25. Crawford v. Mcdonald, 84 public improvement, has been viewed as involving a breach of the covenant.26

It is stated by the leading authority on the subject that the character of the outstanding right or interest is not always sufficient to determine whether it constitutes an incumbrance, within the particular covenant in question, but in some cases the question must be determined by reference to "the subject-matter, of the contract, the relation of the parties to it and to each other, the notice on the part of the purchaser, and, to some extent, the local usage and habit of the country."27 So, in determining whether a certain incumbrance is within the covenant, the whole conveyance is to be considered and not merely the clause containing the covenant. Thus, when the conveyance expressly provides that the grantee will pay the mortgage debt28 or that he takes subject to the mortgage,29 the existence of the mortgage is not a breach of the covenant, though not expressly excepted therefrom, and even in states where a highway is regarded as an incumbrance, though a conveyance of land as bounded by a highway passes the land to the center of the highway, subject to the highway use, the grantor is not liable under his covenant on account of such highway.30 Likewise, if the conveyance is expressed to be subject to an easement, the covenantee cannot assert that the easement constitutes a breach of the covenant.31 And while ordinarily an outstanding lease on the premises has been regarded as an incumbrance,32 a different view has occasionally been taken when the grantor in terms transferred to the grantee and the grantee accepted the benefit of the lessee's stipulations as to rent and the like.33

Ark. 415, 106 S. W. 206; Musial v. Kudlik, 87 Conn. 164, 87 Atl. 551; Wragg & Son v. Mead, 120 Iowa 319, 94 N. W. 856; Barker v. Denning, 91 Kan. 485, 138 Pac. 573; Batchelder v. Sturgis, 3 Cush. (Mass.) 201; Simons v. Diamond Match Co., 159 Mich. 241, 123 N. W. 1132; Fritz v. Pusey, 31 Minn. 368, 18 N. W. 94; Brass v. Vandecar, 70 Neb. 35, 96 N. W. 1035; Malsbary v. Jacobuis, 88 Neb. 751, 130 N. W. 424; Demars v. Koehler, 62 N. J. L. 203, 72 Am. St. Rep. 642. 41 Atl. 720; Grice v. Scarborough, 2 Speers (S, C.) 649, 42 Am. Dec. 391; Brown v. Taylor, 115 Tenn. 1, 4 L. R. A. N. S. 309, 112 Am. St. Rep. 811, 88 S. W. 933; Sawyer v. Little, 4 Vt. 414;

O'connor v. Enos, 56 Wash. 448, 105 Pac. 1039.

26. Tuskegee Land & Security Co. v. Birmingham Realty Co., 161 Ala. 542, 23 L. R. A. (N. S.) 992, 49 So. 378; Forster v. Scott, 136 N. Y. 577, 18 L. R. A. 543, 32 N. E. 976; Evans v. Taylor, 177 Pa. 286, 69 L. R. A. 790, 35 Atl. 635.

27. Rawle, Covenants, Sec. 76.

28. Watts v. Welman, 2 N. H. 458.

29. Freeman v. Foster, 55 Me. 508; Drury v. Holden, 121 111. 130, 13 N. E. 547; Johnson v. Nichols, 105 Iowa, 122; Walther v. Briggs, 69 Minn. 98; Jackson v. Hoffman, 9 Cow. (N. Y.) 271; Brown v. South Boston Sav. Bank, 148 Mass. 300, 19 N. E. 382.

In several cases, the fact that the grantee had orally agreed to pay the taxes has been held to show that the lien for taxes was not within the operation of the covenant,34 and a like view has been taken as to a mortgage the payment of which the grantee had, by an extraneous agreement, assumed.35 In some cases the fact that the grantee had notice, actual or constructive, of a highway upon the land, has been regarded as taking such incumbrance out of the operation of the covenant.36 In two or three

30. Frost v. Angier, 127 Mass. 212; Patten v. Fitz, 138 Mass. 456; Holmes v. Danforth, 83 Me. 139, 21 Atl. 845; City of Cincinnati v. Brachman, 35 Ohio St. 289.

31. Pettee v. Hawes, 13 Pick. (Mass.) 323.

32. Ante, this section, note 25.

33. Mann v. Montgomery, 6 Cal. App. 646, 92 Pac. 875; Hald-ane v. Sweet, 55 Mich. 196, 20 N. W. 902; Pease v. Christ, 31 N. Y. 141. See Musial v. Kud-lik, 87 Conn. 164, 87 Atl. 551. And compare Simons v. Diamond Match Co., 159 Mich. 241, 123 N.

W. 1132

34. Fitzer v. Fitzer, 29 Ind. 468; Blood v. Wilkins, 43 Iowa 565; Gill v. Ferrin, 71 N. H. 421, 52 Atl. 558. Contra, Pierse t. Bronnenberg, 40 Ind. App. 662, 81 N. E. 739; 82 N. E. 126.

