On Petition foe a Reheaeing.
Morris, C.The appellants have filed a petition for a rehearing in this case.
It is insisted that the case of Axtel v. Chase, 77 Ind. 74, should not be followed. "We think the case well decided, and ;are disposed to adhere to it.
It is also insisted that the court erred in this case, in holding the third and fourth paragraphs of the appellants’ answer. bad.
The third paragraph of the answer is pleaded by both appellants, and purports to answer the whole complaint. The complaint alleged that the note and mortgage were given for the "balance of the purchase-money of lot 323 in Bloomington; that the appellee had put the appellant Andrew in possession ■of the lot. There is no averment in this paragraph of the answer that the possession of the lot'had been abandoned by him. The appellee was, notwithstanding the facts alleged in the answer, entitled to foreclose her mortgage. If she was, notwithstanding the facts stated in the answer, entitled to any .relief, it must be held to be bad. Hubbard v. Chappel, 14 Ind. 601; Rogers v. Place, 29 Ind. 577; Hanna v. Shields, 34 Ind. 84; Axtel v. Chase, supra.
*558The fourth paragraph of the answer is pleaded by Andrew J. Axtel alone, and answers so much of the complaint only as seeks a personal judgment against him. No fraud is alleged. It is averred that the appellee had no title to the land, but if is also alleged that she put the appellant Andrew J. in possession of it, and it is not averred that he is 'not still in possession. It is stated that he offered to surrender the possession of the lot to the appellee. It is insisted that these facts show a failure of consideration. We think they do not. The mere offer to surrender the possession of the lot to the appellee did not affect the consideration of the note. The offer to surrender the possession did not prevent the statute of limitations from running, and the possession thus retained might, through the lapse of time, ripen into a good and indefeasible title. The possession was a sufficient consideration for the note, and while he retained it, he could not say that the consideration had failed.
The appellants say that the facts alleged show, or are equivalent to, a breach of the covenants of warranty contained in the deed from the appellee to the appellant Andrew J. We can not assent to this proposition.
It is true that the vendor may voluntarily yield to the outstanding paramount title without the coercion of legal process, but he must abandon the possession, so that the true owner may enter. It is to him, not to his vendor, that he must sux’render.
In the case of Drew v. Towle, 10 Foster (N. H.) 531, the principle is stated correctly, and as favox-ablyto the appellants as it is held in any case, as follows:
“The defendant had an undoubted right, upon being satisfied of the invalidity of his title, to abandon the possession of the premises, and thereby avoid the necessity of litigation and its attendant perplexities, and expenses. He owed the plaintiff no duty to remain in possessioxx and sustaixx the burthen of the defence when the title was invalid. * * Now, the right of the defendant was at any period to give up the posses*559sion to the rightful owner, upon claim made.” Rawle Covenants, 246, et seq.
We know of no case going further than the above. The same doctrine has been held in a large majority of the States. But in this case it is shown by the paragraph under consideration, that there were no covenants in the deed available to the appellant. It is not shown that any claim had been asserted to the lot by any one, nor was ■ any offer to surrender the possession made to those alleged to hold the paramount title.
Had it been alleged that the possession had been abandoned, a reformation of the deed asked, and damages for the breach of its covenants demanded, a different question would be presented. We think there was no error in holding this paragraph bad. Marvin v. Applegate, 18 Ind. 425; Reasoner v. Edmundson, 5 Ind. 393; Woodford v. Leavenworth, 14 Ind. 311.
“An eviction,” say this court, in Reasoner v. Edmundson, supra, “ is a turning out of possession, or placing the party in such a situation that, his expulsion being inevitable, he voluntarily surrenders the possession to save expulsion.”
Per Curiam. — The petition is overruled.