Marks v. Parker , 97 N.J.L. 572 ( 1922 )

Pee Cueiam.

We conclude that the judgment should be affirmed, and are content to rest our decision substantially on the memorandum filed in the Supreme Court. The passage m that memorandum holding that the “existence of a mortgage would make it impossible for the vendor to perform his contract/5 should be read in connection with the earlier qualification that it did not appear that such mortgage could be satisfied out of the purchase price. Kadow v. Cronin, ante p. 301. It is -said that the existence of the mortgage was not raised in the pleadings nor litigated at the trial nor properly proved. The complaint mentions encumbrances and this covers mortgages, and the testimony shows that the mortgage was relied on at the trial as an objection to the title and without any point being made of the pleadings being limited to tenancies or leases. The mortgage as an encumbrance relied on appears in the testimony -oh both sides, including that of both the defendants, who seem to have treated it as a matter of course, and at no stage of the trial was the question ever raised that the mortgage itself or the record ox a certified copy should be put in evidence. Where in an issue as to marketability of title, the existence of a mortgage encumbrance is voluntarily admitted at the trial by the testimony of a party to be bound thereby, the best evidence rule may be considered waived, at least. See Wigm. Ev. 1508, § 1256. We may add that this point is not raised by any specification of error in the Supreme Court.

For affirmance — The Chancellor, Chief Justice, Trenci-iard, Parker, Bergen, Minturn, White, Heppenheimer, Williams, Gardner, Ackerson, Van Buskirk, JJ. 12.

For reversal — None.