35. Watts v. Welman, 2 N. H. 458; Reid v. Sycks, 27 Ohio St. 285. And see post, this section, note 42.

36. Des Vergers v. Willis, 56 Ga. 515, 21 Am. Rep. 289; Crans v. Durdall, 154 Iowa 468, 134 N. W. 1068; Weller v. Fidelity Trust & S. V. Co., 23 Ky. L. Rep. 1136, 64 S. W. 843; Hymes v. Estey, cases the fact that the existence of an incumbrance in favor of an individual was apparent upon an inspection of the land, and that consequently the grantee might be presumed to have known thereof, has been regarded as showing that it was not intended to be covered by the covenant,37 but these cases are exceptional. That the grantee's knowledge of an existing incumbrance in no way relieves him of liability under the covenant by reason thereof has been frequently decided, without any suggestion that such knowledge may be considered for the exclusive purpose of showing that the particular incumbrance was not intended to be covered by the covenant.38

The cases are generally to the effect that extraneous evidence is not admissible at law to show an agreement that a certain incumbrance was not to in116 N. Y. 501, 15 Am. St. Rep. 421, 22 N. E. 1087; Ake v. Mason, 101 Pa. 17; Trice v. Kayton, 84 Va. 217, 10 Am. St. Rep. 836, 4 S. E. 377. So in the case of a public levee, Ireton v. Thomas, 84 Kan. 70, 113 Pac. 306. But that notice of the highway has no such effect, see Copeland v. Mcadory, 100 Ala. 553, 13 So. 545; Hubbard v. Norton, 10 Conn. 423; De Long v. Spring Lake Beach Improvement Co., 72 N. J. L. 125 59 Atl. 1034. And see ante, this section, notes 20, 21.

37. Janes v. Jenkins, 34 Md. 1; Memmert v. Mckeen, 112 Pa. St. 315, 4 Atl. 542; Kutz v. Mccune, 22 Wis. 628, 99 Am. Dec. 85.

38. Anniston Lumber & Mfg. Co. v. Griffis, - Ala. - , 73 So. 418; Eriksen v. Whitescarver, 57 Colo. 409, 142 Pac. 413; Hubbard v. Norton, 10 Conn. 422, 431; Godwin v. Maxwell, 106 Ga. 194, tion,42 but this involves a contradiction of the recital of the consideration, for the purpose of varying a contractual liability, and the view above suggested, that evidence of the assumption is admissible as aiding in the interpretation of the covenant would appear to be preferable.42a Some courts have refused to admit evidence of the oral assumption for the purpose of affecting one's liability upon the covenant.42b volve a violation of the covenant.39 That the parties failed, however, by mistake, to insert such agreed exception in the covenant as written, has been regarded as ground for reformation in a court of equity.40 and occasionally equity has interposed by injunction, on the theory of fraud or mistake, to restrain an action at law on the covenant, when the asserted breach consisted of an incumbrance which the parties had agreed to except from the operation of the covenant.41 Nor, it seems, does the rule excluding evidence of an extraneous agreement excepting an incumbrance from the operation of the covenant necessarily exclude evidence of an agreement by the covenantee assuming an incumbrance, although the effect thereof may be to show that such incumbrance is not within the covenant. Oral evidence is always admissible to aid in the interpretation of a writing, and so, it seems, oral evidence of the assumption is admissible to aid in the interpretation of the covenant, as showing that the covenant was not intended to cover the incumbrance assumed. As before indicated, the admissibility of the oral assumption has occasionally been sustained on the ground that it is introduced merely to show the real considerataylor, 115 Tenn. 1, 112 Am. St. Rep. 811, 4 L. R. A. N. S. 309, 88 S. W. 93:!; O'connor v. Bnos, 56 Wash. 448, 105 Pac. 1039; Levett v. Withrington, Lutw. 97. 39. Rawle, Covenants. Sec. 88, p. 113, note; Holley v. Young, 27 Ala. 203; Doyle v. Emerson, 145 Iowa, 358, 124 N. W. 176; Spurr v. Andrew, 6 Allen (Mass.) 420; Flynn v. Bourneuf, 143 Mass. 277, 58 Am. Rep. 135, 9 N. E. 650; Simons v. Diamond Match Co., 159 Mich. 241, 123 N. W. 1132; Long v. Moler, 5 Ohio St. 271; Crice v. Scarborough, 2 Speers (S. C.) 649, 42 Am. Dec. 391;

32 S. E. 114; Newmyer v. Roush, 21 Idaho, 106 Ann. Cas. 1913D, 433, 120 Pac. 464; Beach v. Miller, 51 111. 206, 2 Am. Rep. 290; Burk v. Hill, 48 Ind. 52, 17 Am. Rep. 731; Yancey v. Tatlock, 93 Iowa, 386, 61 N. W. 997; Helton v. Asher, 135 Ky. 751, 123 S. W. 285; Edwards v. Clark, 83 Mich. 246, 10 L. R. A. 659, 47 N. W. 112; Kellogg v. Malin, 50 Mo. 496, 11 Am. Rep. 426; Burr v. Lamaster, 30 Neb. 688, 9 L. R. A. 637, 27 Am. St. Rep. 428, 46 N. W. 1015; Demars v. Koehler, 62 N. J. L. 203, 72 Am. St. Rep. 642, 41 Atl. 720; Huyck v. Andrews, 113 N. Y. 81, 3 L. R. A. 789, 10 Am. St. Rep. 432, 20 N. E. 581; Long v. Moler, 5 Ohio St. 272; Corbett v. Wrenn, 25 Ore. 305, 3.5 Pac. 658; Funk v. Voneida, 11 Serg. & R. (Pa.) 112, 14 Am. Dec. 617; Grice v. Scarborough, 2 Speers (S. C.) 649, 42 Am. Dec. 391. Brown v.

Butler v. Gale, 27 Vt. 739; O'connor v. Enos, 56 Wash. 448, 105 Pac. 1039. In Indiana such evidence has, however, been admitted. Allen v. Lee, 1 Ind. 58, 48 Am. Dec. 352; Pitman v. Conner, 27 Ind. 337. So in Hlinois. Sidders v. Riley, 22 111. 109; and Idaho, Urich v. Mcpherson, 27 Idaho 319, 149 Pac. 295.

40. Rawle, Covenants, Sec. 88, p. 112; Haire v. Baker, 5 N. Y. 357; Van Wagner v. Van Nostrand, 19 Iowa, 427.

41. Taylor v. Gilman, 25 VI. 411; Sanders v. Wagner, 32 N. J. Eq. 506.