Mann

Plaintiff sued to recover for an alleged breach of the implied covenant against encumbrances of a grant, bargain and sale deed, and obtained judgment for the sum of $600 as damages therefor. This appeal by defendant is from the judgment and the order denying defendant’s motion for a new trial.

Plaintiff, after alleging the execution and delivery by defendant to plaintiff, on the ninth day of January, 1904, of a grant, bargain and sale deed of a certain tract of land situate in Contra Costa county, set up a breach of the implied covenants thereof in this, that on the fifth day of October, 1903, defendant had leased the said premises to one Thomas Fowler for the period of one year ending September 30, 1904, for the sum of $600, which it is alleged had been collected by de fendant, and that plaintiff had been deprived of the possession of said premises by the lessee under said lease.

Defendant in his answer admitted the execution and delivery of the said grant, bargain and sale deed, but set up that at the same time, and as a part of the same transaction, he assigned and set over to plaintiff said lease to Fowler, and that it was fully understood and agreed that the conveyance of…