On Petition eoe a Rehearing.
Bicknell, C. C.— The petition for a rehearing takes the following positions:
1. That the objection, for want of notice to the other parties, was not waived by the submission of the cause by agreement.
2. That, although Talburt did not receive the consideration of his promise, his liability was the same as if he had received such consideration.
*4433. That, although the deed conveyed lots 117 and 118, and Talburt never took possession of either, yet such deed passed to Talburt the possession of lots 217 and 218, although in fact he had no such possession.
4. That Talburt was liable to the appellee, whether she accepted him as her debtor before the rescission of the contract, or afterwards.
5. That, if such acceptance was necessary to be proved, it was proved, and that the fact of such acceptance was embraced in the special finding of the court below.
All of these positions are shown to be untenable by the opinion heretofore given. As to the last position, the plaintiff’s reply contained the statement “that on Nov. 13th, 1876, she notified Talburt that she accepted his agreement to pay said mortgage debt, and that said rescission was made after said notice, and with full knowledge that plaintiff had accepted .said Talburt’s agreement to pay said mortgage debt.”
This reply was deemed to be controverted, as upon a direct •denial or avoidance (Practice Act), sec. 74, and the burden of proof was upon the plaintiff. . The special finding leaves that issue entirely undetermined. A special finding must ascertain the facts and not merely report the evidence. Parker v. Hubble, 75 Ind. 580.
The petition for a rehearing ought to be overruled.
Pee Cueiam. — The petition for a rehearing is overruled.