Opinion by
Thе parties will be referred to as they appeared in the trial court where plaintiffs in error were defendants and defendant in error was plaintiff.
This action was commenced by plaintiff in order to obtain a money judgment for default on a promissory note and to foreclose on a deed of trust. The answer interposed the defensе of tender of payment, and a counterclaim alleged breach of various covenants contained in a warranty deed which was the original consideration for the note. In reply to the answer and counterclaim the tender of payment was denied and the statute of limitations was interposed as an affirmative defense to the breach of covenants. Judgment was entered for plaintiff and the counterclaim was dismissed.
The facts involved in this controversy are as follows: On September 13, 1950, defendants, husband and wife, entered into an agreement with plaintiff and one George S. Park (who is not a party to this action) wherein defendants agreed to buy and plaintiff and Park agrеed to sell a certain ranch located in Rio Blanco County, *189 Colorado, consisting of approximately 360 acres, together with certain ranch equipment, water rights and one-fourth of the mineral and oil rights. The purchase price was $31,500.00. On signing the purchase contract the defendants paid $1,000.00 and agreed to a $10,000.00 down payment which inсluded the $1,000.00 earnest money, and to periodic payments of the balance. On October 2, 1950, the transaction was closed. Plaintiff and Park delivered a warranty deed to defendants wherein the land was described by reference to government survey as follows:
“North Half of the Northwest Quarter and the Northeast Quarter of Section 25, Township 1 North, Rаnge 95 West and Lots 1 and 2 and the Southeast Quarter of the Northwest Quarter, Section 30, Township 1 North, Range 94 West, 6th Principal Meridian * * * .”
The deed also contained the customary covenants of seisin, right to convey, quiet possession, and warranty, and through mistake included 3.109 acres previously deeded to the Brentons as more fully hereinafter set out.
Concurrently with the delivery of the deed defendants executed and delivered to plaintiff their promissory note for $21,500.00 as the remaining unpaid balance of the purchase price. The note was payable in annual installments of $1,000.00 each commencing December 1, 1951, and yearly thereafter. It provided for interest at the rate of 5% per аnnum from the date of execution until the due date, and after the due date interest at the rate of 7% per annum until paid. The note also contained an acceleration clause in the event of failure to pay any installment of principal or interest, and a provision respecting costs and attorney’s fees. The acceleration clause read:
“Any failure to pay installment of principal or interest when due shall cause the whole note to become due and payable at once, or the interest to be counted as principal, at the option of the holder of the note, and it shall not be necessary for the holder to declаre the same due, *190 but he may proceed to collect the same as if the whole was due and payable by its terms.” (Emphasis supplied.)
As security for the note defendants executed to plaintiff a deed of trust covering the same property. Both the warranty deed and deed of trust were property executed, acknowledged, delivered, and recorded.
Some time before the delivery of the warranty deed to defendants the plaintiff and George Park conveyed by warranty deed to Everett J. and Merle E. Brenton 3.109 acres of the aforesaid property, same being included within the following description:
“A parcel of land tying in Tract 101A of Sections 19 and 30, Tp. 1 North, Range 94 Wеst of the 6th P.M., Colorado, and more particularly described by metes and bounds as follows, to-wit: * * * .”
The Brenton deed was dated November 4, 1948, and was recorded on December 20, 1949.
There are two houses on the 3.109 acres, but they were never examined by defendants prior to their ranch purchase. Defendants were never put in possession of the 3.109 acres but did move into possession of the balance of the ranch. On September 15, 1954, primarily due to the defendants’ deed from plaintiff and Parks, the Brentons commenced a quiet title action for an adjudication of their rights in the parcel of land conveyed to them. Both the present plaintiff and defendants were named as defendants in that action and were personalty served with process, but failed to appear. Consequentty on December 13, 1955, the Brentons were declared the owners in fee simple of the 3.109 acres and their title was quieted as to the defaulting parties.
