Here was a written contract, by which the plaintiff below agreed to make titles to a certain tract of real estate within certain specified boundaries. The plea is, that the contract has failed; that, in fact, before the bond was made, he had sold a part of the land within the boundaries to another person, and that such person was and still is in possession. This is a clear breach of the bond, and the defendant is entitled to recoup to the amount of the value of the land sold off.
The reply is, this is a small matter covered by the words “more or less.” Were the deficit merely a deficit of land within the bouridaries, this might be true. If it were an error in estimate, if the number of acres could be treated as mere description, this rule might apply. But here is a failure of title to a certain fixed area within the boundaries. The land is there — there are acres a plenty — but the vendor does not own them. We do not think the flexibility of the words *319“more or less” can cover such a case. Nor can parol evidence contradict the deed. The fact tha-t the defendant knew the land had been sold is not, of itself, a reply to the express words of the bond. Men often take warranties, knowing of the defects in the title. The very object pf the warranty is often to meet known defects. The only way to meet this defense by the rules of the common law was to show fraud in the bond, or perhaps mistake.
We recognize the right of either party in a suit at law, under the Code of this State, to set up equitable rights. The defendant may plead in equity and the plaintiff reply in equity. But the plea must be set forth plainly and distinctly. We have given this subject much consideration, and are of opinion that the same rule is to be applied to the plaintiff. If the defendant sets up a legal defense, and the plaintiff has a reply to it not good by the rules of the common law but good in equity, he may reply in this State at law. But he must amend his declaration. The record must show what his reply is. The judgment at law is only conclusive as to legal rights. As to equitable rights, the judgment does not conclude, unless they be in fact determined.
We see, therefore, no way of giving effect to this provision of our law, giving such extensive rights at law, and at the same time preventing injustice, but to require the plaintiff who wishes to reply an equitable right to a legal defense, to put his claim upon the record by amending his declaration.
We think the rules of law were not properly applied by the Judge in this ease, and that there ought to be a new trial.
Judgment reversed.