On Petition foe a Rehearing.
Zollars, J.Apparently, counsel argue with much zeal, and with the utmost confidence in the correctness of their several positions, that the petition for a rehearing by Stock-well and Viele should be granted. Their contention is, first, that the evidence is not sufficient to bring home to Stockwell and Viele notice of the school mortgage. In support of this contention, we are cited to the cases of Magee v. Sanderson, 10 Ind. 261; Peru Bridge Co. v. Hendricks, 18 Ind. 11; Faulkner v. Overturf, 49 Ind. 265; Martens v. Rawdon, 78 Ind. 85; Scarry v. Eldridge, 63 Ind. 44. These cases assert the well settled doctrine, that in an action to foreclose a mortgage against a subsequent bona fide purchaser from the mortgagor, it must be shown by the averments in the complaint, that the mortgage was recorded at the place and time provided by the statute. It is also the law in this State, that the registry of a deed is notice only to those who claim through or under the grantor by whom the deed was executed. Corbin v. Sullivan, 47 Ind. 356. This same rule may be applied to mortgages.
The mistake of counsel is in the proper application of the doctrine of these cases to the case in hand. If Stockwell and Viele had no title or interest in the land at all, they are in no condition to ask a reversal of the judgment of foreclosure, because that foreclosure could in no way affect them.. *13And if they stood by and offered no evidence to establish a title or interest to or in the land in themselves, or if, by demurring to the evidence, they withdrew from the consideration of the court, all of the evidence by them offered, they can not now complain of the decree of foreclosure. They were challenged to set up their title or interest, if they had any. They can not disregard this challenge, and then comr plain that the pláintiff did not protect their title and interest. Carver v. Carver, 97 Ind. 497, and cases there cited. They did set up a title by tax deed, and upon the answer being demurred out, they abandoned the claim. Counsel assume the whole case, by assuming that Stockwell and Viele did, or might have acquired title other than through or under Hargrove. The evidence shows that they acquired title through and under Hargrove, or they had no title at all. Key conveyed the land to Hargrove in 1864. In 1866, Hargrove and wife executed the mortgage in suit. In 1874, Trippet recovered a judgment against Hargrove, and a decree for the sale of the land in question, as Hargrove’s land. The land was sold on that decree and Trippet bought it in. He received the certificate of purchase from the sheriff, and so assigned it to French as to entitle him to receive from the sheriff a deed for forty-five and one-half acres of the land. This same forty-five and one-half acres, Stockwell and Viele afterwards bought at sheriff’s sale as the land of French. True, there is a possibility that French might have had title, other than through Trippet’s purchase and the assigned certificate, but upon a demurrer to the evidence courts will not look after possibilities. The only inference, and the legitimate inference, to be drawn from the evidence in this case is, that French’s title was that which he derived through the assigned certificate, and this carries us back to Hargrove’s title. Stockwell and Viele must, therefore, be held to have derived title through and under Hargrove. By a very casual examination of the sheriff’s deed to Trippet, which constituted a part of their chain of title, they would have learned *14that their title was traceable back to Hargrove. See Wiseman v. Hutchinson, 20 Ind. 40; Hazlett v. Sinclair, 76 Ind. 488 (40 Am. R. 254); Martindale Law of Conv., section 74, and cases there cited. When the conclusion is reached that they derived title through and under Hargrove, then the case of Deming v. State, ex rel., 23 Ind. 416, cited in the principal opinion, applies, and they were bound to take notice of the mortgage, although it may not have been recorded.
It is next contended that the judgment should be reversed because the evidence does not show title in Hargrove at the time he made the mortgage; and it is asked, with some emphasis, whether this court will hold, that' title to real estate may be established by the affidavit of a party claiming-to own it.
To that inquiry we very readily answer no, if any objection be made to such evidence. But if the parties will agree to waive the production of the proper evidence, and agree that such evidence shall take its place, as competent evidence, then we know of no reason why the appellate courts should interfere and overthrow judgments, and involve increased costs to the parties and to the public, because upon such agreement the best evidence was not brought forward.
Hargrove’s affidavit as to his title to the land was admitted in evidence by the trial court, and instead of contesting the case upon the ground that the affidavit was improperly admitted as evidence, Stoekwell and Viele demurred to the entire evidence, and thus, under the well settled rule, as laid down in the case of Miller v. Porter, 71 Ind. 521, waived all objections to the admissibility of the evidence, and to each and every part of it. They said in their demurrer, what the law also said for them: “The said defendants admit the written evidence, and all the facts stated by the witnesses hereinbefore set out, and every inference and conclusion the court may rightfully and reasonably draw therefrom.” Having thus, by resort to the demurrer, waived all objections to the admissibility of the evidence, it stands in the record pre*15cisely as if it had been admitted without objection by Stock-well and Viele, or with their positive consent.' And thus, the case falls within the rule laid down in the case of Compton v. Ivey, 59 Ind. 352; that title to real estate may be proved by parol when the evidence is not objected to.
