The opinion of the court was delivered by
Bennett, J.'This case comes before us upon exceptions taken on the jury trial. The defendant, after having pleaded non est factum, further pleaded that he had kept and performed his covenant, and, upon this plea, the parties are at issue. The evidence of Phineas Dodge, to show a payment of the mortgage upon the premises, which was outstanding when the deed was executed by the defendant, before the commencement of this suit, is not pertinent to the issue. If there was a mortgage upon the land, the covenant against incumbrances was broken when made, and though the incumbrance was afterwards raised, yet,’this does not tend to prove that there has been no breach of the covenant.
Whether the payment of the mortgage to the Messrs. *440Hutchins, before suit brought, could, by an appropriate plea, be interposed in bar of the action, or whether it is only matter in mitigation of damages, it does not become necessary to decide ; nor whether Dodge was incompetent as a witness, from the circumstances in which he was placed.
The judgment of the county court is reversed.