The declaration is for breaches of the covenants in a deed of certain lots in Brockton, Mass., is in two counts, and is demurred to generally. Both counts allege an eviction by the city under an agreement of the defendant to give five feet from the front of said lots for widening the street. This is set up in the first count as a breach of each of the several covenants, and in the second count, as a breach of the covenant against incumbrances: The defendant’s agreement, as set up in both counts, is dated April 10, 1897, and is upon condition that the work be done that year. His deed to tbe plaintiff is dated September 9, 1899. There is no allegation of the time when the city entered upon the premises. If the entry was after the time limited it was not by virtue of any right conferred by the agreement. The agreement did not constitute an incumbrance when the deed was given, for the time allowed for an exercise of the right had then expired.
Judgment affirmed and cause remanded.