The defense in this action was fully made out. There was no demand by plaintiff’s agent to count the money in the bag, and no objection or doubt was expressed, that it did not contain enough. The agent swears this, and also gives it as his belief there was sufficient coin in the bag to pay the amount due, if it was all gold, and the inference is fair, that it was all gold coin, as no other, coin fell out of the bag but gold when it was thrown upon the counter. Here was a readiness to pay the money due, fully proved, at the time and place agreed upon. At the same time there was an offer by the plaintiff to deliver the kind of deed he had covenanted to deliver—a general war-" ranty deed, with a covenant against incumbrances. This deed was refused by the defendant, on the alleged ground, that the property was incumbered by a mortgage of fifteen hundred dollars upon it, then subsisting in full force, and unsatisfied. Refusing the deed offered, the defendant’s agent left the bank, taking with him the money.
At law, time is of the essence of a contract to convey land, and if the vendor is not able and ready to perform his part of the agreement on that day, the vendee may elect to consider the contract at an end. The contract in this case was to convey free of incumbrances. The proof establishes the fact, that, on the day he offered to convey and tendered the deed, there was a subsisting mortgage upon the lot to the amount of fifteen hundred dollars. The vendor therefore was not able to perform his covenant and the vendee was not bound to receive the deed, though it did contain full covenants, for it was not the covenants for which he contracted, but for a good unincumbered estate, and this he was entitled to before he paid his money. Tyler v. Young et al., 2 Scam. R. 447.
But it is said, the court improperly admitted evidence of a subsisting mortgage. The only evidence of the mortgage was the record of deeds, and to its introduction the plaintiff objected in general terms, not assigning any grounds therefor.
The record is made evidence by statute without further proof, but to use it the court can require certain preliminary proof, as that the original is lost or not in the power of the party to produce, and such proof, we apprehend, can be given orally to the court, and need not be preserved on the record unless exception be taken to it, or such proof may be waived by the opposite party. When this record was presented, the plaintiff admitted it was the record of the mortgage. The record in this case does not show that the requisite preliminary proof was not made before the introduction of the record of the mortgage, and we \ must presume, that such proof was made or waived.
It is not permitted parties to lie by, and permit evidence to be introduced without specific objections, which is competent in itself, and the objection to which is formal, and can be obviated if made, by proof, and afterwards make the introduction of such evidence ground of objection in this court. If the plaintiff was not satisfied with the record evidence of the mortgage, he should have manifested it, in order that the party producing it, might have produced the original, or accounted for its non-production.
This precise point has been decided by this court in the case of Russell v. Whiteside, 4 Scam. R. 11. The court say : “ In the absence of the contrary statement in the bill of exceptions, we are to presume that proof of the hand-writing and official character of the register was made before the admission of the certificates in evidence. Nor do we perceive that the court erred in permitting the certified copy of the deed from Jackaway to be read in evidence, etc. It does not appear that any question was made in the court below, as to the loss of the original deed, or the inability of the plaintiff to produce it; and we are to conclude that this was either admitted by the defendant, or proved by the plaintiff.” See also Gilham v. State Bank, 2 Scam. R. 247, and Harmon et al. v. Thornton, ib. 355.
This decision is not at all in conflict with that of Roberts v. Haskell, 20 Ill. R. 59. In that case there was an effort to supply the preliminary proof, which we deemed insufficient.
The set-off was properly claimed. The advance payment made by the defendant for the lot could be recovered in this manner. There was the most persuasive evidence presented to the jury, that the check given for it, had been cashed . by the plaintiff at the bank. He has no right to retain it, the contract being forfeited by his own act.
The judgment of the court below is affirmed.
Judgment affirmed.