[310]*310Opinion by
Mr. Justice Moore.
The alleged errors relied upon by the defendant may be divided into two classes: First, the rulings and instructions of the court treating .the action as being for a breach of warranty and not for deceit; and, second, to the rejection of testimony offered by him. The errors assigned under the first class are: 1. In overruling defendant’s motion for a nonsuit. 2. In refusing to instruct the j ury to find for the defendant. 3. In giving the following instructions: “I have already stated to you that the gist of this action is a covenant of warranty against any incumbrance of the land, and we have to look at it in that point of view. If you believe from the testimony that the consideration of the purchase was nine hundred dollars cash, the eight-hundred-dollar note and mortgage, and one thousand dollars for the release of the mortgage upon the property held by the building and loan association, then the defendant became bound to clear the property of all liens, not included in these three items, viz., nine hundred dollars cash, the eight-hundred-dollar note and mortgage of her own making, and the one thousand dollars to the loan company; and, if he failed to do it, or if the one thousand dollars would not do it at that time, and more had to be paid in order to accomplish it at that time, then the defendant is responsible for the amount required to remove the lien of that mortgage, and free the property from incumbrance, and no more. As to what was due on the day of the execution of this deed to satisfy that mortgage, you will remember what the evidence of the witnesses was, whether it was seventeen hundred dollars and some odd dollars, more or less, whichever it was you will remember; and if you find that the agreement concerning the sale was that one thousand dollars only should be paid to the [311]*311loan company by plaintiff, then whatever there was more than one thousand dollars,— whatever was needed on that date besides the one thousand dollars to pay off that claim, together with interest from the date on which the payments were made, should be awarded to plaintiff in this action,—the difference between one thousand dollars and the amount due the loan company at that date.” 4. In rendering judgment against the defendant. If the above instruction, as given by the court, was correct, it will not be necessary to examine the other matters assigned as error under the first class.
1. The complaint contains all the necessary allegations of an action for a breach of the covenant against incumbrances: Ra wle on Covenants, 114; 1 Estee’s Pleading (3d Ed.),.§ 1270. The incumbrance was not excepted from the operation of the covenant, and the fact that plaintiff was aware of its existence when the deed was delivered, would have been no defense: Rawle on Covenants, 117; Medler v. Hiatt, 8 Ind. 171; Snyder v. Lane, 10 Ind. 424.
2. If this action be interpreted as one for a breach of the covenant, it follows that all allegations in relation to the representations of the defendant, his knowledge of their falsity, the intention with which they were made, and the plaintiff’s reliance thereon, were unnecessary and immaterial, and might have been stricken out on motion. Deceit is an action sounding in tort, while covenant arises out of a contract, and a complaint in which they are joined is subject to demurrer: Hill’s Code, §§ 93, 67. The authorities, however, are quite uniform in holding that unless the objection is taken by demurrer, it is waived: Green on Pleading, § 882. The object and purpose of a demurrer in such cases is to compel the opposite party to elect the cause of action or defense upon which he relies, and, as no demurrer to the [312]*312complaint was filed in the case at bar, the court, under the rule that pleadings shall be liberally construed, (Hill’s Code, .§ 84,) was justified in instructing the jury that the gist of the action was the alleged breach of warranty against incumbrances. This view disposes of the errors assigned under the first class.
3. The assignments under the second class are: “ The circuit court erred in sustaining plaintiff’s objection to the following questions propounded to the witness, H. H. Northup, and refusing to permit him to answer the same: “Examine this mortgage, which is marked ‘Plaintiff’s Exhibit D,’ and state, if you know or can tell, how much would be due on that mortgage on August fifth, eighteen hundred and eighty-nine? Under the rules of the association, when would that mortgage become due?” In sustaining plaintiff’s objection to the following questions propounded to the witness, A. C. Mackenzie, and refusing to allow him to answer the same: “ Can you tell when that mortgage would become due?” “Can you tell how much Mrs. Corbett would have had to pay if she had continued her payments on the mortgage until it matured ?” The hill of exceptions shows that “The defendant’s counsel stated that the object of the questions propounded to Mr. Northup was to draw from the witness testimony to the effect that if plaintiff had paid off the mortgage when it became due, instead of paying it off prior to its maturity, she would have been compelled to have paid only the sum of one thousand dollars.” “And that the object of each of said questions propounded to Mr. Mackenzie was to draw out the fact that if plaintiff had held the stock pledged as collateral security with the Franklin Building & Loan Association, until its maturity, or until the maturity of the said mortgage, instead of paying off the said mortgage and surrendering the said stock before their maturity, she would [313]*313have been compelled to pay the sum of one thousand dollars and no more.”
