"It is only when the nonperformance is of a condition precedent, or where such party has wholly refused to perform, or wholly disabled himself from completing a substantial performance, that the other party is relieved from performance or a tender thereof." Thus it seems to be clear that under the general rule the party charging the default of the other and seeking redress, where the acts are concurrent, must show a tender of performance on his part, and a demand of performance by the other party, in order to maintain an action such as this. The exceptions are failure in performance of some condition precedent, or the refusal of the party charged to perform on his part, or the impossibility or inability on his part to perform. In this case there was neither, on the part of the defendant, as I understand the authorities. There is no pretense of a refusal of the vendor, as nothing ever passed between the parties on the subject of performance. He had no condition precedent to perform. There is, however, the claim of inability of the defendant to perform. It does not seem to me that the existence of this $1,500 mortgage as a lien upon the premises on the day for closing of the contract was an inability such as the rule of the law cited contemplates. It evidently means one that the defendant was powerless to overcome. Judge Allen, in the citation from his opinion in Hartley v. James, 50 N. Y. 38, used the words, "putting himself in a position in which performance is impossible." Chief Judge Ruger, in Bogardus v. Insurance Co., 101 N. Y. 328, 4 N. E. Rep. 522, uses the words, "has wholly refused to perform," or "wholly disabled himself from completing a substantial performance." In Burwell v. Jackson, 9 N. Y. 535, Judge Selden, at page 547, uses these words: "I think it may be assumed, therefore, that the law is that, where the title of a vendor who has contracted to convey is totally destroyed, the vendee is not bound either to offer to perform on his own part or to require performance by the vendor, but may at once treat the contract as rescinded." It seems to me that the plaintiff in this case has not the right in law to assume the inability of the defendant to remove this incumbrance at any time, even up to and at the time of completing the sale. Friedman v. Dewes, 33 N. Y. Super. Ct. 450. He might at the very time of the plaintiff's paying the balance of the purchase. money, and manifesting his readiness and desire to close the sale, have been able to have the incumbrance removed. In that respect the case differs from Burwell v. Jackson, 9 N. Y. 535, for there the title of the vendor was extinguished by the sale under the mortgage before the time to complete the sale under the contract. But the counsel for the plaintiff confronts my reasons and conclusions with authorities which do not seem distinguishable from this case. He cites Morange v. Morris, *42 N. Y. 48, 32 How. Pr. 178. That was an action to recover by a vendee similar to this, and in the headnote it is laid down as the law that, when the several acts were to be performed at the same time, and the obligations of the parties in respect to them were, therefore, mutual and dependent, ordinarily, in such case, it is incumbent on each party to perform or tender a performance on his part in order to put the other party in default; but where the defendant was unable to perform his agreement for the reason that the premises were incumbered with liens, the plaintiff was excused from tendering payment and offering to perform on his part on the day specified. The case holds that the existence of the incumbrances at the time fixed in the agreement for the execution and delivery of the deed was a breach of the agreement on the part of the vendor, which put it out of his power to perform, and excused the plaintiff from tendering payment. But in that case it appears that the parties did meet, and the defendant tendered a deed with the incumbrances then upon the property, and the plaintiff refused to accept. It might be that the vendee had the right to assume, upon the vendor's own acts and conduct, that he was confessedly unable to have the incumbrances removed. That is not this case. Judge Allen, in Hartley v. James, 50 N. Y. 38, at page 44, distinguishes that case. So, also, in Bigler v. Morgan, 77 N. Y. 312,-a case brought to recover damages, Judge Rapallo, writing the opinion, thus speaks of the case of Morange v. Morris: He says that case "is cited as an authority for the propositions that in an action like this the refusal or admitted inability of a party to a contract of this description to perform dispenses not only with an actual tender of performance by the other party, but with readiness to perform. That case is not an authority for any such proposition." In Rinaldo v. Hausmann, 52 How. Pr. 190, which was, however, an action on the part of the vendor to compel the vendee to perform, Judge Van Brunt says: "I am aware that the language of the court in the case of Morange v. Morris, *42 N. Y. 48, sustains the defendant's position in this case. The court says that it is the duty of the seller to have the mortgages discharged before the time arrived at which he had stipulated to convey. The laying down of so broad a principle was not