
    Dwight Foster versus Samuel Woods and Another, Administrators.
    in a conveyance by administrators, of sundry parcels of land, there was an ex ception from the operation of their, covenant of warranty, of all mortgages made by their intestate in his lifetime and recorded. There were three such mortgages, and also one unconditional conveyance of a parcel of the land, all which were recorded. As to the last-mentioned deed, there was also a bond of defeasance executed by the grantee, but not recorded, nor so required by law to be. The grantee in this last deed having evicted the purchaser of the administrators, who had summoned them to defend his title, he brings bis action against them for a breach of their covenant of warranty. In this last action, the defendants were allowed to prove, by oral testimony, tne knowledge of the plaintiff of the said deed of defeasance, before the sale to him by the administrators ; which being considered as a mortgage within the said exception, the plaintiff failed in his suit
    This was an action of covenant broken, against the defendants, as administrators of the estate of James Woods, who, with one Joseph Pepper, as administrators of the estate of one Ezra Pepper, deceased, conveyed sundry tracts of land, part of the estate of said Ezra, to the plaintiff, by their deed dated the 14th of September, 1807. The covenant contained in the deed, which is alleged to be broken, is that of warranty; and an eviction is averred under a judgment of Court in favor of Ezra Pepper, junior, son of the aforenamed Ezra, of whose estate the defendants’ intestate was adminis?trator. In the suit of the said Ezra, jun. against the now plaintiff, the latter summoned the present defendants to defend the suit; but judgment was recovered against the plaintiff, and a writ of habere facias awarded and executed.
    In the covenant aforesaid, there is an exception of all * mortgages made by said Ezra Pepper in Ms lifetime, [*117] which are duly recorded in said county of Worcester.
    The defendants were permitted to show, and did show, that the said Ezra Pepper, jun., in the action aforesaid, claimed title to the ands he recovered, under a deed from his father, dated March 21st, 1799 ; which was proved in Court after the death of the said Ezra, the grantor; also, that a bond of defeasance was executed on the same day with the deed, and delivered by said Ezra, jun., to said Ezra, sen.; and they were allowed to prove, and did prove by satisfactory evidence, not contradicted by any evidence on the part of the plaintiff, that, at the time of the execution of the deed of the said administrators to the plaintiff, he well knew of the deed aforesaid to the said Ezra, jun., and also of the bond of defeasance aforesaid ; and that on the day on which the said land was sold to the plaintiff, a computation was made of the encumbrances of the estate, of which there were four; and that one of the four was the encumbrance occasioned by the deed to the said Ezra, jun., and that the plaintiff himself assisted in making the computation, he casting the interest and ascertaining the sum which was due.
    It also appeared in evidence, that two of the four mortgages mentioned as encumbrances upon the" estate, had been assigned tc the plaintiff before the sale; one other was to the plaintiff himself • and the fourth was the deed of the said Ezra, jun., by virtue of which the plaintiff was evicted from that part of the land he purchased, which had been conveyed to the said Ezra, jun.
    The plaintiff contended that the defendants were estopped from setting up the conveyance to the said Ezra, jun., as a mortgage, by virtue of the proceedings in the action aforesaid against him, in which they were vouched to defend his title. He also objected to any paroi evidence of his knowledge of the bond of defeasance, given by the said Ezra, jun., to his father.
    But this objection was overruled by the chief justice, [ * 118 J * before whom the cause was tried; and who was about instructing the jury, that, upon the evidence so given, the conveyance of the said Ezra to the said -Ezra, jun., ought to be taken to be a mortgage, within the exception in the deed to the plaintiff by the administrators of said Ezra, sen., and so that their verdict ought to be for the defendants. Whereupon the plaintiff became nonsuit, reserving the right to move the Court to set aside the non-suit and grant a new trial, on account of the opinion of the chief justice, expressed as aforesaid.
    
      Lincoln and Burnside, for the plaintiff,
    cited Com. Dig. Title Voucher, D. —4 Mass. Rep. 349, Hamilton vs. Cutts & Al., Exrs. —11 Mass. Rep. 27, Stackpole vs. Arnold. —8 Mass. Rep. 146, Townsend vs. Weld.
    
    
      Hastings, for the defendants.
   Curia.

The motion to set aside the nonsuit is overruled. The exception from the operation of the covenants in the deed'is of all mortgages made by Ezra Pepper in his lifetime. The reference to the record may be considered as descriptive, or as an affirmation that all the mortgages were recorded. The deed to Ezra Pepper, jun., Oeing then on record, and the bond of defeasance not being required at that period to be recorded, it was at least ambiguous, whether ihat deed was not considered by the parties as one of the mortgages recorded. And this, we think, lets in the paroi evidence, by which it is clear that this is one of the mortgages intended to be excepted from the covenants.  