¶1Edmundson sued Reasoner, administrator
¶2of Gavin, deceased, in covenant, alleging that Gavin, in his lifetime, December, 1845, conveyed to him a tract of land by deed, with the usual covenants; that the covenants of seizin and right to convey, and of freedom from incumbrance, had been broken; 'that the land, at the time, of his purchase, was covered by a mortgage to one Ezelkiel Morrison, and that said mortgage had been foreclose' and that he, Edmundson, had been evicted, &c.
¶3The defendant pleaded that said covenants had not been broken, but kept; that the premises conveyed were, at the time, &c., clear of incumbrance; and that Edmundson had not been evicted, &c.
¶4The cause was submitted to the Court, instead of a jury, *394and there was judgment for the plaintiff for his purchase-money and interest. A new trial was refused.
¶5The facts are, that one Selcrigg, of Laporie county, Indiana, owned the land, and, on the 17th of August, 1836, mortgaged it to Ezekiel Morrison. The mortgage was filed in the office of the recorder of Si. Joseph county, on the 21st of February, 1837; but no certificate of the official character of the justice of the peace who took the acknowledgment of it, was filed in said office till the 7th of November, 1837. The mortgage can not be treated as recorded, therefore, till this latter date.
¶6On the 15th of December, 1836, Selcrigg deeded the land mortgaged to Morrison, to Gavin. This deed Gavin failed to have recorded in St. Joseph county till 1840.
¶7In 1845, Gavin conveyed to Edmwndson, the plaintiff below in this suit.
¶8In 1840, Morrison foreclosed his mortgage, and bid in the property at the sale under the decree of foreclosure; but it does not appear that the sheriff ever made him a deed pursuant to his purchase, nor that he ever took possession. The deed from Selcrigg to Gavin was executed before the mortgage from the former to Morrison was recorded; but as said deed was not recorded till after the mortgage, and neither the deed nor the mortgage was recorded within the time required by law, the mortgage had priority as a lien, under the recording acts of 1836 and 1838, which governed it. It might be different under the acts of 1843 and 1852, which materially differ from prior statutes providing for the recording of deeds and mortgages.
¶9But notwithstanding said mortgage was a lien upon the land, its existence did not constitute a breach of the covenants of seizin and right to convey, the mortgagee not having taken possession. True, in strictness, the mortgage'purports to pass the legal title, “yet it is almost universally regarded, at the present day, as a mere security for the payment of the debt.” Rawle on Covenants for Title, 83.
¶10The mortgage did constitute a breach of the covenant *395that the property was unincumbered; but for this breach only nominal damages were recoverable till after the purchaser had been evicted. It becomes a material question, therefore, whether an eviction had taken place.
¶11An eviction 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.
¶12The evidence does not show that either of these things has been done in this case. For aught that appears, the plaintiff is yet, and has uninterruptedly been, in possession.
¶13The sale in the case, under the decree, was as upon an execution at law. Upon such sales the sheriff delivers no possession. He executes a deed to the purchaser, and leaves him to his action to obtain possession. Here no deed has been made, no suit for possession instituted, and the mortgage decree may have been settled after the sale even, so that the making of a deed by the sheriff became unnecessary; and such seems to be the reasonable inference from the facts.
¶14This case is clearly distinguishable, therefore, from Hunt v. Amidon, 4 Hill 345, a case that goes farther.in inferring an eviction from facts than any other we have met with. In that case a deed had been made, and the decree, according to the practice in New-York, contained the direction that the purchaser should be let into possession upon the .production of the deed, which facts the Court thought might be equivalent “in equity, at least,” to an eviction by an action at law; the Court laying stress upon the circumstance that the action was not covenant but assumpsit, an equitable action.
¶15As no eviction was proved in this case, the judgment below for the whole of the purchase-money and interest, was erroneous, and must be reversed.
¶16Per Curiam. — The judgment is reversed with costs. Cause remanded, &c.