[5] ID. STATUTORY MODE OF PLEADING NOT EXCLUSIVE.-While section 458 of the Code of Civil Procedure provides that the statute of limitations may be pleaded as a bar to any action, by giving the number of the section and subdivision' thereof relied on, such mode of pleading is not exclusive. APPEAL from a judgment of the Superior Court of Los Angeles County. Louis W. Myers, Judge. Reversed. The facts are stated in the opinion of the court. Henry T. Gage and W. I. Gilbert for Appellants. B. J. Bradner for Respondent. SHAW, J.-In this action plaintiff sought to recover for damages alleged to have been sustained by the wrongful acts of defendants in constructing and maintaining certain embankments and dikes on their right of way, as a result of which and lack of sufficient culverts therein, the waters of a natural wash were obstructed and diverted from their usual course and the flow thereof precipitated upon his land; and also sought a decree enjoining defendants from maintaining such obstruction, which, if continued, it was alleged would cause him irreparable damage. In accordance with demand therefor, a jury was impaneled, to which the issue as to damages was, upon evidence adduced and instructions given by the court, submitted, as a result of which it rendered a verdict in favor of defendants. Thereafter, notwithstanding such verdict and in disregard thereof, the court made findings upon all the issues and upon which it awarded plaintiff two thousand five hundred dollars damages sustained, and made a decree perpetually enjoining defendants from maintaining the obstruction by means of which it. was alleged defendants had wrongfully diverted the flow of water upon plaintiff's land. From the judgment and decree so rendered, defendants have appealed. [1] Defendants' first contention is that the parties were entitled as of right to a trial by jury of the issue at least as to the damages alleged to have been sustained, and that its verdict was binding upon the court which, in the absence of proceedings for a new trial, had no power to vacate and set aside the same. This identical question was before this court in the case of Farrell v. City of Ontario, 39 Cal. App. 351, [173 Pac. 740], wherein the Honorable Louis M. Myers, as justice pro tem. (who presided as trial judge in the instant case), in an exhaustive opinion reviews a number of divergent authorities of this state touching the question, as a result of which it was held that in an action for damages and for an injunction for the abatement of a nuisance, the parties are entitled to a jury trial upon the issue as to damages [2] and where such trial is had, the general verdict thereon is binding upon the court, which has no power to vacate it except upon motion for new trial. We refer, without further discussion, to that opinion and the authorities referred to therein as determinative of the question. [3] In their answer, "for a second, further, separate, and distinct defense," defendants alleged "that all of said improvements, in so far as the general right of way of the said defendants, including the improvements of ditches described in plaintiff's complaint, is concerned, were erected more than five years prior to the institution of this action, and the cause of action attempted to be set up by plaintiff, if any, is now barred by the statute of limitations of this state, said statute of limitations being hereby pleaded as a bar to this action." [4] As to this defense the court, in ruling upon defendants' motion for nonsuit, stated that the statute of limitations as a defense had not been sufficiently pleaded to put it in issue, and hence made no finding thereon. In this ruling and omitting to make a finding as to the issue tendered, the court erred. [5] While section 458 of the Code of Civil Procedure provides that the statute of limitations as a bar to an action may be pleaded by giving the number of the section and subdivision thereof relied upon, nevertheless such mode of pleading is not exclusive. As said in Manning v. Dallas, 73 Cal. 420, [15 Pac. 34]: "There are only two ways of pleading the statute, one by stating the facts showing the defense and the other by stating 'generally that the cause of action is barred by the provisions of section (giving the number of the section, and subdivision thereof, if it is so divided, relied upon) of the Code of Civil Procedure.'" In the pleading 40 Cal. App.-3 under review the defendants stated the facts, namely, that the improvements, embankments, dikes, and ditches described in plaintiff's complaint, and which it is alleged caused a diversion of the flow of water, had been erected for more than five years prior to the institution of the action. In our opinion, the allegation was a sufficient pleading of the facts to raise the issue as to whether or not the cause of action was barred by the statute of limitations. We do not feel called upon to determine the correctness of the court's statement that the statute would not commence to run until plaintiff had suffered damage from the obstruction, but having concluded the statute of limitations as a bar to the action was sufficiently pleaded, it clearly tendered an issue upon which defendants were entitled to a finding, and this was not made by the trial court. The judgment appealed from is reversed and the cause remanded to the trial court, with direction to enter judgment in accordance with the general verdict of the jury upon the issue as to damages; and that as to the equitable issue involving plaintiff's right to the injunction prayed for in his complaint, a new trial thereof be had upon such evidence as may be properly received thereon. Conrey, P. J., and James, J., concurred. A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on April 18, 1919. All the Justices concurred. [Civ. No. 2395. Second Appellate District, Division One.