The; ruling at the trial was clearly right, that so much of the consideration of the quitclaim deed as was to be paid when Howe’s title was extinguished was not yet due and payable, and could not be recovered in this action, because Howe’s title was not shown to be extinguished. But there was some evidence tending to show that it was agreed that $100 of the purchase money should be paid down when the quitclaim deed was executed. Two witnesses testified to such an agreement ; and the evidence upon that point should have been submitted to the jury, unless there was some other legal objection to the maintenance of the action.
But if the jury had found upon the evidence that the defendant promised to pay $100 to the plaintiffs on the delivery of the quitclaim deed, the plaintiffs could have maintained their action to that extent, unless, 1. there had been no consideration for the promise to pay the $100 or, 2. the consideration had failed ; or, 3. the defendant had a valid claim against the plaintiffs *126which, to avoid circuity of action, could be made available in recoupment of damages.
There was certainly a valid consideration for the promise to pay the $100. The quitclaim deed conveyed the equity of redemption, and the defendant entered under it, and has not since been disturbed in his possession. The mortgage to Howe, although he had entered under it for the purpose of foreclosure, was not foreclosed.
The same consideration shows that there was no total failure of consideration. The defendant took by his deed an estate in the land, which he has since held and enjoyed.
The only question which presents any difficulty is that -which relates to the plaintiffs’ covenant. This covenant is peculiar It is not a covenant that there were no incumbrances when the deed was made, but a limited covenant “ to warrant and defend ” from all incumbrances made by the grantors, but not otherwise. As against the Howe mortgage, it is a covenant to warrant and defend. But although Howe had entered for the purpose of foreclosure, and had recorded his certificate of entry under the statute, so that in three years the foreclosure would be completed, he has not evicted the defendant, npr has the defendant in any manner recognized or yielded to his paramount right. If the plaintiffs’ evidence were believed, it might even be doubted whether Howe has been holding or claiming to hold possession under his entry for the purpose of foreclosure. If the plaintiffs gave up to Howe the paper-mill estate which they had contracted to purchase, under an agreement that giving it up and abandoning their contract should be a satisfaction of the mortgage notes, it would be at least questionable whether any foreclosure of the mortgage, binding on the plaintiffs, could afterward be enforced by Howe. It would be the case of a mortgagee who had taken and recorded formal possession under his mortgage, receiving full satisfaction of the mortgage debt before foreclosure, and leaving the mortgagor in undisturbed possession thereafter, though without discharging the mortgage, or doing any other act in relation to the estate. Whatever might be the effect of the record in favor of a subsequent grantee of the *127mortgagee without notice, as betxveen the original parties it would seem that equity could not regard the possession as continuing for the purpose of foreclosure in such a case. At least, it would be evidence of a reinstatement of the mortgagor’s possession.
But as the defendant entered under his deed, with a warranty against Howe’s mortgage, and has not been evicted or disturbed, we do not think it so far certain that he has any right of action against the plaintiffs on their covenant, as to allow him to use it as a defence to this action. Exceptions sustained.