Helmholz v. Everingham

Cole, J. The deed was made in fulfillment of the written contract, and if there was any uncertainty upon the face of the deed, whether the grantee had agreed to pay the mortgages with the accruing interest upon them, it was clearly competent to introduce the contract in evidence to remove the doubt upon that point. The deed stated that the property was conveyed subject to the mortgages, which were bearing interest and were assumed to be paid by the grantee as a part of the purchase-money. If this clause in the deed, and that relating to the entire consideration, left the matter in doubt whether the grantee had agreed to pay the accruing interest on the mortgages, surely this doubt is removed by the language of the contract. For the contract specified that the vendor, upon the payments being made as therein provided, would convey the premises by a good and sufficient deed, “free and clear of all legal liens and incumbrances, except two certain mort- ' gages executed by the party of the first part, one for $1,500, due October 29th, 1868; and one for $1,000, due September 30th, 1873, with interest, which mortgages the party of the second part assumes and agrees to pay.” [270] The interest on these mortgages was payable annually, and really no interest had matured upon either mortgage at the time the deed was executed. But the mortgages bore interest; and this interest, as well as the principal, the vendee assumed to pay. This, we think, is very clear upon the face of the written contract and deed. And, as it was the duty of the court to construe these instruments, and determine the extent of the liability of the plaintiff, there was no error in directing a verdict for the defendant. By the Court. — -The judgment of the county court is affirmed.