fully satisfied, and surrender the same to the person entitled thereto, and on production of the same, thus endorsed, the recorder shall enter satisfaction upon the record. Sections 4388 and 4389, R. S. 1881. The record shows no such endorsement by the auditor, nor is there anything in the record showing, or tending to.show, *12that “ J. C. Halcome ” was, at any time, the auditor of the county. This, at least, should have been shown, as the recorder had no authority to enter satisfaction in the first instance, nor had he authority to record any satisfaction unless the same was executed by the county auditor. For aught that appears, Halcome may have been a mere spoliator.
Filed May 6, 1884.Having examined the several questions discussed by counsel, we are of the opinion that the judgment should be affirmed» It is, therefore, affirmed with costs.