
    Greenby against Cheevers.
    NEW YORK,
    May, 1812.
    In September, tracted to ascertain piece of land, for which B. was to pay 100 cMilTon isoZtoo do!’lavs on the ist January, 1806, and the resiyears-thereat deed Tas T be executed of the purwaTuST&c.
    At the time of the contract there was a prior mortgage on the registered in July, 1802, the payment money'infive annual instaiving paid to mi Thereon-an ° actioTof assumpsit to theToneyT frauffiTtwas held that the mere fact of the existence the" eoutracf Ts not evidence of fraud, so as to vacate the agreement, and give B. a right to disaffirm it; for it might be that A. would have paid off the mortgage before the time when he was to convey to B. so as to give him a good title. And B. at least, ought first to have paid the one half of the purchase-money, and put hltw self in a condition to demand a deed, before he charged A. with a default.
    IN error, from the court of common pleas of Jefferson county. The plaintiff below, Cheevers, declared in assumpsit, for money paid, &c. money lent, &c. and money had and received, &c„ The defendant below pleaded non assumpsi. .
    . At the trial of the cause, the plaintiff gave in evidence an agreement, dated the 14th of September, 1803, by which Greenby to sell and convey, by a good and sufficient deed, to Cheervers, a certain piece of land, at 3 dollars per acre, if Cheevers should do and perform his promise, contained in the same agreement which was to pay Greenby 468 dollars and 79 cents, to wit, 1®® dollars on the 1st January, 1805, and 100 dollars on the 1st January, 1806, and the residue in two annual instalments; Green-by agreed to give the deed on the payment of one half of the purchase-money, subject, however, to a mortgage for the security 0f remainder,
    eThe plaintiff also gave in evidence a mortgage, dated 22a Fe* bruary, 1802, and registered 23d July, 1802, from Greenby, Jose Wilcox and Elihu Gillett, to Daniel M‘Cormick and Charles Smith, which covered the same land, for securing the payment of 7,620 dollars, in five annual payments. The plaintiff also proved, that he had, at different times, paid to the defendant on the contract 83 dollars and 36 cents, including interest,
    On this evidence the defendant’s counsel moved for a nonsuit, which was overruled by the court below, who were of opinion that, the land being encumbered by the mortgage to McCormick and Smith, the plaintiff had a right to disaffirm the contract, and bring this action to recover back the money he had paid; and that the 'evidence should go to the jury, to show the fraud of the defendant. The jury accordingly found a verdict for the plaintiff for 83 dollars and 36 cents,
    The counsel for the defendant tendered a bill of exceptions to the opinion of the court below, on which the writ of error was brought to this court,
    
      The case was submitted to the court, without argument.
   Per Curiam.

The mere fact of the existence of the mortgage at the time the plaintiff in error entered into the contract, ivas not evidence of fraud, so as to vacate the agreement. The mortgage was upon record and open to the knowledge of Cheevers. Greenby did not agree to convey until one half of the purchase-money was paid, and one half of it would not be due and payable until the 1st of May, 1806. By that time, the mortgage would have been due and payable, and it is to be presumed that Greenby would then have put himself in a capacity to convey a good title. He was careful not to contract to convey until the arrival of the time when he was to pay up the mortgage. If Cheevers had waited until half of his purchase-inoney was due, and had then offered to pay it on receiving the deed, and Greenby had then been incapacitated to convey, by the outstanding mortgage which he had omitted to redeem, there might have been ground to consider the contract as at an end, and rescinded. But Cheevers had paid bat 83 dollars and 36 cents, and had never put himself in a condition to demand a deed, nor to charge Greenby with a default. The case has no analogy to that of Van Benthuysen v. Crasper. (8 Johns. Rep. 257.) The plaintiff below showed no right of action, and the judgment must be reversed.  