Ziehen v. Smith
Court of Appeals of New York
42 N.E. 1080 (N.Y. 1896)
The plaintiff agreed to buy a tract of land from the defendant. The plaintiff paid $500 down upon the execution of the contract. The day designated by the contract for mutual performance—the remainder of the payment and transfer of the deed—was September 15, 1892. Unbeknownst to either party, there was a third party mortgage on the land, and an action to foreclose the mortgage had commenced on July 21, 1892. The plaintiff did not offer to pay the purchase price, nor did he demand performance from the defendant on September 15. The foreclosure was later granted on September 30. The plaintiff brought suit to recover his down payment. The trial court found in his favor and the defendant appealed.
Rule of Law
Holding and Reasoning (O’Brien, J.)
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