There seems' to be no controversy in relation to the amount that plaintiff was to pay in order to discharge the incumbrance. Both parties appear to agree that one thousand dollars was the correct sum, and hence the true consideration is expressed in the deed; but the defendant contends that this sum was not payable until the maturity of the mortgage, unless the stock held as collateral security for the payment of the loan had reached its par value before that time, while the plaintiff contends that she was to have a perfect title to the property free from all incumbrances, upon the payment of the amount agreed upon. The chief question in issue was: When, under the agreement, was this sum payable? No response to the questions propounded to the witnesses Northup and Mackenzie, with the purpose avowed by counsel could have tended to determine this issue, and besides the mortgage would have furnished the best evidence upon this question.
4. The defendant, for the purpose of mitigating the damages, had the right to show by parol that the plaintiff had assumed and agreed to pay off and discharge the mortgage, as a part of the consideration for the conveyance: Leland v. Stone, 10 Mass. 459; Spurr v. Andrew, 6 Allen, 420; Harlow v. Thomas, 15 Pick. 66; Allen v. Lee, 1 Ind. 58, 48 Am. Dec. 352; Medler v. Hiatt, 8 Ind. 173; Pitman v. Conner, 27 Ind. 337; Fitzer v. Fitzer, 29 Ind. 468; Sidders v. Riley, 22 Ill. 111; Landman v. Ingram, 49 Mo. 212.
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[310]*310Opinion by
Mr. Justice Moore.
The alleged errors relied upon by the defendant may be divided into two classes: First, the rulings and instructions of the court treating .the action as being for a breach of warranty and not for deceit; and, second, to the rejection of testimony offered by him. The errors assigned under the first class are: 1. In overruling defendant’s motion for a nonsuit. 2. In refusing to instruct the j ury to find for the defendant. 3. In giving the following instructions: “I have already stated to you that the gist of this action is a covenant of warranty against any incumbrance of the land, and we have to look at it in that point of view. If you believe from the testimony that the consideration of the purchase was nine hundred dollars cash, the eight-hundred-dollar note and mortgage, and one thousand dollars for the release of the mortgage upon the property held by the building and loan association, then the defendant became bound to clear the property of all liens, not included in these three items, viz., nine hundred dollars cash, the eight-hundred-dollar note and mortgage of her own making, and the one thousand dollars to the loan company; and, if he failed to do it, or if the one thousand dollars would not do it at that time, and more had to be paid in order to accomplish it at that time, then the defendant is responsible for the amount required to remove the lien of that mortgage, and free the property from incumbrance, and no more. As to what was due on the day of the execution of this deed to satisfy that mortgage, you will remember what the evidence of the witnesses was, whether it was seventeen hundred dollars and some odd dollars, more or less, whichever it was you will remember; and if you find that the agreement concerning the sale was that one thousand dollars only should be paid to the [311]*311loan company by plaintiff, then whatever there was more than one thousand dollars,— whatever was needed on that date besides the one thousand dollars to pay off that claim, together with interest from the date on which the payments were made, should be awarded to plaintiff in this action,—the difference between one thousand dollars and the amount due the loan company at that date.” 4. In rendering judgment against the defendant. If the above instruction, as given by the court, was correct, it will not be necessary to examine the other matters assigned as error under the first class.
1. The complaint contains all the necessary allegations of an action for a breach of the covenant against incumbrances: Ra wle on Covenants, 114; 1 Estee’s Pleading (3d Ed.),.§ 1270. The incumbrance was not excepted from the operation of the covenant, and the fact that plaintiff was aware of its existence when the deed was delivered, would have been no defense: Rawle on Covenants, 117; Medler v. Hiatt, 8 Ind. 171; Snyder v. Lane, 10 Ind. 424.
