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By the Court.

Berry, J.

This action is brought upon a promissory note in form as follows: “ On the 8th day of May, A. D. 1868,1 promise to pay James W. Lough three hundred and sixty dollars and forty-seven cents, for value received, in real estate in town one hundred and fourteen, range twenty-three, section nineteen, Scott county, state of Minnesota, deed even date herewith.

Witness my hand December 17th, 1867.

J. Bragg.

William Yarner, Surety.”

The defence set up in the answer, is that plaintiff and one Dickerson agreed to construct for defendant Bragg, a house upon a lot owned by plaintiff, to be selected by Bragg, and upon the completion thereof, to convey the lot so selected and built upon to Bragg in fee simple, for the agreed price for land and building of $ 1,220; that Bragg selected the lot, plaintiff representing that he owned the same in fee simple, which representation was relied upon and believed by Bragg; that plaintiff and Dickerson, or one of them, erected the building contracted for upon the lot selected; that from time to time prior to Dec. 17th, 1867, Bragg, paid to plaintiff and Dickerson upon the contract $860; that on Dec. 17th, 1867, defendants made and delivered to plaintiff the note in suit “ for the balance due on said.house and lot, and not otherwise;” that after the execution of the note, and not before, defendant Bragg discovered that plaintiff was not the owner of the lot upon which said building was erected, and that plaintiff had no right, title or interest therein, or thereto, by reason whereof *123defendant Bragg has acquired no title to said building and lot nor has he received any consideration for said sum of $860, nor for said note. • ■

The case went to trial upon the complaint and answer. Defendant had a verdict. Plaintiff moved to set the same aside, and for judgment notwithstanding the verdict, a practice which seems to be recognized as legitimate in a proper case by section 222, ch. 66,- Gen. St. “ Where a plea confesses the action, and does not sufficiently avoid it, judgment shall be given upon the confession, without regard to a verdict for the' defendant, which is called a judgment non obstante veredicto. 1 Ch. Pleading, 656; 2 Tidd’s Pr. 920; Williams vs. Anderson, 9 Minn. 52; Bellows vs. Shannon, 2 Hill, 88. The judgment in such case is, however, always upon the merits, not upon the form of pleading. See authorities supra. Now in the case at bar, the answer confesses the execution of the note in suit, but it fails to avoid the plaintiff’s alleged cause of action thereon.

The answer does not allege the execution by plaintiff of any deed purporting to convey the lot selected as aforesaid to the defendant.

The defence does not then rest.upon any failure of title to land attempted to be conveyed, nor upon any breach of a contract of seizin, as in Lowry vs. Hurd, 7 Minn. 357, cited by defendants’ counsel as his sole reliance in this case, in which he makes no argument.

But the defence is, in substance, that the plaintiff contracted to convey to defendant Bragg in fee simple a certain lot of which he represented himself to be the owner, with the building to be erected thereon; that the note in suit was given for the unpaid balance of the agreed price of said lot and'building, and that the plaintiff was not the owner of said lot, and had no right, title or interest therein, by reason whereof defendant *124Bragg has acquired no title to said building and lot, nor has he received any consideration for said note.

In strictness the answer contains ho direct allegation of the plaintiff’s want of title or interest in the lot, but only of the non-discovery of the same by the defendants until after the execution of the note, but we give the defendants the benefit of the construction which seems to have been put upon the answer by both parties. It is hardly necessary to say that without this construction (strained though it be) the answer is palpably insufficient •,' but even with this construction, we think that it fails to set up any defence to the note.

No fraud on the part of the plaintiff is alleged in the answer, either in making the representation aforesaid, or otherwise. So far as is disclosed in the answer, the real consideration of the nqte is the obligation of the plaintiff to convey the lot in fee simple'; so that this is not a case of want of consideration. It is not important whether plaintiff is or ever was the owner of the lot, but if upon proper demand he conveys, or procures to be conveyed to Bragg the fee simple of the same, he will have substantially performed his contract. But until demand of conveyance, and the neglect or refusal to execute the same, the plaintiff is not, so far as the answer shows, in default, and there cannot be said to be any failure of the consideration of the note.

No demand of conveyance is pleaded in the answer, while if we look at the evidence, Bragg himself testifies that no demand has been made. Nor, for reasons too obvious to justify mention, is there any ground upon which the answer can be sustained as setting up a counter-claim either by way of set-off or recoupment. So far then ás we can discover, there is no valid 'defence whatever set up in the answer, and under the rule before cited, we think the motion for judgment, notwithstanding the verdict, should have been granted. Nor, *125upon looking into the testimony in the case do we see any reason why, even if the facts proven had been properly pleaded in the answer, or if the answer had been.so amended as to conform to the facts proven, a judgment, notwithstanding the verdict, would not have been a judgment upon the merits of the case.

We will not stop to. consider the manifest discrepancies between the answer and the evidence introduced by defendants, and the effect of these discrepancies upon the admissibility of a large part of the testimony.

It appeared upon the trial that at the time of the execution of the note, plaintiff conveyed certain land to Bragg by the deed referred to in the note, the same being a warranty deed.

The evidence tended to show that the deed conveyed a perfect title in fee simple to the land - therein described, and there was no evidence whatever to the contrary. Prom the terms of the note, as well as from the testimony, it distinctly appeared that the conveyance thus, made by plaintiff was in fact the. consideration of the note. There is to be sure, evidence in the case going to show that Bragg supposed that the deed referred to conveyed the lot selected by him, and upon which the building had been erected, instead of the tract of land in fact conveyed thereby. Upon this state of facts defendants would occupy this position. They have given the note in suit for a deed which conveys to Bragg a piece of land, but not the piece which he intended to purchase, or which he supposed was conveyed to him. But it is nevertheless true that the deed has conveyed to him a good title to the land purporting to be conveyed. Admitting then that he accepted the deed under a mistake as to what land was conveyed thereby, upon what ground can payment of the note' be resisted 1 Bragg has received a valuable- consideration for the note, and that consideration he retains, not having taken any *126steps upon his part to rectify the alleged mistake by reconveying, or offering to reconvey the land conveyed.

If he desires to rescind the contract so as to avoid his own liability under the same, he must place the plaintiff in statu quo, or at least offer to do so. But if he does not see fit to restore to the plaintiff what he received from him for the note, then he must be regarded as acquiescing in the conveyance as it is notwithstanding the mistake, and he must pay the note.'

Whether then we consider the answer as it reads, or as it would read if conformed to the facts appearing in evidence, we fail to discover any defence to the note in suit.

The order denying judgment notwithstanding the verdict is reversed, and the court below is directed to render judgment for plaintiff for the amount of his note.

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