Coble v. Zook - Case Law

Opinion by

William W. Portee, J.,

The plaintiff claimed that the defendant promised to pay him $250 on the receipt of a deed from the sheriff for the property of which the plaintiff was a vendee unable to procure a deed from his vendors. The defendant says he did promise to pay the $250, but adds that the payment was not to be made until after he “ could sell the property and get whole.” Evidently both parties thought that the sheriff’s sale under the mechanic’s ' lien would convey a marketable title to the defendant. The mistake would seem to be at the bottom of the present litigation.

On the evidence submitted, it was for the jury to say whether the contract was as contended for by the plaintiff or by the defendant.

We have examined each of the assignments of error, and while some portions of the charge are susceptible of adverse criticism, we find in none of the assignments reversible error.

There are several which relate to offers by the plaintiff to show that the mortgage upon the property had been released. It would at first appear that these offers should have been admitted. Further examination leads to a different conclusion.

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The mortgage was on the property when the defendant bought, and, under the defendant’s contention, was admissible in evidence as an additional explanation of his failure to sell the property and pay the plaintiff. It was an incumbrance which prevented a conveyance of a clear title by the original vendors. The transfers, alleged to show that subsequently the mortgagee had no valid lien on the property, were not admissible. Neither the plaintiff nor the defendant contends that the latter was bound to obtain a title beyond such as he got by the sheriff’s sale, but proof of the unmarketable character of that title was admissible under the defendant’s contention.

Furthermore, the offers of the plaintiff were not to show an expressed release of the mortgage, but a satisfaction by operation of law. Modern methods of pleading and practice have greatly broadened the scope of judicial inquiry, but there must be some point at which the introduction of new issues must stop. If the plaintiff’s offers had been admitted, a new question would have been introduced, namely, as to the legal effect of an agreement by a mortgagor to postpone the lien of his mortgage to that of another mortgage upon the rights of a vendee under contract with the owner. This inquiry would have served only to embarrass the determination of the real issue of fact between the parties. We are therefore of opinion that the judgment should be affirmed.

Judgment affirmed.