Defendants in the meantime had made payments on the note to the extent of reducing their indebtedness to $13,500.00 with interest paid as of December 1, 1956. Payments ceased after December 1956, and in December 1957 plaintiff referred the note to an attorney for collection. On December 28, 1957, plaintiffs attorney wrote *191 a letter to defendants stating that because of defendants’ default the note was accelerated and payment in full was demanded, including attorney’s fees, 7% interest, collection expenses and costs. Defendants assert that on December 30, 1957, prior to the receipt of plaintiff’s letter mailed on December 28, 1957, defendants, through their attorney, tendered plaintiff’s attorney, in a telephone conversation, an installment of interest and principal due at that time in the amount of $1,681.98, but that this tender was refused.
Plaintiff commenced this action on May 12, 1958. He sought: (1) to obtain a money judgment on the note for an amount including the $13,500.00 balance on the principal, interest at 5% from December 1, 1956, to the date of the complaint, interest on the total of principal and interest from the date оf the complaint to the date of judgment at 7%, and attorney’s fees in the sum of $1,000.00 and costs of suit; and, (2) to foreclose the deed of trust. In addition to the above defendants, Earl Jones in his capacity as public trustee of Rio Blanco County, and the First National Bank of Rifle, Colorado, as holder of a junior deed of trust, were named as defendants. Both Jones and the bank defaulted. Defendants answered and counterclaimed. In their answer defendants denied that the indebtedness on the note had matured, that the interest was chargeable at the rate of 7%, or that plaintiff was entitled to attorney’s fees in any amount. The alleged tender of payment on December 30, 1957, was set up as a defense to the claimed default. By counterclaim defendants alleged that by virtue of the Brenton quiet title decree in December 1954, affecting the 3.109 acres, plaintiff had breached the covenants of seisin, right to convey, peaceable possession, and warranty contained in the deed executed and delivered to defendants on October 2, 1950. Therefore defendants demanded that plaintiff take nothing by his complaint except the $13,500.00 principal balance together with interest at 5% from December 1, 1956, and that defend *192 ants have judgment against plaintiff for $8,500.00 in addition to $100.00 per month from October 2, 1950, to the date of judgment, with interest and costs for their alleged damages in lieu of the 3.109 acres sold the Brentons. Plaintiff’s reply to the answer and counterclaim denied the validity of defendants’ tender and set up as affirmative defenses to the alleged breach of covenants, the statute of limitations, waiver and estoppel.
Trial was to the court which, after hearing evidence from both sides, entered judgment for plaintiff for $16,327.29 as unpaid principаl and interest on the note, attorney’s fees for $1,000.00 and costs of suit, and decreed a foreclosure of the deed of trust. The court likewise found that the defendants’ defense of tender of payment had not been proved by a preponderance of evidence, and that the counterclaim for breach of covenants was barred by the statute of limitations. Defendants are here by writ of error and assert the following grounds for reversal:
(1) That the offer of payment by defendants to plaintiff on December 30, 1957, amounted to a tender of payment which was sufficient to relieve defendants from the acceleration and penalty provisions of the note. Defendаnts also urge that an effective and valid tender to plaintiff was made in their answer.
(2) That the covenants in the warranty deed from plaintiff were not breached until December 13, 1955, the date of the quiet title decree, hence the counterclaim is not barred by the statute of limitations.
(3) That since defendants did not receive 360 acres but rather 356.891 аcres, there was a partial failure of consideration, consequently plaintiff should not be permitted to recover the full purchase price as represented by the note, or to foreclose on the deed of trust.
We will address ourselves to these contentions in the above order.
I.
Plaintiff directs our attention to the fact that in *193 defendants’ motion for a new trial they wаived the question of tender before the trial court. Defendants so admit in their reply brief. Having waived it in the trial court, defendants cannot re-assert it on writ of error, hence we will not consider it here. R.C.P. Colo. Ill (f).
II.
Defendants next contend that their counterclaim for breach of covenants was not barred by the statute of limitations. They urge that sincе C.R.S. ’53, 118-1-21, provides that covenants of seisin, peaceable possession, and warranty run with the land, these covenants are covenants in futuro; therefore they were breached not when made on October 2, 1950, but on the date of the quiet title decree on December 13, 1955.
At the outset we point out that the applicable statute of limitations is not the six year statute, C.R.S. ’53, 87-1-11, as defendants urge, but the three year statute, C.R.S. ’53, 87-1-8.
