Johnson v. Smock

1 N.J.L. 125

Opinions

Kinsey, C. J.

The parol evidence is improper; the articles are explicit enough — -that is, they afford a construction ; and sio mistake or fraud is suggested. I think upon the construction of this instrument, the deed was to be made by the first of May, 1790, that time is fixed; but none is limited for taking up the mortgage, and I do not see how we can say that the time for making the deed was to depend on Smock’s discharging the mortgage. It is true, Johnson was to convey it, free of encumbrance; be could do this by paying off the mortgage himself; besides, this mortgage was no encumbrance, because it was assumed by Smock, himself; lie knew it, and agreed to pay it. But another question arises. Is it necessary to perform a condition precedent strictly with respect to time? I think not. Gibson v. Patterson, 1 Atk. 12. If, therefore, a tender of a deed can be proved after the time, and no good reason for the refusal, it appears to me that evidence of such performance is sufficient.

Smith, J., agreed with the Chief Justice.