
    Jacob Oppenheimer, Resp’t, v. Asabel W. Humphreys et al., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed May 9, 1890.)
    
    1. Vendor and purchaser—Doubtful title—Incumbrances. .
    A purchaser of real estate is entitled to a clear record title. If mortgages appearing of record against the premises are claimed to have been reduced, he is entitled- to such evidence of the fact as would enable him to spread the same upon the record, so that, no matter who might die, or what might become of the original bond accompanying the mortgage, the records would show precisely the extent to which the mortgage was a lien, and nothing less than this will satisfy the requirements of the law.
    '2. Same—Time of completion.
    Where the time to complete a purchase of real estate lias been adjourned, from time to time, lo specified dates, the purchaser is entitled to insist upon the performance at the time appointed, and is not bound to wait in order that difficulties or incumbrances affecting the title might be removed.
    3. Same.
    The rule in equity, that time is sometimes not regarded as the essence of the contract, has no application to actions at law, and the rights of the parties are to be determined strictly by the agreement.
    (Brady, J., dissents.)
    Appeal from judgment entered on verdict rendered upon trial at circuit.
    
      Howard B. Bayne and B. F. Little, for app’lts; Glemens J. Xracht, for resp’t
   Van Brunt, P. J.

The plaintiff and the defendant Humphreys and one Ward entered into a contract whereby said Humphreys and Ward agreed to sell to plaintiff certain premises in the city of Hew York for the sum of $30,000, to be paid as follows: One thousand dollars on signing the contract; $16,000 by taking said premises subject to a mortgage then on the same, bearing interest at the rate of five per cent, per annum, and due and payable, and the balance of $13,000 in cash on delivery of deed. The contract further provided that the premises should be free from all incumbrances except said mortgage. The deed was to be delivered on the 31st of March. The plaintiffs caused the title to be examined and discovered that said premises were apparently incumbered by a mortgage of record for $22,000, bearing interest at rate of seven per cent. This mortgage was not satisfied of record and was an apparent lien upon the premises for the amount therein mentioned. Upon the 31st of March, 1886, the time fixed for the closing of the contract, the plaintiff declined taking the title on the ground that the premises were incumbered by a mortgage of $22,000, with interest at seven per cent., instead of a mortgage of $16,000 at five per cent, as the contract provided. In reply to this objection, the vendors stated that the mortgagee was at the time traveling in Egypt, and it was impossible to get from him personally any admission on the subject, but that Biggs & Co., bankers of Wall street, were the agents of the mortgagee, and that they had the bond and mortgage in their possession, with payments on account of' principal and interest endorsed on the bond, that they had also a satisfaction piece, and that the plaintiff or his attorney might satisfy himself by calling at Biggs & Co., where these papers were subject to examination. The vendors further offered to furnish the plaintiff with an affidavit of Ward, one of the owners, of the fact of the payment of the $6,000 on the mortgage. He also offered to furnish a certificate of this fact in writing from Biggs & Co., and also a similar statement that the interest had been reduced to five per cent. The closing of the title was adjourned to April 9th for the purpose of enabling the defendants to produce the requisite proof showing that $6,000 had been paid on account and the interest reduced. Further adjournments were had to the 12th of April, and in the meantime a clerk of the attorney for the plaintiff called on Biggs & Co., but whether he saw the bond with the endorsement upon it does not clearly appear. He was told what the facts were in reference to-this payment by the bookkeeper of Biggs & Co. The plaintiff on the 12th, not being satisfied with the title as it stood, the vendors proposed that he should reserve from the balance of the purchase money the whole face of the mortgage, $22,000, together with a sufficient amount to cover any question of interest, himself keeping the $16,000, and depositing the balance in a trust company as a guarantee. The vendors then offered to pay off the mortgage, and file a satisfaction piece, and put on a new mortgage due at once at five per cent., provided they were allowed five or six days to do so. This proposition was likewise rejected by the plaintiff.