2. If this action be interpreted as one for a breach of the covenant, it follows that all allegations in relation to the representations of the defendant, his knowledge of their falsity, the intention with which they were made, and the plaintiff’s reliance thereon, were unnecessary and immaterial, and might have been stricken out on motion. Deceit is an action sounding in tort, while covenant arises out of a contract, and a complaint in which they are joined is subject to demurrer: Hill’s Code, §§ 93, 67. The authorities, however, are quite uniform in holding that unless the objection is taken by demurrer, it is waived: Green on Pleading, § 882. The object and purpose of a demurrer in such cases is to compel the opposite party to elect the cause of action or defense upon which he relies, and, as no demurrer to the [312]*312complaint was filed in the case at bar, the court, under the rule that pleadings shall be liberally construed, (Hill’s Code, .§ 84,) was justified in instructing the jury that the gist of the action was the alleged breach of warranty against incumbrances. This view disposes of the errors assigned under the first class.
3. The assignments under the second class are: “ The circuit court erred in sustaining plaintiff’s objection to the following questions propounded to the witness, H. H. Northup, and refusing to permit him to answer the same: “Examine this mortgage, which is marked ‘Plaintiff’s Exhibit D,’ and state, if you know or can tell, how much would be due on that mortgage on August fifth, eighteen hundred and eighty-nine? Under the rules of the association, when would that mortgage become due?” In sustaining plaintiff’s objection to the following questions propounded to the witness, A. C. Mackenzie, and refusing to allow him to answer the same: “ Can you tell when that mortgage would become due?” “Can you tell how much Mrs. Corbett would have had to pay if she had continued her payments on the mortgage until it matured ?” The hill of exceptions shows that “The defendant’s counsel stated that the object of the questions propounded to Mr. Northup was to draw from the witness testimony to the effect that if plaintiff had paid off the mortgage when it became due, instead of paying it off prior to its maturity, she would have been compelled to have paid only the sum of one thousand dollars.” “And that the object of each of said questions propounded to Mr. Mackenzie was to draw out the fact that if plaintiff had held the stock pledged as collateral security with the Franklin Building & Loan Association, until its maturity, or until the maturity of the said mortgage, instead of paying off the said mortgage and surrendering the said stock before their maturity, she would [313]*313have been compelled to pay the sum of one thousand dollars and no more.”
There seems' to be no controversy in relation to the amount that plaintiff was to pay in order to discharge the incumbrance. Both parties appear to agree that one thousand dollars was the correct sum, and hence the true consideration is expressed in the deed; but the defendant contends that this sum was not payable until the maturity of the mortgage, unless the stock held as collateral security for the payment of the loan had reached its par value before that time, while the plaintiff contends that she was to have a perfect title to the property free from all incumbrances, upon the payment of the amount agreed upon. The chief question in issue was: When, under the agreement, was this sum payable? No response to the questions propounded to the witnesses Northup and Mackenzie, with the purpose avowed by counsel could have tended to determine this issue, and besides the mortgage would have furnished the best evidence upon this question.
4. The defendant, for the purpose of mitigating the damages, had the right to show by parol that the plaintiff had assumed and agreed to pay off and discharge the mortgage, as a part of the consideration for the conveyance: Leland v. Stone, 10 Mass. 459; Spurr v. Andrew, 6 Allen, 420; Harlow v. Thomas, 15 Pick. 66; Allen v. Lee, 1 Ind. 58, 48 Am. Dec. 352; Medler v. Hiatt, 8 Ind. 173; Pitman v. Conner, 27 Ind. 337; Fitzer v. Fitzer, 29 Ind. 468; Sidders v. Riley, 22 Ill. 111; Landman v. Ingram, 49 Mo. 212. The reason assigned for the introduction of the evidence was not in mitigation of damages, but to negative the covenant, by showing that the mortgage could have been discharged at matruity upon the payment of one thousand dollars, and therefore the defendant was not liable on his covenant. The defendant being liable [314]*314for at least nominal damages, the evidence was properly rejected.
Another reason for rejecting the evidence is that a covenant against incumbrances is broken if the land at the time of the conveyance is subject to an incumbrance not excepted in the deed, which upon its delivery entitles the vendee to nominal damages: Rawle on Covenants, 89. The doctrine is also well settled that if the covenantee has extinguished the incumbrance he is entitled to recover the amount paid for it: Pillsbury v. Mitchell, 5 Wis. 17; Eaton v. Lyman, 30 Wis. 39. As the mortgage to the association was a valid lien upon the premises at the time of the conveyance, not excepted from the operation of the covenant, which plaintiff has discharged, it follows that she is entitled to recover whatever sum she has paid out for that purpose in excess of the amount she had agreed to pay. The judgment of the lower court must be affirmed. Affirmed.