¶1Utter sued Hunt upon a promissory note, and averred that it was the last payment upon lands described, that had been sold by plaintiff to defendant; that he had caused a tender of a deed and the note to be made, and demanded, &c.
¶2The defendant answered: first, in denial; second, that “ at the time of the sale of the land and tender of the deed, the plaintiff had no title to said land, and has not since acquired any title thereto.” Reply in denial.
¶3Upon the trial neither party introduced any evidence in reference to the title of plaintiff. It was shown that he had sold the land described to defendant, for $3,200, of which this $200 was the last payment, and that defendant was then, and had been for two years, in possession of the same.
¶4Was the evidence, upon the part of the plaintiff, sufficient under the issue formed? Prima facie it was. The defendant had been put in, and was then enjoying, the possession and profits of the lands. The fact that the plaintiff had possessed, and could thus deliver possession of said land to defendant, who continued in undisturbed enjoyment thereof, made such a case as threw the burden of - proof upon the defendant.
¶5The judgment is affirmed, with 10 per cent, damages and costs.