
    George C. Wheeler, Resp’t, v. Horace B. Wheeler, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 19, 1888.)
    
    1. Specific performance of contract—Action for—Construction of CONTRACT.
    This action was brought to secure the specific performance of an agreement for the sale of real estate, the plaintiff being the purchaser and his father the vendor. The defendant was also a son of the vendor Previous to his death, the father of the parties, by an instrument in writing, agreed to sell and convey certain lands to the plaintiff, which were encumbered by two mortgages, which the plaintiff agreed to pay and discharge, and save the vendor harmless therefrom. O n such payment a part of the land was to be conveyed to the plaintiff, by warranty deed. Certain other matters were agreed to be performed hy the plaintiff on the performance of which he was to have title to the remainder of the land. The contract contained a provision which indicated that funds for the payment of the existing incumbrances might be raised by loan, and that the new debt or obligation should be substituted in place of the original indebtedness, and paid by the plaintiff. All the other children left by the vendor have conveyed their interest in the premises to the plaintiff and this action is to compelí a similar conveyance on the part Of the defendant. After the execution of the contract, the vendor, with the consent of the plaintiff, borrowed money for the purpose of paying and discharging the encumbrances on the property, and to secure the lender, he executed to him a mortgage on the premises, and the money was applied to discharging the earlier encumbrances. Before the commencement of this action the mortgagee commenced an action to foreclose the mortgage, which was prosecuted to judgment, the costs and interest on which judgment were paid by the plaintjff herein. The defendant herein became the owner of the judgment by purchase from the assignee. Feld, that the vendor in borrowing the money became personally liable to the party making the loan; that by the ■original contract, the plaintiff was not entitled to a deed of the land in ■question until the consideration money was paid in full, and that the new ■debt and mortgage were, with the plaintiff’s consent, substituted in the place of the old debts.
    
      3. Same—What entitles plaintiff, to decree.
    
      Held, that on payment of the decree in the foreclosure action the plaintiff was entitled to a conveyance of that part of the lands first referred to.
    3. Tender before action—Offer of payment must be unconditional to constitute—Conditional offer of payment does not relieve MORTGAGED PREMISES FROM LIEN OF MORTGAGE.
    
      Held, that an offer made by the plaintiff to pay the mortgage before action had been commenced thereon on condition of its being assigned to him, did not relieve the premises from the lien of the mortgage, as offer must be unconditional.
    4 What does not constitute waiver of condition precedent.
    
      Held, that in view of the fact that the express terms of the contract made payment a condition precedent to conveyance of the land, and the fact that the offer was conditional the condition precedent was not waived by the defendant’s refusal of the money offered.
    5. Same—Consideration of contract—Presumption regarding performance.
    
      Held, that the plaintiff having agreed as part of the consideration for the conveyance of part of the land to support his father and mother, it was to be presumed that he had done so until the contrary was made to appear.
    6. Nonsuit—Judgment of—Is not bar to subsequent action.
    
      Held, that a judgment in an action which was by stipulation to have only the effect of a judgment of nonsuit was' not a bar to subsequent action.
    Appeal from a judgment entered upon the decision of the Yates special term, in an action for the specific performance of an agreement for the sale of real estate, the plaintiff being the purchaser, and his fathei*, Ephraim Wheeler, deceased, the seller. The material facts are stated in the opinion.
    
      William S. Oliver, for appl’t; William T. Morris for resp’t.
   Barker, P. J.

The plaintiff and the defendant are the sons of Ephraim Wheeler, who died intestate, in 1881, the owner of the premises described in the complaint, containing forty-three acres.

In 1875, the deceased, by an-instrument in writing, agreed' to sell and convey the said lands to the plaintiff. The premises were incumbered by two mortgages, amounting in the aggregate to $2,034, which the plaintiff agreed to pay and discharge and save the vendor harmless therefrom.

On such payment being made, thirty acres of the entire parcel was to be conveyed to the plaintiff by the warranty deed. As a further consideration, the plaintiff was to pay to his father, annually, sixty-three dollars, called in the contract, interest money, on the estimated value of the remaining thirteen acres, and also support and maintain his father and mother during their natural lives, and on the death of the survivor of them, he was to have the title to the last mentioned parcel.

