Green v. Richards.

Mrs. Catharine Green, $100 on account of payment on house No. 71 Ferry street. Due on account of rent to date, $120. Thomas E. Richards." Endorsed.-"This is to show that I agree to sell to Mrs. Capt. Green, house and lot No. 71 Ferry street, for the sum of $2500, and that when there is $500 paid, and the back rent, I will give her the deed, and take a mortgage for $2000. T. E. Richards."

This is a contract certain and definite as to the subject matter; the price and the condition precedent, the payment of the back rent. The time is sufficiently certain; it is whenever the back rent shall be paid up and the terms of payment. complied with, which makes the defendant liable to perform on demand, within a reasonable time. Performance was demanded within a year, which is not denied to be within a reasonable time. The only material part of this contract that is not definite, is the credit to be given on the mortgage, and whether with interest or not. A mortgage payable at the end of two years, without interest, would be a literal compliance with this contract.

It has been held in this court, when one of the terms of a sale is that part of the consideration is to be secured by mortgage, payable at a time to be fixed and agreed upon by the parties, that the contract is not sufficiently definite to entitle the purchaser to a decree for specific performance. McKibbin v. Brown, 1 McCarter 13.

It was also held in Potts v. Whitehead, 5 C. E. Green 55, that when a contract stated that credit was to be given for a certain part of the purchase money, but the length of credit was not fixed, nor whether it was to be with interest, the agreement was not sufficiently fixed. The same doctrine is acted on in Nichols v. Williams, 7 C. E. Green 63.

But in those cases it was part of the agreement that time was to be given for payment. That time was a material part of the agreement, and it was left undetermined. Here there is no agreement for any time. The purchaser is not entitled to any credit. In such case the mortgage should be made pay

Green v. Richards.

able on demand; and it is the duty of a court of equity, in order to prevent a fair and just agreement from being defeated by a mere technical objection, to presume that such was the intention of the parties, and to give the agreement that construction. This makes the written agreement certain in all its parts.

This agreement does not come within the decisions which hold that an agreement to entitle to specific performance must be mutual, and such that the defendant could have had that remedy; these decisions themselves are controverted and conflicting. But they do not apply to a case where the complainant has paid a part or the whole of the consideration, or a consideration for the defendant signing the agreement; or to cases of a lease for years, with the option of purchasing during the term; or to cases where the contract, by its terms, gives to one party a right to the performance which it does not give to the other. Van Doren v. Robinson, 1 C. E. Green 259. In such cases specific performance is constantly decreed.

In this case, Richards had received from Mr. Green $100 on account of the house in Ferry street, in March, 1868, and gave a receipt in those words; and the receipt, on which the agreement is endorsed, is on account of payment on house. $200 had then been paid on this purchase. The complainants demanded a deed before bringing suit, and tendered $500 in cash, and a bond and mortgage for $2000. I think the evidence shows that enough rent had been paid to make the $500 cover all the money due in cash. It does not appear when the mortgage was made payable. But the defendant did not refuse the offer, or place his refusal on the ground that the mortgage was not according to the agreement. He refused to comply, because he held that he was not bound by the agreement.

Mrs. Green is entitled to relief by a specific performance. It must be referred to a master, to ascertain what amount of back rent is due to Mr. Richards, at the rate of $20 per month, he paying for repairs and taxes. And upon payment

Freytag v. Hoeland.

of the arrears of rent so found, if any, and $500, with interest from the date of the master's report on the arrears, and paying $2000 in cash, or securing it by mortgage on the premises, payable on demand, the defendant will be decreed to convey the premises to Mrs. Green.

FREYTAG US. HOELAND.

1. An answer, though responsive on the point in controversy, sworn to before an officer in another state, not authorized by the statutes of this state or the rules of this court to take an oath to an answer, has no weight as evidence; it must be treated as a pleading only.

2. When the controversy is as to the fact whether a deed was intended as security only, the burden of proof is on the grantor, and his oath against that of the grantee is not sufficient to change a deed absolute on its face into a mortgage.