-February 21, 1919.] ELIZABETH WOODS, Appellant, v. I. I. BENNETT, Respondent; G. W. REILLY, Defendant. [1] DEED - COVENANT AGAINST ENCUMBRANCES — BREACH — LIABILITY OF GRANTOR.-The existence of a judgment lien is a breach of a covenant in a deed of conveyance that the land is free and clear of encumbrances, but as the covenant is one of indemnity, the grantor is liable in nominal damages only, where the grantee has suffered no actual injury from the encumbrance. [2] ID. COVENANTOR'S CONTINGENT LIABILITY.-The covenantor is also under a contingent liability to pay the full amount of the judg ment upon its satisfaction by the grantee by payment. SIDERATION [3]. ID. SUBSEQUENT AGREEMENT BY GRANTOR TO CLEAR TITLE-CON- EXTINGUISHMENT OF EXISTING DIRECT LIABILITY.The liability of the covenantor for such breach is a sufficient consideration for a subsequent agreement on his part to clear the title to the property in question, and such subsequent agreement extinguishes the then existing direct liability. [4] ID.-BREACH OF SUBSEQUENT AGREEMENT-LIABILITY.-On breach of such subsequent agreement by failure to perform it, the covenantor becomes immediately liable to the covenantee in the amount of the judgment as damages. APPEAL from a judgment of the Superior Court of Los Angeles County. Fred H. Taft, Judge. Reversed. The facts are stated in the opinion of the court. John J. Craig for Appellant. Barstow, Rohe & Jeffers for Respondent. CONREY, P. J.-Appeal by plaintiff from judgment entered in favor of the defendant Bennett. The action was brought by plaintiff to recover damages for breach of the following written agreement made by the defendant Bennett: "Los Angeles, Calif., June 6, 1912. "I hereby agree to clear title to lot 17 in block 36 in the Central Arlington Heights Tract as per map recorded in book 30, page 51, miscellaneous records of Los Angeles county, within ninety days from above date. "Details of Above. "I. I. Bennett having deed to Mrs. Elizabeth Woods the above mentioned property representing the same to be free and clear except a certain trust deed for $1000.00. It appears upon examination of said title that there appears a judgment of $424.80 and $7.10 costs against G. W. Reilly in favor of G. B. Lohman docketed Sept. 18th, 1911, and recorded in book 231, page 192, of judgments. Which the above named Bennett agrees to settle with accrued interest within ninety days from the date above mentioned. "Original Witness E. W. Knapp, June 6, 1912. "I. I. BENNETT.” On the sixteenth day of May, 1912, respondent deeded to appellant the land described in the foregoing contract, "free and clear, except a certain trust deed of One Thousand Dollars (except 1912 and 1913 taxes)." On May 24, 1912, appellant deeded the same property to Ellen B. Crowder, including in said deed like covenants against encumbrances as above noted. On June 5, 1912, the Los Angeles Abstract & Title Company issued a certificate to Crowder showing a judgment lien against said property, being the same judgment lien referred to in the contract above set forth. That certificate was introduced in evidence at the trial of this action, together with admissions sufficient to show that the judgment lien actually existed as recited in said contract. In December, 1912, the plaintiff paid Crowder the amount of said judgment, or perhaps it would be more accurate to say, paid to her by reason of said judgment an amount equal to the amount of the judgment. It does not appear that Crowder ever paid the judgment, but it does appear that Bennett never paid it and, so far as appears from the evidence, the judgment remained in force until the lien thereof expired by lapse of time. At the time of commencement of this action the lien of the judgment had not yet expired. [1] The principal defenses urged against the action are that there was no consideration for the agreement, and that the plaintiff has not suffered any damage by reason of any breach thereof. The author of Devlin on Deeds (third edition, section 918), says: "It is, I think, well settled that where the encumbrance has not been paid off by the purchaser of the land, and he has remained in quiet and peaceable possession. of the premises, he cannot have relief against his contract to pay the purchase money, or any part of it, on the ground of defect of title. The reason is that the encumbrance may not, if let alone, ever be asserted against the purchaser, as it may be paid off or satisfied in some other way; and then it would be inequitable that any part of the purchase money should be retained." [2] But, at the end of section 920, he says: "If the covenant, however, is in the form of an agreement to pay and discharge the encumbrances, the covenantee, although he has not extinguished them, is entitled to recover the amount of the encumbrances." These rules, as stated in the textbook, are supported by various cases there cited. Concerning the rule first stated, it is said in Fraser v. Bentel, 161 Cal. 390, |