Kortright v. Cady

The common law recognised two kinds of landed security, respectively known as the vivum vadium,, and mortuum vadium. The vivum vadium consisted of a feoffment to the creditor and his heirs, until, out of the rents, and profits, he had satisfied himself his debt; the creditor took actual possession of the estate, and received the rents, and applied them, from time to time, in liquidation of the

But a distinction was taken between a sum, in the-nature of a gift, secured on the land, and where the security was given to secure a debt due. The former was, in the case of a tender and refusal, absolutely lost; but-.

Coke, in his Commentaries, in reference to these rules, :as applicable to tenders and their effect, says, it is to be implied, that the tender is made at the due time and place, •according to the condition. The reason for this is obvious, under the rules already stated, as applicable to the .■absolute vesting of the estate, in England, in the mortgagee, upon the condition broken. If tender or payment was not made at the law-day, according to the condition, the estate vested absolutely in the mortgagee; and by the strict rules of the common law, all interest or right therein of redemption, passed from the mortgagor. If the mortgage-debt was afterwards paid by the mortgagor, a reconveyance of the estate by the mortgagee was neces

*The rule in England. was, therefore, ancient and well settled, that payment on the law-day extinguished the interest of the mortgagee in the lands mortgaged; and tender and refusal, at the same time, produced the same result. But payment after, and acceptance, did not revest the estate in the mortgagor, without a reconveyance from the mortgagee; and a tender and refusal would, of course, not produce that result. The mortgagor's only remedy was to avail himself of the benefit of the rule in equity, and file his bill to redeem.

The only question presented for our consideration in this case is, whether a tender of the sum due on a mort

In Hunter v. Le Conte ( 6 Cow. 728 ), the supreme court held, that a tender of *rent takes away the right to distrain, till a subsequent demand and refusal; but it does not take away the right to sue for the rent as for a debt; it only saves the interest and costs. And that a tender of rent makes a distress wrongful, though the tender be not made till after the rent-day. It will readily be perceived, that the principle of this case bears

But a still closer analogy to the present question is presented by the law of tender; as to the lien on goods pledged. Lord Ch. J. Holt, in his opinion in the celebrated case of Coggs v. Barnard (2 Lord Raym. 909), speaking of the fourth class of bailments, says: “ If the money for which the goods are pawned be tendered to the pawnee, before they are lost, then the pawnee shall be answerable for them, because the pawnee, by detaining them, after the tender of the money, is a wrongdoer, and it is a wrongful detainer of the goods, and the special property of the pawnee is determined.” So also Comyn : “ By tender of the money, the property in the goods is determined, and the pledge ought to be returned; but if the pawnee refuse to restore the pledge, upon tender, trover lies against him.” (Oomyn’s Dig. tit. Mortg. A, and cases there cited.) Holding, as we do, therefore, in this state, that the land mortgaged is but a security for the debt due to the mortgagee, in other words, a pledge to him to secure its payment, it is difficult to see, why the principles enunciated and well settled in reference to the pledge of personal property do not apply, and why a tender and refusal, at any time, of the full amount of the debt due, does not extinguish the lien of the mortgagee or pledgee, in the one case, as it clearly does in the other.

But, I think, we are not left at liberty to settle this case on principle, but are to regard it as authoritatively disposed of by the courts of this state. A very careful examination of the decisions has brought my mind to the conviction, contrary *to my first impression, that we should regard the question now presented as

The first in chronological order is that of Jackson v. Crafts ( 18 Johns. 110 ), decided in the supreme court, in 1820. In that case, the defendant, the mortgagor, while the advertisement of the sale of the mortgaged premises was pending, tendered to the plaintiff, an assignee of a bond and mortgage on premises occupied and owned by the defendant, the amount due on the mortgage and the expense of the advertisement of sale. The tender was made to the attorney for the plaintiff, who had in his ' hands the bond and mortgage for foreclosure; the money was refused, and the sale took place, and the plaintiff became the purchaser and brought ejectment for the premises. The case turned upon the effect of the tender, made, as it was conceded, after the law-day. The court held, that the tender and refusal, although made after the law-day, extinguished the lien of the mortgage, and that the plaintiff could not recover. This case has been criticised, and its authority attempted to be weakened, because, in the citations from Bacon and Coke, the dis-' tinction was not noticed that they referred to and spoke ,.of the effect of tenders at the law-day. -But an examination of the context of the opinion shows, I think, that the learned judge who delivered it was not unmindful of this fact, and intended to hold that, in the light mortgages were regarded in this state, it was quite unimportant whether the tender was made at the law-day or after. The court, in that case, certainly held, that a tender after the law-day extinguished the lien of the mortgage.