If it should be conceded that the evidence under consideration was not sufficient to establish title in Hargrove at the time he executed the mortgage, it would not follow at all, that the judgment should be reversed. In the first place, Hargrove having executed the mortgage, it ought to be presumed, until something to the contrary appears, that he was at that time the owner of the land. Robinson v. Leach, 10 Ind. 308. In the second place, the evidence is clearly sufficient to justify the inference, that at the time Hargrove executed the mortgage, he was in open possession of the land under a deed from Key. Proof of this possession was primafacie enough to show that he was the owner. In a case like-this, at least, that ought to be so, until something to the contrary appears. Robinoe v. Doe, 6 Blackf. 85; Sheets v. Dufour, 5 Blackf. 549; Shiel v. Ferriter, 7 Blackf. 574 Morss v. Doe, 2 Ind. 65; Holten v. Board, etc., 55 Ind. 194; 3 Wait Actions and Defences, p. 10, and cases there-cited. And, in the third place, whatever title Stockwell and Viele are shown to have, they derived from Hargrove. They thus derived title from the same person who-executed the mortgage. Mr. Greenleaf says: “ Where both parties claim under the same third person, it is prima facie■ sufficient to prove the derivation of title from him, without proving his title.” See, also, Wilson v. Reelle, 78 Ind. 384; Bennett v. Gaddis, 79 Ind. 347. Some of the authorities state the rule in such a case stronger. See 3 Wait Actions and Defences, p. 17, and cases there cited.
In any view that may be taken of the case, as it comes before us, these appellants were not entitled to have their demurrer to the evidence sustained, and are not entitled to a rehearing. Their motion for a rehearing is overruled.
*16Appellant Paxton has also filed a petition for a rehearing, again assails the complaint, and contends that the demurrer filed to the answer should have been carried back and sustained to the complaint. We noticed this contention somewhat in the principal opinion, although the question is not properly presented by the assignment of errors. One of the assignments of error by this appellant is, that the court below erred in sustaining the demurrer to the third paragraph of answer. This assignment brings in question the sufficiency of that paragraph of answer and requires an examination of it, but it does not require an examination of the complaint, or call in question its sufficiency. The statute requires that the errors relied upon shall be specifically assigned. R. S. 1881, sec. 655. That the assignment of errors must be specific and definite, and that the questions to be considered here will be limited by the assignment, has been many times ruled by this court. Kimball v. Sloss, 7 Ind. 589; King v. Wilkins, 10 Ind. 216; Ruffing v. Tilton, 12 Ind. 259; MaCallister v. Mount, 73 Ind. 559; Board, etc., v. Byrne, 67 Ind. 21; Williams v. Riley, 88 Ind. 290.
It is very clear that the complaint can not be examined, or passed upon, under this assignment of error. To make the question which this appellant seeks to make, he should have assigned as error, that the court below erred in not carrying the demurrer back, and sustaining it, to the complaint. There was no demurrer to the complaint below. There was a motion to arrest the judgment which was overruled, and appellants excepted. That ruling is assigned as error here, and brings in question the sufficiency of the complaint. The sufficiency of the complaint is also brought in question by the assignment, that it does not state facts sufficient to constitute a cause of action. But these assignments raise the question only of the sufficiency of the complaint after verdict. It is argued now, that the complaint is insufficient, because the facts alleged therein are not sufficient to bring home to Paxton notice of the mortgage. The averments are, that the mort*17gage was executed on the 12th day of November, 1866, and duly recorded by the recorder of deeds of Gibson county on the 14th day of January, 1867; “that subsequent to the ■execution of said mortgage, said lands have been conveyed to said defendants, Paxton, Viele and Stockwell, who now claim to be owners thereof, but that they hold said lands by privity of title with said Hargrove, and their rights thereto are junior to the lien of said mortgage.” Although it is not necessary, as to school mortgages, as we have seen, the mortgage here is shown to have been properly recorded within the time fixed by the statute then in force. 1 G. & H. 260. If, then, appellants held the land by privity of title with Hargrove, and their rights thereto were junior to the lien of the mortgage, they were bound to take notice of the mortgage, and held subject to it. It is contended that this is not sufficiently shown by the complaint, because conclusions and not facts are stated. If it be conceded that the averments of the privity of title, and the juniority of rights, are averments of conclusions, as contended, it does not follow, when the question is made for the first time after verdict, that the defect may be made available as error. This is such a defect as ought to be, and we think is, cured by the verdict. It is not a case of an entire want of a material and essential averment, but rather a case of a defective averment that might have been amended below, and which, not having been questioned before verdict, should be disregarded on appeal. R. S. 1881, sections 398 and 658; Baltimore, etc., R. R. Co. v. Kreiger, 90 Ind. 380; Smith v. Freeman, 71 Ind. 85; Indianapolis, etc., R. R. Co. v. Petty, 30 Ind. 261; Charlestown School Tp. v. Hay, 74 Ind. 127; Parker v. Clayton, 72 Ind. 307; Indianapolis, etc., R. R. Co. v. McCaffery, 72 Ind. 294, and cases cited.
Other questions are discussed by counsel, but it would extend this opinion beyond proper limits to set out the results ■of our examination, and our conclusion upon each question. We have examined them all carefully, but find nothing in *18them that would justify the granting of a rehearing. The important ones are disposed of by what has been said upon the petition of Stockwell and Viele. The motion for a re-rehearing is therefore overruled.
Filed June 9, 1885.