This is a suit to recover on cove* nant of warranty against encumbrances.
The defendants sold to-plaintiff certain real estate *568on the 29th of November, 1905, receiving payment of f500 cash at the time, residue to be paid March 1, 1906, at which time defendants should deliver a general warranty deed conveying the land to plaintiff upon the payment by him of the residue of the purchase money. At the time of said purchase the land was in the possession of a tenant, whose term was to end also on March 1, 1906. By the terms of the agreement of sale of the land defendants were to receive the rents and profits of the land until said date.
On the said last-named date, defendants tendered a general warranty deed conveying the land and demanded the residue of the purchase money. Plaintiff refused to make payment so demanded until defendants removed the tenant from the land and delivered the actual possession to himself. After some delay defendants offered to pay back to plaintiff the full amount of the money he had paid on the purchase price if he would cancel the contract of sale; or that he would accept the premises in its then condition, in possession of the tenant, and release them from all claims for actual damages.
After having first refused the offers, plaintiffs went away to consult his lawyer and came back in a short time when defendant said to him: “Here is the deed duly executed, and you will have to take the deed, Mr. Kneib, with Conner on the place, or here is your money, five hundred dollars in cash, that you have paid; I am willing to give you either one, and you can take your choice, but I cannot give you possession of the place at this time; that is the absolute possession.” Plaintiff did not say Avhether he accepted her offer or not but paid the residue of the purchase price and took the deed.
The finding and judgment were for the defendant and plaintiff sued out his writ of error.
It is true, as contended by plaintiff in error, that parol contemporaneous evidence is not admissible to contradict or vary the terms' of a valid written agreement. But the purpose in admitting the parol evidence, *569as to what was said and done by tbe parties a.t tbe time of the delivery of tbe deed, was not to vary the terms of tbe instrument; but if that was its effect it was inadmissible.
It is plain that where plaintiff accepted tbe deed and paid tbe remainder of tbe purchase price that be did so upon tbe terms upon which tbe deed was tendered, viz., with Conner in possession. Although be did not say that be so accepted it, yet it was tendered with that condition and bis act of acceptance was with tbe conditions attached.
Tbe argument of defendants, that such acceptance was a waiver of the warranty, in our opinion is not sound. We do not think it can be said with good reason that an oral agreement so made could have tbe effect of waiving tbe conditions of tbe deed made at tbe same time. Tbe deed speaks for tbe parties and expresses tbe contract of tbe parties and includes all prior and contemporary agreements.
But notwithstanding such is the law we do not think it is controlling under tbe facts of this case. Tbe terms upon which tbe deed was tendered and accepted did not in our opinion tend to contradict or waive tbe condition of warranty against incumbrances.
Although defendants were not in tbe actual, they were in tbe constructive possession of tbe land; and offered in lieu of tbe actual possession, tbe constructive possession, and plaintiff by bis act accepted it . as such. He succeeded to all the rights of tbe defendants in and to tbe land including tbe right of possession. In other words be agreed to accept Conner as bis tenant, and tbe tenant was bound to pay tbe rent to plaintiff as tbe .purchaser of tbe land, and tbe plaintiff thereby became bis landlord. [R. S. 1899, p. 903, sec. 4136.]
It is contended, however, there was no consideration- for tbe agreement. It was not a new agreement that required any consideration. Defendants were bound by tbe terms of tbe contract to put plaintiff in *570possession at the time they delivered the deed or he able to do so at once for a failure of which there would have been a breach of the covenant against encumbrances occurring contemporaneously with such delivery. At the time the deed was delivered and accepted defendants tender to the plaintiff their constructive possession which he accepts and becomes thereby the landlord of the tenant Conners. Had such tenant attorned to a stranger then it would have been void and would not have in anywise effected the possession of the plaintiff. [E. S. 1899, sec. 4112.] Instead of requiring actual delivery the plaintiff accepts constructive delivery. If we are right in this conclusion theré was no breach of the covenant against encumbrances at the time of the delivery of the deed. It did not require any new consideration. It was performance on the part of defendants and acceptance on the part of plaintiff of a subsisting contract. We are persuaded that the encumbrance complained of did not exist at the time of the delivery of the deed having been removed by the agreement of the parties. For the reasons given the cause is affirmed.
All concur.