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mortgage which he had omitted to redeem, there might have been ground to consider the contract as at an end, and rescinded.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.