necessary to a decision of that case. The case of Hinckley v. Smith, 51 N. Y. 21, is a much later authority, and is in direct conflict upon this point with the case of Morange v. Morris. The case of Hinckley v. Smith lays down the rule that the seller must be in the position at the time he is to convey, and upon the receipt of the purchase price, to deliver just the title he has agreed to convey." But, notwithstanding these criticisms, and the distinguishing of the case of Morange v. Morris, in the case of Hewison v. Hoffman, 4 N. Y. Supp. 621, we find that decision approved and followed by the general term of the court of common pleas of the city of New York. That was an action similar to this, brought by the vendee to recover back from the vendor $100 paid at the time of executing the contract. Judge Daly, writing the opinion, says: "On the day named in the agreement of the parties for the delivery of the deed, the vendor, the defendant, was unable to perform because of incumbrances upon the property which she was to convey to the plaintiff. The existence of those incumbrances at the time fixed in the agreement was a breach of the agreement on defendant's part, which put it out of her power to per form, and excused the plaintiff from tendering payment," citing Morange v. Morris, *42 N. Y. 48. "Plaintiff was therefore not in default in not attending on the day named with the moneys or mortgage." Thus, notwithstanding the reasons assigned and authorities cited to sustain the view I entertained upon the trial, and still hold, I County Ct.] ZIEHEN V. SMITH. am confronted with the decisions of higher courts and of judges of wider experience and legal knowledge, that appear to hold that a tender of performance on the part of the plaintiff, and demand by him of performance by the defendant before suit brought, is not essential to authorize. the maintenance of an action such as this. Ingalls v. Hahn, 47 Hun, 104, is cited as holding that the existence of liens on the property is sufficient proof of the seller's default. It therefore occurs to me that my own convictions should be surrendered to those of my superiors and more experienced judicial associates. The merits of the case are with the plaintiff, and it may be well Had the sale under the foreto give him the benefit of the doubt. closure of the mortgage and conveyance thereunder been made prior to the 15th day of September, 1892, there would have been such inability, under the authorities, as would have dispensed with the necessity of tender of performance and demand of the deed by the plaintiff, but this form of disability did not arise until after It may be that, under the circumstances, a the above date. waiver of this tender and demand may be inferred, and the verdict sustained on that ground. As remarked above, this agreement between the parties seems to carry the understanding that the conveyance was to be delivered at the same time-on September 15, 1892-as the $300 payment was to be made and the $1,700 bond and mortgage given by the plaintiff, but the contract does not so expressly provide. The foreclosure action of this $1,500 mortgage was then pending. The time of the defendant to answer had expired, The parties never met for and no answer had been interposed. explanation, and neither at any time made any advance to carry out the agreement and complete the sale. A judgment sale and conveyance followed, and it may be that these circumstances authorized the inference that the defendant was unable, and had been at all times, to take care of, and have this incumbrance removed. His failure to in any way communicate with the plaintiff, or to advise him as to his purpose in reference to the same, may, together with the facts that the plaintiff was present at all times in occupation of the premises, and remained there until after the conveyance under the foreclosure, warrant a finding of a waiver of tender or performance and demand of the deed on the day named, and that the matter might be considered open and pending, and awaiting the defendant's efforts to have the incumbrance in some way removed or canceled, until it was finally rendered impossible on his part by the conveyance. And the time having thus been reached when the title passed from the defendant, the case would become one when it would fall within the exception to the general rule of inability to perform, and thus tender and demand be excused. The motion for a new trial is accordingly denied. In re SMITH'S WILL. (Surrogate's Court, St. Lawrence County. July 20, 1893.) 