In Merritt v. Lambert ( 7 Paige 344 ), decided by Chancellor Walworth, in 1838, he held, that a tender of the amount due on a mortgage, after the law-day, did not extinguish the lien of the mortgage; he reviews the decis

*The same question arose again in the supreme court, in the case of Edwards v. Farmers' Fire Insurance and Loan Company ( 21 Wend. 467 ). It is to be observed, that this case and that of Merritt v. Lambert originated from the same transaction. Edwards, the mortgagor, after the law-day had passed, tendered to the defendants, the mortgagees, the full amount of the mortgage, and the costs and expenses of a foreclosure and sale, upon which the defendants had become the purchasers. It was contended on the part of the plaintiff, and so held by the court, that the defendants, by the sale at which they became purchasers, on the foreclosure of a mortgage' to them, stood in the same position they did originally as mortgagees, and had no higher nor other rights or equities. Other questions arose in the case; but the main one discussed, and upon which the supreme court passed, was, whether the tender and' refusal, after the law-day, extinguished the lien of the mortgage. The opinion of the court was delivered by Co wen, J., who exhausted the law on the subject; his reasons and the authorities there cited seem to me fully to sustain the conclusion to which he arrived, that in this state, a tender and refusal of the amount due, at anjr time after the mortgage-debt became due, extinguished the lien of the mortgage. Chief Justice Nelson concurred in this result—Justice Bronson dissenting.

The case was taken to the court for the correction of errors, and the judgment of the supreme court was affirmed. ( 26 Wend. 541 .) Two opinions were delivered in that court: one by Chancellor Walworth, in favor of reversing the judgment of the supreme court, on two grounds—first, that the agreement for sale made by the company with the Merritts, mentioned in the pleadings, was a valid sale by the defendants of the premises, within f ' ■" r'f their charter, and that, consequently, they

The same question was again presented in the supreme court in Arnot v. Post ( 6 Hill 65 ). The court was then

The judgment in this case was reversed in the court for the correction of errors, by a vote of eleven to nine. ( 2 Denio 344 .) Senator Hard, who delivered the first opinion for reversal, says'“ It is, undoubtedly, a well-settled principle, that a tender at the day, of the amount secured by a mortgage upon lands, extinguishes the lien. It has been decided, in this state, although the principle is a departure from the ancient law, that a tender after the day and before foreclosure discharges the lien.” But he adds, that “ where the mortgaged has been foreclosed, there is no authority for saying that a tender to the purchaser under the foreclosure, will extinguish Ms title.” He then discusses the cases of Jackson v. Crafts and Edwards v. Farmers’ Loan Company, and holds, that they decide nothing in conflict with this proposition. Upon this ground, he was for reversal of the judgment of the supreme court; and he certainly advances nothing in conflict with what he states had been decided in this state, to wit, that a tender after the day and before foreclosure discharges the lien. An examination of the opinion delivered by Senator Porter, will show that his vote for reversal proceeded on the ground that the purchaser at the mortgage-sale could not be divested of the title he

