On Petition for a Eehearing.
Zollars, J.Whatever appellee is entitled to under the law should’be freely awarded to her by the courts, but there is certainly nothing in her case, if the facts stated in the second paragraph of appellant’s answer are true as admitted by the demurrer, calculated to excite a great degree of zeal -and emphasis on the part of counsel, nor to require “ haste ” on the part of the courts to strain the law in order that she may recover.
The second paragraph of appellant’s answer shows that the parties are brother and sister. It is averred in that answer, that the note in suit was the result of a mutual mistake of fact, and that for it appellant received' absolutely nothing. Admitting that to be true, as appellee did by her demurrer, she yet insisted and still insists that she should recover the amount of the note.
Her counsel again contend, that the court below did not err in sustaining the demurrer to that paragraph of the answer, and for the first time insist that, if it did, the error was a harmless one.
It has long been the settled practice of this court, that questions not presented and discussed upon the original hearing, will not be noticed upon a petition for a rehearing. *5722 Works Pr., section 1116, and cases there cited. Not only was-it not claimed upon the original hearing, that the error, if any, was harmless because the facts set up in the second paragraph might have been proven under other paragraphs of the answer, but the case was submitted upon the theory that the several paragraphs set up separate and distinct defences. Notwithstanding that, we examined the record to ascertain whether or not there was any other paragraph of answer-under which the facts set up in the second paragraph might have been proven. We concluded then, and have no hesitation in holding now, that there was not. The second paragraph was the only answer setting up the mutual mistake of the parties. It was held in the opinion delivered upon the-hearing, that the second paragraph of the answer was good,, and that hence the court below erred in sustaining the demurrer thereto. Further investigation and reflection have strengthened our convictions in that regard.
It can not be said that the error was a harmless one. It is settled in this State, that the sustaining of a demurrer to a good paragraph of an answer will be a harmless error, if the defendant has another paragraph under which the same matters are admissible in evidence. So it was held in the cases of Mason v. Mason, 102 Ind. 38, McGee v. Robbins, 58 Ind. 463, Johnson v. Putnam, 95 Ind. 57, Moore v. Boyd, 95 Ind. 134, Epperson v. Hostetter, 95 Ind. 583, Luntz v. Greve, 102 Ind. 173, and Landwerlen v. Wheeler, 106 Ind. 523, now cited by counsel.
Such, however, is not the case before us. Here, as we have seen, there was no other paragraph of answer under which the facts set up in the second paragraph were admissible in evidence.
It is further claimed that the judgment is right upon the evidence, and that, therefore, the error in sustaining the demurrer to the second paragraph of the answer should be regarded and treated as a harmless error. In support of that contention, are cited the eases of Campbell v. Nebeker, 58 *573Ind. 446, Layman v. Shultz, 60 Ind. 541 (547), Gallagher v. Himelberger, 57 Ind. 63, and Landwerlen v. Wheeler, supra.
In the first three cases, the errors complained of arose in the ■trial of the causes, and not in the overruling of demurrers to good paragraphs of answers. The case last cited announces the well settled rule, that the sustaining of a demurrer to a good paragraph of an answer will be regarded as a harmless error if there is another paragraph under which the .same facts may be proven. It was not therein held, or intended to be held, that this court may look to the evidence to ascertain whether or not the sustaining of a demurrer to .a good paragraph of an answer was a harmless error. It has never been so held by this court. On the contrary, the holding has been, that in such a case, the evidence is not to be looked to for the purpose of discovering whether the ruling did or did not do harm. The rule, and the reason- of it, are fully stated in the case of Wilson v. Town of Monticello, 85 Ind. 10. The sustaining of a demurrer to a good paragraph of an answer, when there is no other paragraph under which the same facts may be proven, is, in effect, a decision by the court that the facts thus set up do not constitute a defence, and are not admissible in evidence. And although the record might show that some such facts as those specially pleaded were admitted in evidence, this court has no way of knowing that other facts in support of the plea "might not have been brought forward by way of evidence, had the ■court not ruled the plea insufficient as a defence. See, also, Pennsylvania Co. v. Poor, 103 Ind. 553; Pennsylvania Co. v. Marion, 104 Ind. 239.
It was claimed upon the submission of the cause, and is now claimed in the petition for a rehearing, that because the deed from appellee to appellant was a quitclaim deed, without covenants, appellant can not defend against the note. In support of that contention appellee’s counsel cite Oiler v. Gard, 23 Ind. 212, Shuler v. Hardin, 25 Ind. 386, Shumaker v. Johnson, 35 Ind. 33, Headrick v. Wisehart, 41 Ind. 87, *574Atherton v. Toney, 43 Ind. 211, Jones v. Noe, 71 Ind. 368, Beal v. Beal, 79 Ind. 280, and Axtel v. Chase, 83 Ind. 546,, and claim that if the holding in the principal opinion is correct, they should bo overruled, as it is in conflict with them»
In the principal opinion we showed the difference between this case and the eases of Shuler v. Hardin, supra, and Atherton v. Toney, supra. Those cases need be no further noticed.
The holding in the case of Oiler v. Gard, supra, was, that mistake or ignorance forms no ground of relief from contracts» fairly entered into with full knowledge of the facts, etc.
In the case before us, the parties did not have full knowledge of the facts. As stated in the answer, they acted upon the assumption that Jesse Fleetwood, the owner of the land,, was dead. In that they were mutually mistaken.
In the case of Shumaker v. Johnson, supra, there was no> mistake of fact, and hence that case is not authority in any way in conflict with our holding here.
And so, in the case of Headrick v. Wisehart, supra, there was no question as to any mistake of facts. It was held that, the grantor in a quitclaim deed could not be held upon a verbal promise to pay back taxes.
In Jones v. Noe, supra, the question arose under a warranty deed. It was held that the vendee could not successfully resist the payment of a note for the purchase-money, or recover more than nominal damages, while he retained possession of the land, and had suffered no inconvenience or expense by reason of the vendor’s want of title. That holding was correct, and rested upon the reason that underlies all such cases,, and that is, the possibility of the possession ripening into title. Small v. Reeves, 14 Ind. 163.
In the case before us, appellant was not in the possession, of the land, but had surrendered the possession to the rightful owner, as he had a right to do under the ruling in the case of Axtel v. Chase, 83 Ind. 546 (558), cited by counsel.
There is nothing in any of the cases cited by counsel at all in conflict with what we here hold..
*575In the case of Dodge v. Briggs, 27 Fed. R. 160 (167), cited by counsel, it was said that a person accepting a quitclaim deed is chargeable with notice of such invalidity of the grantor’s title, as he might have ascertained by inquiry. Here appellant had no way by which he could learn that the father was still living; no one knew that, or had any way of knowing it, until he returned.
We adhere to our former ruling, and overrule the petition for a rehearing.
Filed April 28, 1887.