¶1Suit on note. Answer: that the same was given to one Mary Daum for a part of the consideration of certain lands purchased of Henry Daum, husband of said *342Mary, a large part of said consideration being paid; that as a part of said consideration, &c., said lands were to be delivered into the possession of said defendant; that said Dawn refuses, &c, to deliver said possession, and has instituted a suit that is still pending, to annul the said contract of sale,' on the ground that said transfer was and is a mortgage only, although absolute on the face of the deed, &c.
¶2A demurrer was sustained to the answer; and the defendant refusing to answer further, the Court proceeded to try the case, and permitted the defendant to take a bill of exceptions embodying the evidence.
¶3The first question is made on the ruling on the demurrer; and the second as to the sufficiency of the evidence.
¶4The demurrer was properly sustained. The answer does not aver that the suit to annul the contract had been instituted previously to that upon the note; nor that, in the former, there was any effort being made to affect the payment of the note.
¶5The evidence was not sufficient to sustain the finding. There was no proof of the assignment, or rather indorsement, of the note to the plaintiff.
¶6The averment in the complaint should have been sustained by proof of a written indorsement, as the term used indicates that mode of transfer of title to the plaintiff.
¶7A party can not be permitted to rely upon a mere possession to establish title to a promissory note, while his pleadings aver a transfer in writing, and while the statute remains as it is, requiring the assignor to be made a party when the assignment is by delivery only, and such party has not been included.
¶8The judgment is reversed, with costs. Cause remanded, &c.