
    * David Townsend versus Ebenezer Weld.
    In covenant broken upon a conveyance of land with warranty, it is not competent for the defendant to give parole evidence that the plaintiff had knowledge of the title, by which he had been evicted, and agreed that the defendant should not be charged in the event of such an eviction.
    Covenant broken on a deed of the defendant to the plaintiff, made, for the consideration of 1676 dollars, to convey part of a messuage, &c., with covenants of a lawful seisin, good right to sell, premises free of all encumbrances, &c. The plaintiff avers that the defendant was not lawfully seised, that the premises were not free of encumbrances, and that Gillam Taylor had recovered the premises in a suit against the plaintiff, and ejected him by a lawful title. — The defendant pleads in bar, that Townsend, at the time of the conveyance, knew of the deed of defeasance under which Taylor recovered, and accepted the deed with an agreement that the defendant, Weld, should not be charged in the event of a recovery under that deed. This is traversed in the replication, and an issue taken thereon.
    Upon the trial of this issue, before Sewall, J., at the last March term in this county, the defendant offered to prove the agreement averred in his plea in bar, by parole testimony, which the judge ruled to be incompetent, and the parties proceeded to an inquiry of damages. The plaintiff finally consenting to take the sum mentioned as the consideration of the deed, with interest thereon, and his expenses in Taylor’s action against him, including the fees of counsel, a verdict was accordingly found for the aggregate of these sums. The defendant, waiving his review, moved for a new trial, for the judge’s rejection of the parole testimony.
    
      B. Whitman,
    
    in support of the motion, contended that it was competent for the defendant to give parole evidence of the fact put in issue by the pleadings. In the nature of the thing, no other evidence could be expected. If the plaintiff would take such a deed, with the knowledge of such a fact, capable of proof, he ought not now to recover damages against the mutual understanding of the parties to the contract at the time of executing it. The evidence was not offered to set up a title to real estate in the defendant; *but only to show the intent and meaning of the contract, or to explain what may be considered as a latent ambiguity in the deed, upon which the action was brought
    
      
      L. Richardson for the plaintiff.
   Curia.

This was an attempt to control the effect of a written and sealed instrument, by parole evidence, which is never permitted. Supposing this encumbrance known, it was still competent to the defendant to covenant with his grantee to save him harmless from its effects; and if such was not his intention, he should have ex cepted it out of his general covenants.

Judgment on the verdict  