It is true, that Senator Johnson, in his opinion, proceeds to show that the cases of Jackson v. Crafts and Edwards v. Farmers’ Loan and Trust Company fail to establish the rule that an unaccepted tender to the creditor, by one entitled to redeem a mortgage, made after the law-day, will extinguish the lien of the mortgage. After discussing these cases, he says:—“I think, therefore, it may be safely assumed, that there is no binding authority requiring us to hold that a mere tender, after the day of payment has passed, will have the effect o'f discharging the lien.” He then discussed the effect of the sale upon the right *of redemption; and, upon both grounds, was in favor of reversing the judgment of the supreme court. Senator Sedgwick concurred with Senator Johnson substantially, and Senators Bockee and Clark delivered verbal opinions in favor of reversing, on the ground that a tender after the law-day did not extinguish the lien. Talcott, Senator, who delivered an opinion for affirmance, discusses both grounds; and, in reference to the tender extinguishing the lien of the mortgage, says, after citing the cases of Jackson v. Crafts and Edwards v. Farmers’ Loan Company, and that of Burnett v. Denniston ( 5 Johns. Ch. 35 ):—“ These cases hold that a tender will discharge the lien of the mortgage, though not made until after the law-day; and that doctrine is in accordance with the theory of mortgages now well established by a series of recent decisions.” Gardiner, President, delivered an opinion in favor of affirmance, discussing only the effect of the sale; and Senator Lester also delivered an opinion for affirmance, on what grounds it is not stated. Assuming that the nine members who voted for affirmance concurred in the opinion of Senator Talcott, and that the five Senators who voted for rever

This brief review of the course of decisions in this state, it is submitted, shows that, in truth, the rule has prevailed here, and been well recognised, ever since the decision of Jackson v. Crafts, in 1820; and that the doubts thrown upon that decision by the Chancellor, in Merritt v. Lambert, have never been adopted by any other court in this state, but were distinctly repudiated and overruled by the court of errors in Edwards v. Farmers’ Loan and Trust Company, and by the supreme court subsequently in Arnot v. Post; and this rule was again affirmed in that case by the court of errors, in 1845. We are bound, therefore, I think, to regard this as the settled law of this state, and are not at liberty to return ’ J to ""'the old rule of the common law, which has been shown to be wholly inapplicable to the light in which mortgages are regarded in this state.

It is not perceived, how the mortgagee is to be embarrassed, or his security impaired, bj the adoption of this rule, as seems to be supposed by the Chancellor in Edwards v. Farmers’ Loan Company ( 26 Wend. 552 ). If the mortgagor does not tender the full amount due, the lien of the mortgage is not extinguished. The mortgagee runs no risk in accepting the tender; if it is the full amount due, his mortgage lien is extinguished and his debt is paid; this is all he has a right to demand or expect, and all he can, in any contingency, obtain. His acceptance of the money tendered, if inadequate and less than the amount actually due, only extinguishes the lien pro tanto, and the mortgage remains intact for the residue. A much greater hardship might be imposed, and serious injury be produced, by holding that the mort

The only remaining question to be considered is, whether the tender in this case was well made, it not being followed with the allegation of touts temps prist, and the money not having been brought into court. It will be seen, by reference to the authorities, that these are not required, when the tender has only the effect of extinguishing the lien, and does not operate to discharge the debt or sum owing. In the latter case, the averment of touts temps prist, followed up by bringing the money into court, is essential to a good plea of tender. (Hume v. Peploe, 8 East 168; Giles v. Hartis, 1 Lord Raym. 254.) But if a *man makes a bond for the payment of a loan of money, and afterwards make a defeasance for the payment of a lesser sum at a day, if the obligor tender the lesser sum at the day, and the obligee refuse it, he shall never have any remedy b}r law to recover it, because it is no parcel of the sum contained in the obligation. And in this case, in pleading of the tender and refusal, the party shall not be driven to plead that he is yet ready to pay the same, or to render it in court. (Co. Litt. note to § 335.) The same principle was held by the supreme court of this state, in Hunter v. Le Conte ( 6 Cow. 728 ), and cases there cited.

No question in reference to the taxes arises in this cause, upon the facts found by the referee. The referee

After the suit was commenced to foreclose the mortgage, Cady, who had become the owner of the land, tendered the amount due, with the costs, which being refused, he set up the tender in his answer, in bar of the further maintenance of the action. The only question in the case is, whether a tender, made after a mortgage is due, by the owner of the lands mortgaged, discharges the lien.

