¶1This was an action for breach of covenant of warranty of land. The declaration set out a deed from Wiseman and wife to Shafer, dated February 2, 1872, conveying the premises described, and with covenant against all incumbrances except a mortgage from Wiseman to Thomas D. Gilbert. The declaration then averred a covenant of -warranty of the premises.
¶2*64The declaration thereafter set forth that the mortgage was for $1100, but that by the deed plaintiff assumed and agreed to pay $660, which was considered as part of the purchase money; and that he paid this to Gilbert. That plaintiff sold to Christian Shafer, who conveyed to Samuel T. Potter, the date of the sale to Potter not being set out. It then set out a foreclosure suit in equity and a sale under it made August 8, 1879, to one George M. Miller, and ouster of Potter, who conveyed his right of action to plaintiff.
¶3On the trial plaintiff produced a deed which conveyed the premises subject to the mortgage, of which plaintiff was to assume and pay $660. The remainder of the deed was in the usual form with a covenaut against incumbrances except as described, and covenants of warranty. The deed was rejected for variance, and plaintiff did not ask leave to amend. Judgment was therefore directed for defendant. The deed declared on was a deed of the whole title with warranty equally broad, the covenant against incumbrances being the only qualified covenant. The deed produced conveyed only the equity of redemption, and the warranty only covered what was conveyed. The description of the premises conveyed was certainly very different from that declared on, and the effect of the instrument was in some serious particulars different. The case would have been a very proper one for amendment, and we presume an amendment would have been allowed if desired. Put the variance was palpable and material.
¶4There was no error in the ruling and the judgment must be affirmed with costs.