The opinion of the Court was drawn up by
Weston C. J.The questions, involved in the case before us are, whether the condition of the contract, upon which the plaintiff relies, has been complied with, whether it was necessary for the plaintiff to aver and prove notice of that fact, and whether also he was bound to prove a special demand of payment, prior to the action.
And we are of opinion, that the mortgage, set forth in the condition, has been legally and effectually discharged, by the entry on the mortgage deed. The deed being referred to in that indorsement, it has the same effect, as if it had been recited, or otherwise particularly described. The mortgagees, under their hands and seals, in the presence of a witness, declare the conditions to have been complied with. The deed was to be void, upon the performance of the conditions; and when the mortgagees, by their deed, on the back of that instrument, admit that they have been performed, it must be understood to have been done in all respects, as therein provided. But the entry further expressly discharges the obligation of the deed. If the lawful meaning and intention of parties, clearly expressed, is to be regarded, the mortgage was fully released and discharged.
It is contended, that the performance of the condition, being peculiarly in the knowledge of the plaintiff, he was bound to give notice to the defendant. And there are authorities to this effect; *12as, where the act on which the plaintiff’s demand arises, is secret and lies only in the plaintiff’s mouth, which is one of the illustrations of the rule, put by Baron Comyns. Com. Dig. Pleader, C. 73. In this case there was a privity between the defendant, who was the assignee of the mortgagor, and the mortgagees. He could at any time learn from them, whether their lien had been discharged. Besides, the discharge of the mortgage was, on the day it was made, more than three months before the action, entered of record, to give notice to the public generally, and to parties and privies in interest, particularly. If this therefore was one of that class of cases, to which the rule would have applied, if the fact had been peculiarly in the knowledge of the plaintiff, we are of opinion, that the discharge of this mortgage was not a fact of that description.
The amount here claimed was a part of the consideration, agreed to be paid by the defendant, for certain real estate conveyed to him by the plaintiff, which was to be retained, until the latter had removed the incumbrance of the mortgage. A distinction has been taken between a precedent debt or duty, and where the obligation to pay arises altogether from the happening of the condition. In the latter, a precedent request is essential, in the former, it is not. 1 Saund. 33. Here the debt existed, but the time of payment was postponed, until a certain condition was performed. That done, the debt became presently due.
None of the points, taken in defence, appear to us to have been' sustained. Exceptions overruled.