GOODE, J.
This action is on a statutory covenant of indefeasible seizin and an express covenant of warranty contained in a deed purporting to convey the title to certain land in St. Louis county, which was executed by Anderson Gratz and wife to Alice A. Harris on the third day of October, 1890. The grantee in said deed, Alice A. Harris, afterwards conveyed the land therein described, by a similar instrument, to the plaintiff Leet on the thirteenth day of February, 1891. Leet remained in possession and peaceful enjoyment of the premises until the twenty-second day of August, 1899, when certain alleged devisees of a remainder over under the .will of one Michael J. Gannon, commenced an action of ejectment against Leet to recover possession and damages for the unlawful detention thereof. Immediately after the service of summons ■ on him, Leet notified Gratz in writing of the commencement of the ejectment case and demanded that Gratz defend the action as provided in one of the covenants in his deed to Alice A. Harris. This notice described the land and was in all respects formal, and sufficient to furnish Gratz with accurate knowledge of the nature of the litigation which he was called on to meet and of plaintiff’s requirement that he defend it. He took no steps to do so, however, until the term of court following the term at which a judgment had been rendered in favor of the *426plaintiffs against Leet for possession, when be appeared and filed a motion to be made a co-defendant, excusing bimself for not acting sooner on tbe pretext of a negotiation between him- and Leet wbicb led bim to believe tbe latter bad waived tbe benefit of tbe notice served on bim to make defense. No tangible or substantial proof of any negotiation wbicb would amount to a waiver by Leet is found in tbe record. Tbe court overruled Gratz’s motion to be made a party, as untimely, it having been filed after final judgment was rendered, but during tbe pendency of a motion for a new trial. While tbe ejectment case of tbe Gannon heirs against Leet was at this stage, to-wit, pending on a motion for a new trial, it was compromised by Leet paying said heirs five hundred dollars to convey their title to bim.