1. WILLS-KNOWLEDGE OF CONTENTS-PRESUMPTION. Where it appears that a will was executed with all the formalities prescribed by law, it will be presumed that it was read to testator, who, though unable to read or write, was a prudent man, and exercised more than ordinary care in the safe-keeping of his will. 2. SAME-DELUSIONS. A belief by testator, founded on rumors which he had heard, that the son of his wife was not his son, in consequence of which he disinherited such son, is not a delusion, though he may have been mistaken in such belief. Proceeding for the probate of the will, and codicil thereto, of Owen Smith, deceased. Granted. Henry E. Seaver, for proponent. H. D. Ellsworth and L. P. Hale, for residuary legatees. VANCE, S. The probate of the instruments offered as the last will and testament, and a codicil thereto, of Owen Smith, deceased, is opposed on two grounds: First, that said instruments were not the last will and testament of deceased, because of want of proof of knowledge of the contents at the time of the execution thereof; second, because of the mental condition of the deceased, it being claimed that he acted under a delusion as to the paternity of his son, which rendered him incompetent to make a will affecting the interests of such son. The evidence clearly shows that Owen Smith could neither read nor write, and it does not distinctly appear that either instrument was read to him. It clearly appears that the deceased exercised more than ordinary care concerning the safe-keeping of his will; that he was a careful, prudent, calculating man in all his business transactions; and that at the time of the execution of each instrument he declared the one to be his last will and testament and the other a codicil thereto. It is not to be presumed that a man of prudence and care affixed his mark to an instrument, and made a declaration as to what that instrument was, without knowledge of its contents. If any presumption is to be indulged, it is that he knew the contents of the paper. All the requirements of the statute as to the execution of the instruments were fully complied with, and this court cannot add another, -that because of his lack of education it must be made to appear that the instrument was read to him. The chief reliance, however, of the contestant is upon his claim that at the time of the execution of the will and codicil his father was subject to a delusion as to legitimacy of contestant. The proof shows that Owen Smith and Louisa, his wife, were married at Canton, N. Y., in 1850. That at the time they were in the employ of Minturn Harrison, in whose employ they remained for about a year after marriage. They then commenced housekeeping upon a lot of 50 acres which he held under contract, the purchase price of which was only partially paid. About 18 months after marriage there was born to them a son, Henry Smith, the contestant, their only child. The couple continued to reside on the lot before mentioned until July 27, 1892, when Owen died. Their possessions had gradually increased until it had become a farm of 125 acres, under good cultivation, and well stocked. In addition to this, there was owned at the time of his death four or five hundred dollars in money or note. He was an industrious, careful, prudent man; his only fault, aside from the alleged delusion, being the indulgence at times to excess in the use of intoxicants. At some time, (it does not appear clearly when, before 15 or 18 years ago,) there were stories afloat in the neighborhood concerning the Smith family, the nature of which the evidence does not fully disclose, which had come to the ears of Owen. When Henry was about seven or eight years of age, Owen came home from Canton, intoxicated, and while in that condition informed his wife that he had been told that Henry was not his child. This was repeated several times each year for almost 30 years, the language used being sometimes a positive assertion that Henry was not his child, and that his wife had been untrue to him, and had connection with other than himself. He never did so except when intoxicated, and never in the presence of others. Six or seven years before his death he called upon the priest of his church, asking advice as to how he should treat his wife in his will, and stated that Henry was not his son, and he did not intend to leave him any of his property. It does not appear that he ever mentioned his belief as to the illegitimacy of Henry to any person except his wife and his priest. By the will the contestant is disinherited, which he insists was the result of an insane delusion on the part of the deceased. In order to determine this question it is necessary to determine exactly what a delusion which incapacitates is. Bouvier defines a delusion as "a diseased state of the mind, in which persons believe things to exist which exist only, or in the degree they are conceived of only, in their own imaginations, with a persuasion so fixed and firm that neither evidence nor argument can convince them to the contrary." Sir John Nicholl, in the celebrated case of Dew v. Clark, 3 Addams, Ecc. 79, says: "Whenever a patient once conceives something extravagant to exist, which has still no existence whatever but in his own heated imagination, and whenever at the same time, having once so conceived, he is incapable of being, or at least being permanently, reasoned out of that conception, such a patient is said to be under a delusion." Judge Redfield, in his treatise on Wills, says: "A belief based upon evidence however slight is not delusion, which rests on no evidence, but upon mere surmise." 1 Redf. Wills, p. 86, note. All the authorities to which I have had access agree that to constitute a delusion there must be a belief in the existence as a fact of something which does not exist; that such belief must be without basis for its support, springing up without cause in the imagination of the person entertaining it, and become so firmly v.24 N.Y.s.no.11-59 |