Opinion
02-09-1903
MOTT v. RUTTER et al.
John B. Slack and Chas. Ewan Merritt, for complainant. Chas. A. Baake and John J. Crandall, for defendants.
Suit by James R. Mott against Rose E. Rutter and others. Decree for complainant.
The bill is filed to foreclose a $450 mortgage, indisputably a purchase-money mortgage. Its execution, delivery, record, etc., are substantially admitted. The defense set up is that at the time of the purchase of the land and the giving of the mortgage by the defendants there was a precedent mortgage on the lands in question and other lands, held by the Provident Life & Trust Company, for the sum of $7,800; that the complainant, at the time he sold the mortgaged premises to defendants and took the mortgage now in suit, agreed that he would relieve the mortgaged premises from the lien of the Provident Life & Trust Company mortgage within five years, and accept principal and interest in discharge of his own mortgage; that the defendants, at the expiration of the five years, tendered the mortgage money due the complainant, and demanded that he procure the discharge of the lien of the Provident Life & Trust Company mortgage; that the defendants have since made like tender and demand, and that the complainant has always refused to procure the discharge of the prior mortgage; that the defendants have always been ready and willing to pay the complainant's mortgage, and that, under the circumstances narrated, no interest should be allowed, but only the principal sum of his mortgage, $450, and five years' interest thereon, the amount first tendered him, without costs, etc. The cause came to a hearing on issue joined on the answer.
John B. Slack and Chas. Ewan Merritt, for complainant.
Chas. A. Baake and John J. Crandall, for defendants.
GREY, V. C. (orally, after stating the facts). As the answer sets up an affirmative defense not responsive to the allegations of the bill, the defendants asked and were given the right to open the case, carrying with it the burden of proof of the defense alleged in the answer. The deed from the complainant to the defendants conveying the mortgaged premises is produced in evidence; also the mortgage now sought to be foreclosed, which secures part of the purchase money. The deed contains this recital of the terms of the conveyance: "This conveyance is made subject, however, to a $1,000 mortgage made by James R. Mott to the Provident Life and Trust Company, said mortgage being upon this lot and upon other lots of land in Atlantic City." The deed also contains a covenant of general warranty. On the hearing of the cause the defendants offered to prove a parol bargain between the complainant and the defendants to the effect that the mortgage now in suit was to be payable when the complainant should, within five years, have obtainedthe Provident Life & Trust Company mortgage to be canceled, satisfied, or discharged, and that this had not been done; that the defendants had, at the end of the five years, tendered the mortgage money, and demanded the performance of the alleged agreement to discharge. This testimony was objected to because contradicting the terms of the contract to purchase and pay for the mortgaged premises, as that agreement is evidenced by the deed and the bond and mortgage, which latter declares that the defendant obligor should pay the mortgage money "within five years from the date thereof, with lawful interest thereon," and contained no additional term providing that the payment shall be conditioned upon the preceding discharge by the mortgagee of the Provident Life & Trust Company mortgage. The rule is entirely settled that, in the absence of fraud or mistake, parol contemporaneous testimony cannot be received to vary or contradict the terms of a written contract. Naumberg v. Young, 44 N.J.Law, 331, 43 Am. Rep. 380; Van Horn v. Van Horn, 49 N.J.Eq. 328, 23 Atl. 1079 (court of appeals). The defendants insist that this parol proof does not contradict or vary the terms of the written bargain between the parties, but that it is merely explanatory of and consistent with it. The clause above quoted in the deed shows that the defendants took the title subject to the charge of the Provident Life & Trust Company's mortgage, at least to the amount of $1,000. No dispute or question has been raised here as to any variance in the amount of the Provident Life & Trust Company mortgage. The deed stated that it is made subject to a mortgage of $1,000 to the Provident Company, while $28,000 is stated in the answer to be the amount. That mortgage has been dealt with, so far as proof of its amount is concerned, as undisputed by either party, and the point to which all questions and arguments have been directed has been to ascertain whether or not the complainant mortgagee was obliged to cancel or satisfy that mortgage, no matter what its amount. When the written contracts (the deed and the mortgage) were made, the complainant imposed his terms of payment, and informed the defendants that they took his title subject to the preceding Provident Life & Trust Company mortgage. Testimony that they took their title clear of that mortgage, or under a parol agreement that it should be discharged by the complainant, is in direct contradiction of the terms of the deed and mortgage. Such proof is in no way explanatory of the terms of the deed or mortgage; on the contrary, it is in refutation of those terms, and must, therefore, be excluded. The proof of the manner of the tender, very frankly and truthfully given, shows that the tender was made each time upon condition that the complainant should procure the preceding mortgage to be canceled. If that condition might rightfully have been attached, it would have been a good tender notwithstanding the condition. The doctrine expounded by the cases which Mr. Crandall has cited is good law, in my judgment. But in order to make a conditional tender effective, it must have been the duty of the party to whom the tender was made to have performed the condition which was required of him as precedent to the accordance of the tender. In this case there was no duty upon the complainant to cancel the preceding mortgage, subject to which the defendant mortgagors had taken title; and therefore when the tender was made to him, that the mortgagor would pay off this mortgage, upon condition that the mortgagee should obtain the Provident Trust mortgage to be released or canceled, it was an unlawful condition, one which the complainant was not called upon to perform, and he might rightfully and justly refuse to accept the money on those terms. Nothing in either the answer or the offer of proof proffers any defense of fraud in obtaining the agreement in question, or mistake in its drafting or execution. If such fraud or mistake was to be set up as a defense, it should have been alleged in the answer. There is no such allegation.
The testimony of the complainant stands undisputed. There must be a decree for the principal sum due on his mortgage, with interest from its date, according to the prayer of the complainant's bill. I will sign such a decree.