Forty years ago, this question was fully determined by the supreme court of this state, in the case of Jackson v. Crafts ( 18 Johns. 110 ). Mr. Justice Woodworth, in delivering the opinion ef the court, observed:—“From the nature of the interest the mortgagee has, there is no necessity of a reconveyance by him to the mortgagor, after the mortgage has been paid. When that is done, the mortgagee has no title remaining in him to convey, and consequently, by our laws, on payment of the money, he is not deemed a trustee, holding the legal estate for the benefit of the mortgagor. The only question, then, is, whether tender and refusal are equivalent to ^payment.” Having thus truly stated the relation between mortgagor and mortgagee, according to the law as it was then, and has been ever since, well settled in this state, he cited some of the early English authorities, holding that a tender of the money due discharged the land from the lien.

Nearly twenty years after this decision was made, the same question again arose concurrently, or nearly so, both in the court of chancery and the supreme court. The case in each of those courts originated in the same trans

The controversy in chancery was upon a bill filed by the Merritts to enforce the specific performance of a contract with one Lambert for the exchange of the same lands for other real estate in 'the city of New York; and the question was, whether they could make title to the said lands in Buffalo. Before filing that bill, the heirs, of Tibbetts had conveyed to *the Merritts, in pursuanee of the contract of the company; but that conveyance was given after the above-mentioned tender. (Merritt v. Lambert, 7 Paige 344 .) The question of title in both of these controversies depended on two considerations ; First, did the lands remain in the hands of the

In giving his views upon the last-mentioned question, the Chancellor criticised the opinion of Judge Wood-worth in Jackson v. Crafts (supra), for the reason that the English authorities which he referred to related to a tender on the day when the mortgage-debt became due. (Bac. Abr., tit. Tender, F.; Co. Litt. 209 b, § 338; 20 Viper, tit. Tender, N. § 4.) On this criticism, I shall make one or two observations. By the ancient common law, a mortgage was a grant of land defeasible on the condition subsequent of paying the money at the exact time specified. (1 Powell on Mortgages 4.) On failure to perform that condition, the grant was absolute, and neither tender nor payment made afterwards could have the effect to revest the title. The specified timé of payment was called the law-day, because, after default, the legal rights of the mortgagor were gone. The estate became vested i:i the mortgagee absolutely, because the original grant was freed from the condition. “For these reasons,” the Chancellor himself remarked, “ it is, that the mortgagor, or his assigns, or subsequent incumbrancers upon the mortgaged premises, are driven to a bill to redeem, where ' the mortgagee refuses to receive what is equitably due

It seems to me, therefore, that the authorities cited by the supreme court, on the effect of tender, were extremely pertinent to the question, because they showed very conclusively that a tender at the law-day had the same effect on the mortgage as a payment on that day. Underlying this particular proposition, of course, was the more general doctrine, that when a certain effect must be given to a payment, a tender will have a like effect. This was what the supreme court undoubtedly meant, and the authorities cited simply showed the application of the principle to the law of mortgage. The principle itself, or its application, was not questioned by the Chancellor; but he did not consider, so far as appears, that the rule had become entirely settled, giving to a payment after

*1 turn now to the controversy which arose concurrently in the supreme court, and directly presented the question for the second time in that court. (Edwards v. The Farmers’ Fire Insurance and Loan Company, supra.) At the trial, the circuit judge had ruled in favor of Edwards, the mortgagor, upon both the points, above stated; that is to say, he held that, notwithstanding the contract of sale to the Merritts, the lands in question still remained in the hands of the company unsold,. and that the tender after the law-day extinguished the lien of the mortgage; the foreclosure itself having no. contrary effect, according to the express provision of the charter. The plaintiff had a verdict accordingly ;• a new trial was moved for in the supreme court, and denied— the opinion of the court being delivered by Mr. Justice Cowen, who examined both these questions, and especially the one now presented to us, at great length and with great ability. In the course of the discussion, he also spoke of the provision in the charter as an extension, of the law-day; but to that consideration, I think, only small importance should be attached, for the charter only extended the “ right of redemption,” in other words, the right to pay off the mortgage, leaving the effect of an un-' accepted tender to depend, as it did before the foreclosure, upon general principles of law. If the concurrence of Chief Justice Nelson had been placed on this special and narrow ground, undoubtedly, he would have so stated.. Mr. Justice Bronson dissented from the conclusion; but whether on the ground that the executory sale to the Merritts had cut off all the rights of the mortgagor, or on the ground that a mere tender does not remove the lien of a mortgage, does not appear.

