The covenant under which damages are to be recovered in the present case is, that the premises were free from all incumbrances. This covenant would be broken if a third person had at the time of the conveyance a right to or interest m the land granted, which diminished the value of the absolute interest in the same, while it was consistent with the passing *422of the fee by the deed. Prescott v. Trueman, 4 Mass. 627. It appears that at the time of making the conveyance of the land in question there was a right in one Salmon K. Norton to cut and remove the wood from a portion of it within a certain time This outstanding interest was not of such character as to defeat the conveyance to the plaintiff, upon the ground that it was made by a party disseised. The plaintiff by force of his deed took a seisin of the whole premises, but subject to the outstanding, incumbrance in Norton, and with the right to recur to his warrantor for his damages in consequence thereof.

The defendant now seeks to introduce oral evidence to prove that the plaintiff knew of this incumbrance, and that it was agreed by the parties that the wood so reserved and held by Norton should not be included in the sale and conveyance, and that both the plaintiff and defendant instructed the scrivener who prepared the deed so to draw the same.

This evidence was wholly incompetent. Its admission would be in violation of the well settled principle that conveyances of real estate cannot be varied or controlled by oral evidence. It was rejected, in a case presenting all the reasons for its admission which exist in the present case, in Harlow v. Thomas, 15 Pick. 66, where the subject was fully considered and the authorities reviewed. In the later case of Noble v. Bosworth, 19 Pick. 314, oral evidence to control the deed upon the ground of a mutual understanding that certain fixtures were not to pass by the conveyance, was held inadmissible.

The case of Leland v. Stone, 10 Mass. 459, is relied upon by the defendant’s counsel as an authority for the admission of this evidence, at least in reduction of damages. That case was considered by the court in the case of Harlow v. Thomas, ubi supra, but was not supposed to conflict with it. It was a case of a breach of covenant of seisin where nothing passed by the deed, and the covenant of seisin was the only covenant that had effect. There the damages being the consideration money, the court allowed oral evidence to show that nothing was paid for a certain parcel of land as to which the grantor was disseised, the same being part of the whole premises described.

*423So far as that case may be supposed to infringe upon the rule excluding oral evidence, when offered to control or contradict the deed itself as the proper evidence of the contract between the parties, it is not to be extended. Under the equity powers conferred upon this court, full opportunity is afforded for parties aggrieved by the fact that their contracts, as drawn and executed, were the result of accident or mistake, and not such as to give effect to the real contract intended to be made, to apply to this court to have the same reformed and corrected. In that way, proper relief may be granted.

As this case is now presented, the facts proposed to be shown, and which are set forth in the answer, cannot avail the defend ant.

Demurrer to the answer sustained