Beach

delivered the opinion of the Court.

This was an action to recover damages for the breach of a covenant under seal, to convey certain lots in the City of Marysville.

On the trial of the cause, the defendants offered to show, *316 that they had. conveyed one of said lots to a third party, at the verbal direction and request of the plaintiff, and also offered in evidence a receipt signed by the plaintiff [316] for the “deeds to *saidlots described in said bond,” which testimony was excluded by the Court, and a judgment rendered for the plaintiff.

The only question involved in this case is, whether a covenant, under seal, can be altered or rescinded by parol, before it has been broken ?

The decision of the Court below proceeds upon the ground that there is no difference between a parol executory, and an executed contract.

"We are aware of the general rule laid down by writers on this subject, that, in case of a specialty, a subsequent parol or even written agreement, not under seal, dispensing with or varying the mode of performance of an act covenanted to be done, cannot be pleaded in bar to an action on the deed for non-performance of the act in the manner prescribed.

This…