The opinion of the court was delivered by
Kellogg, J.Upon the hearing in this case several objections have been taken to the ruling of the court below, which are now to be considered.
1. It is insisted by the plaintiff, that the defendant cannot avail himself of the claim arising from the breach of the covenant against incumbrances, contained in the deed of Haven to the defendant, by way of defence to this suit, under the plea of the general issue. Supposing the note in suit to have been given as part consideration for the deed from Haven to the defendant, which seems highly probable, (though the fact does not distinctly appear,) yet even in that event it is believed that the incumbrance, created' by the mortgage of Bacon and Haven to Adams, could not be given in evidence under the plea of the general issue. For upon that supposition the defendant, when he executed the note, took for it the deed of Haven of Certain lands, with the usual covenants of warranty, and if he would rely upon a breach of those covenants, he must plead the same specially.
2. It is farther insisted, that, inasmuch as the plaintiff is the bona fide endorsee or holder of the note, the defendant cannot avail -himself of the claim, arising from the incumbrance created by the mortgage of Bacon and Haven to Adams, by a plea of set off; or at least only to the extent of nominal damages. It was admitted in argument, and is unquestionably true, that the proviso to the first section of the statute of 1798, entitled “ An act allowing endorsees to maintain actions in their own names,” secures to defendants the right to plead an offset of all demands proper to be plead in offset, which they may have against the original payee or payees before notice of such endorsement, against the endorsee or endorsees; and *210had this proviso continued in force, until the claim set forth in the defendant’s plea in offset had accrued by the payment of the money for the extinguishment of the incumbrance, there would seem to be no doubt, but that the defendant would be entitled to set off the entire amount, so paid, against the plaintiff’s demand, unless the intervening transfer of the note in suit by Haven to the plaintiff, and notice to the defendant of the same, would deprive him of that right, or limit his claim to nominal damages, or to the amount actually paid anterior to such notice. But the proviso to the first section of the statute of 1798 was repealed by the statute of Nov. 17, 1836. This repealing act, however, contains a providing clause, “ That nothing in this act shall impair any right which had accrued under the act to which this is an amendment.” To determine, then, whether the defendant can avail himself of his plea of set off in the present case, it becomes necessary to enquire what right had accrued to the defendant anterior to the repealing act of 1836, and whether that right was affected by notice of the transfer of the note in suit by Haven to the plaintiff.
The deed of Haven to the defendant, containing the covenants upon which he counts in his pleas in offset, was executed on the thirty first day of March, 1836, and the mortgage of Haven and Bacon to Friend Adams, which constitutes the incumbrance of which the defendant complains, was executed the twenty seventh day of November, 1829, and was a lien upon the premises at the time of the conveyance by Haven to the defendant. The defendant, then, had a right to institute his suit against Haven, upon his covenant against incumbrances, immediately upon the receipt of his deed from Haven, and would have been entitled to recover nominal damages, at least, without an extinguishment of the incumbrance. This covenant was broken immediately upon the execution of the deed. Prescott v. Trueman, 4 Mass. 627. The right thus secured by the statute of 1798 was clearly within the saving clause of the repealing act of 1836.
3. It is farther insisted by the plaintiff, in argument, that the right thus saved to the defendant does not extend to the subsequent payments, made by him in March, 1842, to extinguish the incumbrance. But the court cannot assent to this proposition. The right of the defendant to claim of Haven the extinguishment of the prior *211incumbrance existed immediately upon the execution of Haven’s deed to the defendant; and upon his failure to do it, the defendant had a right at any time to extinguish the incumbrance and claim remuneration of Haven for the same; in which event the amount he would be entitled to recover would be the amount paid for the ex-tinguishment of the incumbrance. How could the defendant extinguish this incumbrance? We know of noway, but by paying the amount of it to the mortgagee, or his representatives. Nor would the transfer of the note in suit to the plaintiff, in November, 1836, and notice of the same to the defendant, defeat this right of the defendant, inasmuch as the right existed and had accrued to the defendant, anterior to the transfer and notice.
4. But it is farther insisted, that, inasmuch as the defendant, upon his paying the amount of the incumbrance to the representatives of the mortgagee, took an assignment of the demands, he is to be regarded as a purchaser, and not as having paid off the incumbrance.
This objection appears to have in it more of technicality than soundness. It cannot be denied that the defendant paid the amount of the incumbrance, to pvevent being evicted from the premises; and although he took a transfer of the demands, the effect of which was, for the time being, to keep them on foot against Haven and Bacon, yet we see no objection to his treating it as payment, which he does by pleading it in offset; and upon its allowance here, it will effectually prevent his enforcing the same against Haven or Bacon.
The judgment of the county court is affirmed.