Hayden v. Patterson,
The counterclaim alleged breach of the сovenants of seisin, right to convey, peaceable possession, and warranty. The covenant of seisin is regarded in legal effect as a covenant of title as well as a covenant of possession. The covenant of right to convey has also been held to be practically synonymous with the covenant of seisin. 7 THOMPSON ON REAL PROPERTY §3687 *194 (1940). Similarly, thе covenant of warranty (in an action for breach) is synonymous with the covenant of peaceable possession or quiet enjoyment. Hayden, supra; 7 THOMPSON, supra, §3740. Thus we can resolve the issue under discussion by restricting ourselves to the covenants of seisin and warranty.
The generally accepted rule is that a covenant of seisin is broken, if at all, when it is mаde. 7
THOMPSON,
supra, §3687; 6
POWELL ON REAL PROPERTY,
253 (1958); III
AMERICAN LAW OF PROPERTY
§12.127 (1952). Although the point has never been decided in Colorado within the context of C.R.S. ’53, 118-1-21 (see
Stone,
supra), on innumerable occasions the general rule that the covenant of seisin is broken when made has been recognized.
Hayden,
supra;
Seyfried v. Knoblauch,
As to the covenant of warranty, the rule is that it is broken when the covenantee suffers an eviction. See
Hurd v. Smith,
In this case the defendants wеre never actually put in possession of the 3.109 acres. It is obvious from the quiet title action that the Brentons would not have surrendered this property to defendants even if defendants had attempted to obtain possession. Consequently, the possession of the 3.109 acres by the Brentons under a title paramount to that of defendants constitutеd a breach of the covenant of warranty by the grantors upon the delivery by them of the warranty deed on October 2, 1950. The counterclaim for breach of warranty on this ground is therefore barred by the three year statute of limitations. Hayden, supra; Stone, supra.
Finally, with respect to the applicability of C.R.S. ’53, 118-1-22, we need to comment further. This statute provides as follows:
“Nо right of action shall exist upon a covenant of warranty against a warrantor when possession of the premises warranted has been actually delivered to or taken by the warrantee, until the party menacing the possession of the grantee * * * shall have commenced legal proceedings to obtain possession of thе premises in question, and the grantor, after notice, shall have refused to defend, at his own cost, the premises in such action.”
In their brief defendants urge that by virtue of this statute their cause of action for breach of warranty did not accrue until the date of the Brenton quiet title decree on December 13, 1955.
We note that the statute requires the covenantee to be actually menaced in his possession by virtue of legal proceedings commenced against him by a third party. Where, as here, the covenantee was never in possession he cannot be menaced in his possession with
*196
in the meaning of the statute. In such circumstances the statute is inapplicable.
Tierney v. Whiting, 2
Colo. 620 (1875); compare
Ernst v. St. Clair,
III.
Defendants finally urge that since plaintiff and Parks conveyed 3.109 acres less than agreed that this constituted а partial failure of consideration which should prevent plaintiff from recovering the full purchase price on the note and from foreclosing on the deed of trust. Plaintiff asserts on the other hand, that the record fails to disclose precisely how much acreage defendants did receive and that their proper course was to have brought an action to correct their deed within a reasonable time. Be this as it may, the contention of defendants is not, as we understand it, that plaintiff was precluded from pursuing concurrent remedies under the note and deed of trust. For such concurrent enforcement of remedies is generally sanctioned by the law. 10 THOMPSON, supra, §5127. Rather defendants seem to urge that the alleged defense of partial failure of consideration can be interposed to plaintiff’s foreclosure on the purchase money deed of trust.
Defendants, however, must also fail here for they cannot avoid application of the rule that failure of consideration is an affirmativе defense which, if not pleaded, is waived. Colo. R.C.P. Rule 8 (c) and Rule 12 (h). A careful review of the record in this case indi
*197
cates that such defense was neither pleaded nor raised at any stage of the trial court proceedings. We have also stated on numerous occasions that issues not raised in the trial court cannot be raised for the first time on writ of error. See for example:
Friedrichs v. Midland Co.,
The judgment is affirmed.
Mr. Chief Justice Day and Mr. Justice Frantz concur.