¶1The appellant does not Complain of the action of the court in dismissing Bucker from the cause. He assigns errors only as to the judgment against himself in favor of Saunders. His principal complaint is that the court sustained Saunders’s exception to the appellant’s original and supplemental answers. The grounds of this exception were that the answer did not offer for cancellation the deed Gee received from Bucker, and did not tender back the land conveyed by the deed.
¶2It is very clear that the answer was no defense to the action, either with or without a tender of the deed or land. The note sued on was a negotiable instrument, payable one year after date, and was transferred before maturity by Bucker, the payee, to Saunders & Co., and was thereafter transferred by Saunders & Co. to the plaintiff. These indorsees were presumably innocent purchasers, without notice of the defense set up in the plea of the defendant; and the plea did not aver any fact that would charge them with notice of the alleged failure of Bucker’s title. If every allegation of the answers had been proved in a proceeding between Smith and Saunders alone, the defendant could not have claimed a rescission of the contract, and the right to return the land and receive from Saunders the amount already paid him or the value of his improvements. As to whether or not the plea would have served as a basis for recovery against Bucker, we cannot inquire, as he was dismissed from the cause, and no appeal as to him is taken, and the controversy inaugurated between himself and Gee in the court below has not been brought before us for consideration.
¶3The introduction of the note in evidence was not objected to for any *336variance between the indorsement proved and that alleged, and if it had been, the variance was not of a character to mislead the defendant, and was for that reason immaterial.
¶4There is no error in the judgment and it is affirmed.
¶5Affirmed.
¶6[Opinion delivered May 28, 1886.]