This action was commenced some months thereafter to recover "the $1,000, which had been paid at the time of the making of the ■contract, and for the expenses of searching the title. Upon the foregoing facts, the court directed a verdict in favor of the plaintiff, and from the judgment thereupon entered this appeal is taken.

It is well settled that unless a seller of land tenders a title which is free from reasonable doubt, the purchaser is not bound to ■complete.

In the case at bar the records show a.mortgage of $22,000; with interest at seven per cent The claim was made upon the part of the defendants that $6,000 had been paid upon this mortgage, and the interest reduced to five per cent. They offered the certificate ■of Biggs & Co., bankers in this city, who were alleged to be-the agents of the mortgagee, who had possession of the bond and mortgage, and also of the satisfaction piece -thereof, to the effect "that such payment had been made, and such reduction of interest had occurred.

We do not think that the plaintiff was bound to accept the title upon evidence of this character, that the apparent incumbrances upon the property had been partially removed. He was not bound to run the risk of being able at some future time to establish that Biggs & Co. were the agents of the mortgagee, or if the bond in question should happen to have been destroyed, to rest his claim of payment upon paroi evidence, the benefit of which he might at any time lose. He was entitled to a clear record title. He had the right to claim that his title should be put beyond the •contingency of human life, or the continued existence of papers, which could not be the subject-matter of a record. He was entitled to demand, if the mortgage had been reduced to the extent •claimed, such evidence of the fact as would enable him to spread the same upon the récord, so that no matter who might die, or what might become of the original bond in question, the records would show precisely the extent to which the mortgage was a lien, and it does not seem that anything less than this would satisfy the requirements of the laiw.

But it may be urged upon the part of the appellants that their offer to satisfy the mortgage and place a new mortgage upon the premises for $16,000, with interest at five per cent, would fulfill the requirements of the contract That is undoubtedly true, but the defendants having fixed a time at which this contract was to be closed, and having by their acts made time of the essence of the contract and with the intention that time should be of the essence of the contract, accentuated by the adjournments to specific dates which took place when these various objections were under discussion, the plaintiff was entitled to insist upon performance at that time, and was not bound to wait in order that difficulties or incumbrances affecting the title might be removed. 3 Parsons on Contract, 383.

It is true that, in equity, time is sometimes not regarded as of the essence of the contract. Voorhees v. De Meyer, 2 Barb., 37; Wiswall v. McGown, id., 270. But this question always depends upon the facts of each particular case, and whether conveyance can be as well done at a later period as an earlier, and without -detriment to the party insisting upon a rigid adherence to the time fixed in the contract.

But this rule has no application to actions at law. The rights •of the parties are determined strictly by the agreement, and although in this case, had the appellants procured the mortgage of $16,000, at five per cent, and tendered the same within five or six days after the last adjourned day for the completion of the contract, with a proper conveyance of the land in question, the plaintiff would, probably, have been compelled in equity to have completed his contract, but they not having done so, the mere fact of their having offered to complete the title in the way suggested, gives them no standing in a court of equity to enforce specific performance.

Upon the whole case, therefore, we think that the case presented no question of fact which it was necessary to submit to the jury, that upon the conceded facts the title tendered to the plaintiff was not such as he was bound to accept, and that the direction of a verdict in his favor was correct.

The judgment should, therefore, be affirmed, with costs.

Daniels, J.

I agree to affirm for the reasons stated, and on the further ground that no equitable defense was interposed by the defendants. The disposition of the action was, therefore, left to depend upon legal principles. And as the vendors were in default, the direction óf a verdict against them was right.

Brady J.

(dissenting).—I think the equities are in favor of the defendants, and that they should prevail without regard to the form of the action. If the plaintiff should succeed, according to the whole law of the land, the' judgment is erroneous. The defendants offered to perform and make the title good, although not precisely in the manner provided for. But this, I think, was enough.  