3. But where the mortgagee admits that he required an absolute deed as security for a debt, without any recital to show what the debt was, and the mortgagor testifies that the consideration expressed in the deed was the debt it was intended to secure, the burden of proof is on the mortgagee to show that it was given as security for a greater amount.

4. The grantee in such case must re-convey on payment of his debt, and if the net rents and profits exceed the amount the deed was given to secure, and interest, he must repay such excess.

This cause was argued on final hearing upon bill, answer, replication, and proofs.

Mr. Winfield, for complainant.

Mr. A. S. Jackson, for defendant.

THE CHANCELLOR.

The controversy in this case between the parties relates to a deed given by the complainant to the defendant, for a house and lot in Jersey City, dated July 17th, 1869. Both admit that the deed, though absolute on its face, was given as secu

Freytag v. Hoeland.

rity only, and is, therefore, in effect a mortgage. The complainant contends that it was given as security for the sum of $700, advanced at the time and mentioned in the deed as the consideration, and for that only. The defendant contends that it was given not only as security for that sum, but also for previous advances to the amount of about $5300, made by him to Freytag and his family, and for which he was indebted to defendant. Freytag not only denies that the deed was intended to secure these advances, but that they were ever made to him or on his credit. He states that such part as was advanced, was advanced to his wife and daughter for a dif ferent consideration, and that he is not and never was liable for it. On both these points, whether the mortgage was given to secure the $700 only, or all debts due from Freytag, and the amount of these debts, if any, there is a mass of conflicting and contradictory testimony. The circumstances that surround the case are novel and peculiar, and it is not easy to decide which side to believe. The conflict is such as involves perjury somewhere.

Hoeland is, by occupation, a butcher; he followed his trade in Newark, in this state, and afterwards went to California and to Nevada, where he also followed it, and in addition, speculated in lots and mining rights. He was successful in making money to the amount of some thousands of dollars, and advanced at least $2000 or $3000 to the wife and daughter of Freytag.

Freytag was a carpenter; he worked at his trade in Newark in 1852 and 1853, when he became acquainted with Hoeland, who boarded in his family for some months of the time. At this time there was a proposition from Mrs. Freytag to Hoeland, or from Hoeland to Mrs. Freytag, to elope together and leave Mr. Freytag and the child. Both testify that there was such a proposition; each testifies that the offer came from the other party, and that it was virtuously rejected by the party testifying. The result was that Hoeland, for a time, ceased boarding there, and he and Mr. Freytag had an encounter, in which Freytag received a wound over his eye,

Freytag v. Hoeland.

the scar of which remains. Mrs. Freytag says the proposition was made through a Mrs. Englehorn. Mrs. Englehorn denies this and supports Hoeland's version of the matter. The weight of testimony, as to this affair, is on Hoeland's side. After this, Hoeland was again received as a boarder by Mrs. Freytag, and was on very friendly and confidential terms with her. When Katinka, the daughter of Mr. and Mrs. Freytag, who was born in 1846, grew up towards womanhood, Hoeland, who was unmarried, took a fancy to her, and expressed a desire to make her his wife when the proper time should arrive. This seemed to be assented to by Mrs. Freytag, and she and Hoeland seemed to act in unison in attempting to accomplish this object. Katinka knew of their purpose and submitted passively to their measures, though it does not appear that she ever positively assented to it, or was willing to bind herself by an engagement to Hoeland. Freytag knew of this design and acquiesced passively, as he seemed to do in everything done by his wife; he was of an easy disposition and much under her control, and though a good workman and earning good wages, he did not accumulate; he had little capacity for business, but was easily controlled by any one in whom he had confidence or who came in contact with him.

Katinka showed some talent for music and singing, and took lessons to fit her for taking part in concerts and the opera. Money was solicited from Hoeland by her mother and herself to enable her to continue her lessons, and was furnished by him. In 1868, Freytag, his wife, and daughter went to Europe; he returned, but Mrs. Freytag and Katinka remained and went to Italy and stayed at Milan for Katinka's musical education. There Hoeland sent money to them at the earnest and repeated requests of the daughter, who, in one of her letters, almost promised to come back to him in San Francisco. He assures her that he could support her and her dear mother. The whole tone of the correspondence shows that on both sides it is conducted without regard to Freytag,