Opinion by
Henderson, J.,
The contract of September 22, 1914, executed under seal by Roberta Y. Strong, out of which this action arises, contained the following covenant: “the said title to be good and marketable and satisfactory to the said M. A. Brinton, his heirs and assigns and the said land to be clear of all liens and encumbrances.” It must be admitted that the occupancy by the railroad company of that portion of the farm covered by the release of the heirs of.John Strong dated January 28,1891, constitutes an encumbrance. That document not only recognizes a right of way but provides that no nonuser of the strip of land or any part thereof by the railroad company, its successors or assigns or any user, occupation or possession thereof or of any part thereof by the said Strong heirs or by their heirs, executors, administrators or assigns whether by residence, cultivation, enclosure or otherwise for any period of time whether for twenty-one years or longer shall in any manner affect the right or title of the said railroad company, its successors and assigns to the entire and exclusive possession of the same. A permanent right of exclusive occupancy is thereby fixed on the land and to that extent the owner was not able to convey a title “good and marketable and satisfactory” to the grantee and “clear of all encumbrances.” It is agreed in the case stated that the total depreciation of the farm by reason thereof is $404.60, which is the retained purchase-money Claimed in this action. If the plaintiff were pursuing her remedy on the contract it is plain that there could be no recovery on the agreed facts, for the defendant having protected himself against encumbrances by a positive covenant that the property shall be conveyed clear .of all encumbrances is entitled to the benefit of his contract and this is true whether he had knowledge of the existence of the encumbrance or not Evans v. Taylor, 177 Pa. 286; Patterson v. Freihofer, 215 Pa. 47. Whatever may be the obligation of the grantor under the covenant of general warranty or *272the statutory warranty arising from the grant, bargain and sell clause in the deed where the grantee has knowledge of the encumbrance, the law is well settled that an express and positive covenant against encumbrances binds the covenantor even if the grantee have knowledge of the existence of the encumbrance. It is contended, however, by the appellant that by the delivery of the deed the contract was merged in the deed, and that the contract being executed, a different rule prevails as indicated in Memmert v. McKean, 112 Pa. 315; Barns v. Wilson, 116 Pa. 303, and kindred cases; in the former of which it was held in an action on the warranty contained in the grant, bargain and sell clause of a deed that this covenant did not apply to an encumbrance consisting of stone steps belonging to an adjoining house and so constructed as to occupy a portion of the sidewalk in front of the plaintiff’s house. The decision was rested on two grounds: that the existence of the encumbrance was plainly visible to the eye as a servitude on the property and the presumption is that ..the price was fixed with reference thereto; and that neither the Act of 1715 nor the general warranty in the deed covered such an encumbrance. There is a clear distinction, however, between cases of this class and those where a particular and positive warranty against encumbrances exists: Friend v. Oil Well Supply Co., 179 Pa. 290; and a distinction is also drawn between an executed and executory contract, the presumption of waiver being applied in the former case while in the latter no such presumption exists. It is assumed by the appellant that the case involves an executed contract but this assumption is disturbed by the agreement of December 14,1914, executed at the time of the delivery of the deed. The obvious purpose and effect of that instrument was to avoid any presumption or conclusion which might arise from the delivery of the deed and to preserve to the defendant the attitude which he maintained before the deed was delivered, with respect to the 2.38 acres. Objection was *273made by the defendant to the receipt of the deed and the payment of the pnrchase-money, whereupon it was agreed that the question should be submitted to the court to determine whether, in view of the encumbrance, the grantee was bound to pay the full price for all the land within the plaintiff’s survey. The effect of this agreement, as we construe it, was to leave the defendant in as favorable a position with reference to the controverted question as he would have been in if the deed had not been delivered and a part of the purchase-money paid. .The transactions were contemporaneous, a dispute existed before any money was paid or the deed delivered and the contract cannot be said to be executed, therefore, with respect to this reserved question. This leaves the defendant in a position to object to the quality of his title so far as the title is affected by the estate of the railroad company. The cases on which the appellant relies arise out of the contract, of general warranty or covenants created by the Act of 1715 and relate to executed contracts. We are concerned with a particular covenant where the question was reserved by agreement for determination by the court. Our opinion is that on the facts presented in the case stated the conclusion reached by the learned judge of the court below was correct. It is unnecessary therefore, to consider the first, third and fifth assignments which complain that facts were stated and inferences drawn in the opinion of the court which were not contained in the case stated. The matters there objected to are not controlling features of the case and are not necessary to sustain the judgment.
The judgment is affirmed.