The contract contains some other provisions of minor importance, which it is unnecessary to mention in disposing of the question arising on this appeal. After the contract was executed, and on the 21st day of December, 1877, the deceased, with the consent of the plaintiff, borrowed $1,600 for the purpose of paying and discharging the said incumbrances, and to secure the lender, he executed to him a mortgage on all the premises, and the money was applied in discharging such incumbrances.

The contract contained a provision which clearly indicates that funds for the payment of the existing incumbrances might be raised in this manner, and the new debt or obligation should be substituted in place of the original indebtedness, and be paid by the plaintiff. The mother of the plaintiff died prior to the commencement of this action. The deceased left children and grandchildren, other than parties to this suit, all of whom, except the defendant, have executed a conveyance of the premises to the plaintiff, the defendant’s share, as heir-at-law, being one-eighth of his father’s estate. This action is to compel the defendant to execute a conveyance of his title to the premises to the plaintiff, who claims that he is entitled to the same, by the terms of the contract of sale.

The judgment requires the defendant, as one of the heirs-at-law of the deceased, to execute, acknowledge and deliver to the plaintiff a conveyance of the premises, described in the complaint, and contains no other provision. The loan of $1,600, secured by the mortgage already mentioned, remains unpaid.

Before the commencement of this action, the mortgagee commenced an action to foreclose the mortgage, and the plaintiff herein was made a defendant therein, and on the 7th day of January, 1885, a judgment was entered in the usual form, and the amount due and unpaid was adjudged to be $1,741.05, and the costs were taxed at $107.28.

Ho personal representatives have been appointed to administer the estate of the deceased.

Before the commencement of this action, the plaintiff paid the costs and interest on the decree, and it was conceded, on the trial, that there was due thereon the sum of $1,772, and that the defendant was the assignee and the owner of the same, by purchase thereof from the mortgagee.

The defendant contends that the plaintiff had not performed the agreement on his part, and was not entitled to a deed, by the terms and conditions of the contract of sale, and that the incumbrance, created by the mortgage last executed, remained unpaid, which the plaintiff had promised to pay and discharge as a condition to his right to a deed of the premises, and that the judgment should be reversed, for the reason, no provision was made for the payment of the decree before, or at the time of the delivery of the deed which he is required to execute.

It is not disputed but that at the time the contract was entered into there were two mortgages on the property, both made by Ephraim Wheeler, one for $1,527.62, and the other for $57.24, and that he was personally liable for the debts secured by the mortgages.

The contract of the sale provided, in plain terms, that the plaintiff, as purchaser, should pay off and discharge these mortgages and save the vendor harmless therefrom. These mortgages were, in fact, paid off and discharged, but $1,600 of the money used for that purpose was borrowed by the deceased vendor, who executed a mortgage on the premises to secure the loan, and that mortgage has not yet been paid, and, in a foreclosure action, a decree has been obtained for a sale of the premises. Is the plaintiff under an obligation to pay off and discharge these mortgages before he is entitled to a deed ?

It does not appear from the evidence that the deceased became personally liable in any form to the lender to repay the money borrowed, except so far as such liability may exist by the terms of the original agreement. It is to be presumed that the deceased vendor, who was the borrower, became personally hable to pay the debt to the party making the loan, unless the contrary is made to appear. The fact is undisputed that he personally borrowed the money of the mortgagee.

The court has not found as a fact that the original contract was changed in any of its terms so as to entitle the plaintiff to a deed until all the consideration money was paid in full. The agreement on that subject is very clear and distinct, and the provision is as follows: That the vendor binds himself, his heirs and assigns, to give to the vendee a full warranty deed of the thirty acres when he shall have paid the incumbrance of $2,034.86. The incumbrances here referred to are the two mortgages before mentioned. The plaintiff has never paid the entire debt secured by these mortgages, and the amount mentioned in the decree yet remains unpaid. The new debt and the new mortgage were substituted in the place of the old debts, and with the plaintiff’s consent.

The trial court has not found any fact inconsistent with these statements, and certainly the evidence would not sustain any finding to the contrary. The finding upon which the plaintiff relies as exempting him from the obligation, as contained in the original, is set forth in the decision as follows:

“That after the making of the agreement, and in the life-time of the vendor, by mutual consent and agreement-between the parties to the contract, the same was altered, amended and changed in this respect, that the mortgage therein referred to was paid off by the plaintiff’s paying the sum of $507.24 and the vendor making and executing a new mortgage upon the premises for the sum of $1,600, which said mortgage it was agreed between the parties to the said contract and agreement, should be continued to run without being paid off as long as said plaintiff should require; and that other modifications of said contract were made during the life-time of said Ephraim Wheeler, which said modifications were carried into effect to the satisfaction of the said Ephraim Wheeler.

