I am for reversal. Presiding Justice VAN BRUNT, in his dissenting memorandum below, said:
"When I contract to pay for property I may pay in any legal tender; when I take subject to an obligation, I may assume that I can discharge it in any kind of legal tender."
In by judgment this quotation contains the law of the case clearly and briefly stated. This was a sale at the Real Estate Exchange in the city of New York under terms of sale which provided, "The property is sold by a good title in fee simple * * * subject to a mortgage of $16,000, to be at five per cent, 3 years to run."
These sales are attended by a large number of bidders, and the purchaser is given ample time to search the title after the property is sold. In this case, by the terms, the sale was made June 6th, 1895, and the deed was to be delivered and balance of purchase money paid July 2d 1895.
The bidders rely upon the terms of sale, and no search of the title is ever made until the property is purchased.
If it was the intention to sell this property subject to a mortgage not payable in legal tender it should have been so stated in the terms of sale.
Any other rule will compel bidders to search titles for the *Page 560 terms of incumbrances before they can safely bid at the exchange.
The mere statement of this proposition, which will compel hundreds of bidders at the exchange to examine titles they may never purchase, shows how unwise and inconvenient is the rule that is sought to be established in this case.
In the legal tender case of Juilliard v. Greenman (110 U.S. 421) the Supreme Court of the United States laid down the rule (page 449) that a contract to pay a certain sum in money, without any stipulation as to the kind of money in which it shall be paid, may always be satisfied by payment of that sum in any currency which is lawful money, at the place and time at which payment is to be made.
The plaintiff, in the case at bar, on consulting the terms of sale, found that the property was "subject to a mortgage of $16,000, to be at five per cent, 3 years to run." He had the right to assume, in the absence of a statement to the contrary, that the mortgage was payable in whatever should be legal tender at the time of payment, whether it might be gold, silver, greenbacks or treasury notes.
If this general right was curtailed by the stipulations of the contract, the terms of sale should have so stated, in order to have put bidders upon their guard.
This plaintiff is not seeking to recover damages; he rests upon the presumption that all contracts are payable in legal tender unless the contrary is made to appear, and, as the terms of sale were silent as to this important point, he disaffirms the contract of sale, and asks to have restored to him what he paid at the time of the sale.
I think he is entitled to recover.
O'BRIEN, MARTIN and VANN, JJ., concur with ANDREWS, Ch. J., for affirmance; HAIGHT, J., concurs with BARTLETT, J., for reversal; GRAY, J., absent.
Judgment affirmed. *Page 561