The plaintiffs seek in this suit the specific performance of a written contract duly executed by the defendant, dated May 18, 1865, wherein he covenanted to convey to them a certain tract or parcel of land in township number twenty-seven, middle division in the county of Hancock, provided they pay to the defendant their two notes dated December 20, 1864, for $907.50 each, the first on demand and the second in one year.
It appears that the first note was paid and that December 20, 1865, they tendered to the defendant the principal and interest due on the other note and demanded of him a deed according to the terms'of his obligation which he refused to execute and deliver. 55 Maine, 87.
If the case terminated here there could be no question but that the prayer of the bill should be granted. But the answer and the evidence introduced by both parties disclose certain facts which demand consideration.
It appears that the terms of the defendant’s obligation were to convey by a deed in fee with warranty against the lawful claims and demands of all persons claiming by, through or under him:
Now at this time the evidence discloses there was in existence a written permit from defen lant to Martin and Barlow Hall to cut and haul pine and spruce timber from the land covenanted to be *43conveyed for a period of three years from December 1863. This, therefore, was an incumbrance which the defendant was unwilling to warrant against in the demanded deed, and in his answer and deposition asserts that at the time his obligation was executed and delivered that fact was distinctly disclosed to the obligees and by them or one of them understood as an incumbrance not to be embraced in his covenants.
It would have been questionable whether this testimony was admissible to vary the written obligation if it had been seasonably objected to. But the objection of plaintiff’s counsel in his argument comes too late, especially since by their own showing they admit that the incumbrance was to be excepted, and the parties only ' disagree as to the period it was to continue. The one contended for two and the other for three years, and here arises a conflict in the testimony. But we think that on the part of the defendant preponderates, so that at the time the contract to convey was made it was understood by the parties, that the incumbrance created by Hall’s permit should be excepted in the covenants of warranty but was omitted to be inserted by mistake. Even the plaintiffs admit such to have been the fact as to a period of two years and claim damages for the third year. The defendant therefore was justified in refusing to deed without guarding against the incumbrance.
The defendant claims damages for lumber cut on the land before the date of the written contract, but only it seems by way of offset, which he is willing to relinquish provided the plaintiffs’ claim for damages, as we have found, should not prevail.
The bill is sustained and a decree must be entered that the defendant perform his contract with the incumbrance excepted upon payment of the second note according to its tenor, which would have been without interest since the tender had the same been kept good, but the subsequent demand by Mr. Hale and refusal operated otherwise. Neither party to recover costs.
Decree accordingly.
Appleton, O. J., Walton, Dickerson, Barrows and Daneorth, JJ1, concurred. Peters, J., having been of counsel did not sit.