The concluding clause of this finding is not, in terms nor in effect, a finding that the contract was altered so as to' entitle the plaintiff to a deed without a performance of the agreement on his part to pay off and discharge the incumbrances. The other fact found in the portion of the decree quoted from does not purport to touch the provision in the original contract that the incumbrance should be paid by the vendee before he was entitled to a deed.

The effect of these findings is this, and nothing more, that the vendor was willing, so far as he was concerned, that the time of payment should be extended to suit the wishes of the plaintiff in this respect. The vendor had no control over the time of payment, as that was fixed when the loan was made, and the period of credit had expired when the action was commenced to foreclose the mortgage given to secure the loan. The evidence given on this subject, and upon which the finding was based, was given by the plaintiff’s wife, which indicates that the arrangement between the vendor and the vendee was that the balance of the purchase money should be paid at the convenience of the plaintiff. She says: “I remember the time when

Ephraim Wheeler made the loan of Mr. Simons, of $1,600, upon the property occupied by my husband and myself, and the Cuddeback mortgages (meaning prior mortgages), were paid; remember the conversation between Ephraim Wheeler and my husband in reference to the making of the $1,600 mortgage; Ephraim Wheeler said at that time, it was, reduced, that all they (Simons) wanted was the interest now,, and we could have our leisure for the balance; that was spoken of frequently, during the time and afterwards; I remember father’s saying, after it was done, in substance, that ‘now you can pay your interest; ’ all they want is their interest, and pay the balance at your leisure, the principal; I remember that being said, time and again, at the time, and afterwards, frequently, when they would meet in my presence, and while they lived there.”

The plaintiff testified in his own behalf as follows:

‘ “I remember the circumstance of the making of the mortgage by Ephraim Wheeler to James Simons, of $1,600; at the time the mortgage was made the Cuddeback mortgages were paid; I raised $517 of it myself, and the $1,'600 raised by this Simons mortgage was used in paying the balance.”

The import of this evidence is, that the loan was made with the consent of the plaintiff, and that his obligation to pay a sum equal to the loan, either to the vendor or to the lender, continued, and that, to pay the same, he could have all the time that was stipulated in the mortgage, and such further time as the mortgagee would be willing to give, to repay the loan, on paying the interest annually. This evidence would not justify the conclusion that the plaintiff was released from his personal obligation, to pay the purchase money, before he was entitled to a deed.

In another case between the same parties, and now before this court on appeal, and to be decided in connection with this case, and involving substantially the same state of facts, it was stated among the facts found by the trial court, that the vendor did incur a personsal responsibility in borrowing the money, and gave a bond wherein he promised to repay the same, and that it was agreed between the parties to this controversy, that the plaintiff might repay the same, to Simons, the obligee, and mortgagee, at such time as they might agree upon. It was conceded upon the argument, that our decision in that case, must necessarily follow the one which we make on this appeal, as the underlying questions of fact, were the same, and it is therefore entirely proper, to refer the facts found in that case, with a view of determining whether the vendor incurred a personal liability in making the loan.

It must therefore, be held, that the judgment is erroneous and should be reversed, or so modified as to fully protect the rights of the defendant, as the assignee and owner of the judgment, and as one of the heirs at law of the vendor.

As to the thirty acre parcel, the plaintiff is entitled to a deed, on paying up the decree.

Some other questions, remain for examination. The purchase of the decree by the defendant, was on the 4th day of August, 1886. The case states as a fact, that thereafter and on the 3d day of September, 1886, that one John Shep- and, on behalf of the plaintiff, tendered to the defendant, the sum of $1,772, the amount due on the decree, and demanded on behalf of the plaintiff, a transfer of the mortgage or decree, to the said Shepard, and • the defendant refused to accept the money, and transfer the mortgage,. but said that he was ready and willing to accept the money and satisfy.the mortgage, and the plaintiff declined to pay up the decree, without the same was assigned as demanded. The time this action was commenced is not specifically stated, hut it is quite certain, from an inspection of the record, that it was before the defendant purchased the decree, as no reference is made to that circumstance or to the tender, either in the complaint or in the answer, but in the other case, now on appeal, and to the records of which, reference has been -made, it distinctly appears that this action was commenced before the defendant purchased the decree. If a tender was made after the action was commenced, it did ■ not have the effect of discharging the premises from the, mortgage lien, as the same was not in full compliance with the provisions of the Code, relative to making tender after action commenced. Sections 731, 732, 733.

If, in fact, it was made before the action was commenced, then it was of no avail to the plaintiff, for any purpose whatever, for the reason that the tender was not unconditional. Roosevelt v. Bullshead Bk., 45 Barb., 579; Wood v. Hitchcock, 20 Wend., 47; Wilder v. Seelye, 8 Barb., 408; Brooklyn Bk. v. DeGrauw, 23 Wend., 342; Kortwright v. Cady, 21 N. Y., 343.

Independent of the question of tender, the defendant had a right to exact payment, and a discharge of the decree as-a condition of vesting a title to the premises in the plaintiff. If it should become necessary to resort to a sale of the premises to secure payment of the decree, then the defendant as one of the heirs at law and next of kin of the mortgagor would be pecuniarily interested in having the full amount of the debt realized on the sale, so it would be unnecessary to resort to his father’s personal estate, for the purpose of discharging the liability assumed by him, to repay the debt secured by the mortgage. But as the learned counsel for the plaintiff has not contended that the tender was sufficient, and had the legal or equitable effect of displacing the mortgage lien upon the premises, we may pass the question, without further consideration.

But the learned counsel has argued, that, by refusing to accept the money tendered, he waived the condition precedent, that that debt should be paid by the plaintiff, before he was entitled to a deed. This proposition seems to us to be entirely untenable in view of the express terms of the original contract, and the omission to make an unconditional offer to pay up the decree.

The trial court made a general finding, that the plaintiff had performed the contract of sale in full, on his part. If this finding is sustained by competent evidence, except as to the omission to pay the decree, then the decree may be modified so as to cure the error which we have pointed out, and fully protect the rights of the parties. The plaintiff; did not pay directly to the deceased, the sum of $65 annually, as stipulated in the contract to be paid, upon the performace of which he was entitled to a deed of the thirteen acres, after the death of his father and mother, but the evidence tended to prove that the plaintiff paid a sum equal to that amount on debts owing by his father, at his request, and in lieu of the sum stipulated to be paid annually.

Upon the issue whether the plaintiff had fully performed Ms contract to support his father and mother, he was examined as a witness in his own behalf, and testified, in substance, that he did supply them with provisions and clothing and everything they needed up to the time of their death, and furnished them with everything they called for or needed. This evidence was objected to by the defendant on the ground that the plaintiff was an incompetent witness, to testify on that subject under section 829 of the Code of Civil Procedure, and the same was overruled and the defendant excepted.

We think the plaintiff was not an incompetent witness on that issue, but we are also of the opinion in view of the nature of the covenant for support and maintenance, that it was for the defendant to show in an action between these parties, for the enforcement of a contract by the defendant,' as one of the heirs at law of the deceased vendor, that the covenant had not been kept, and until the contrary was made to appear, it is a fair legal presumption, that the same had been performed to the satisfaction of the persons entitled to their support from the plaintiff. There is not the least hint in all the case that the plaintiff did not properly care for Ms father and mother. As it was not necessary for the plaintiff to make any proof on that subject, the reception of his evidence although erroneous, does not present a sufficient ground for reversing the judgment.

The trial judge has not found, nor was • he requested to find that the plaintiff agreed, in any subsequent arrangement between himself and his father, to pay the debts which his father owed the defendant, and which had passed into a judgment. We have carefully examined all the evidence and are clearly of the opinion that it is insufficient to support such a conclusion. The former suit between these parties does not constitute a bar to granting relief in this action, for the reason, by the stipulation made on this trial, the judgment in the former action, was to be treated as a judgment of non-suit only.

The judgment should be modified, providing that in case the plaintiff, within forty days after the entry of the order, modifying the judgment, shall pay the balance due on the decree, then the defendant shall execute and deliver a deed of the premises, and if the plaintiff neglect to make such payment, that the complaint be dismissed with costs, and the costs of this appeal, to the appellant, and the defendant be at liberty to proceed on the decree to sell the premises, and all the moneys realized, on such sale, over and above the sums hereby directed to be paid to the defendant, and the costs of such sale be paid to the plaintiff.

All concur.  