Senator Verplanck delivered an opinion in favor of affirmance, discussing, on the other side, the same questions and no others; he made no attempt to sustain the decision on the ground that the law-day of the mortgage was extended by the charter, in any sense different from a mere continuation of the right to redeem or pay off the

Tlius 'far it would seem that no legal proposition was ever more firmly settled by a course of adjudication, than the one which this case presents. It is somewhat extraordinary, therefore, that there is a further history of the question. In Arnot v. Post ( 6 Hill 65 ), the action was ejectment to recover lands which had been mortgaged by Vial to Winans. The plaintiff’s title was under a sale upon a judgment recovered against the mortgagor, soon after the giving of the mortgage. The defendant was in possession, and his title was under a sale upon the foreclosure of the mortgage, by advertisement, according to the revised statutes (2 R. S. 546, § 8), which saved the rights of judgment-creditors and of other mortgagees from the effect of such sales. The sale on the judgment

The case* was carried to the court of errors, where the judgment was reversed (Post v. Arnot), 2 Denio 344 ); and the material inquiry now is, whether that decision reversed-the rule on the point now under consideration, or unsettled the law which had been so well established. A little attention to the case will show that it did not. The reversal was by a vote of eleven to nine; so that the change of a single vote would have produced a different result. On the argument of the case, the three points above mentioned were urged on behalf of the plaintiff in error. Six of the senators delivered written or oral opinions in favor of reversal, of whom' only two, who did not express their views in writing, placed that conclusiofi on the single ground that the tender did not discharge the mortgage. The senator (Mr. Porter), who delivered

Such being, as I think, the clear result of the authorities, a renewed discussion of the question may seem to be unnecessary. I cannot help saying, however, that a decision by this court in opposition to the rule laid down in the cases referred to, would introduce into the law of mortgage an inconsistency too plain to escape observation. In the early history of that law, the courts of equity, departing from -the letter of the contract, *but adhering to the intention of the parties, adopted the just and liberal doctrine, that a mortgage was but a pledge or security, always redeemable until foreclosure; the courts of law followed in the same direction. As Lord Kedesdale observed (Mitf. 428): “ The distinction between law and equity is never in any country a permanent distinction; law and equity are in continual progression, and the former is constantly gaining upon the latter. A groat part of what is now strict law was formerly considered as equity, and the equitable decisions of this age will unavoidably be ranked under the strict law of the next.” Such, pre-eminently, has been the course of jurisprudence on this subject. The doctrines originating in the courts of equity, respecting the rights of mortgagor and mortgagee, have been incor

This has been true in substance, for nearly a century past. In Martin v. Mowlin (2 Burr. 978), decided by the English king's bench in 1760, it was held, that whatever words in a will would carry the money due upon a mortg igo, would carry the interest in the land. Lord Mansfield said—11 A mortgage is a charge upon the land, and whatever would give the money would carry the estate in the land -along with it; the estate in the land is the same thing as the money due upon it. It will be liable to debts; it will go to the executor; it will pass by a will not made and executed with the solemnities required by the statute of frauds. The assignment of the debt, or forgiving it, will draw the land after it as a consequence; nay, it would do it, though the debt were forgiven only by paroi.” So, in The King v. St. Michaels (Doug. 632), it was said by the same judge, that “ a mortgagor in possession gains a settlement, because the mortgagee, notwithstanding the form, has but a chattel, and the mortgage is only a security.” To the same effect is The King v. Edington (1 East 288), and such is the uniform tenor of the English authorities. (See 6 Conn. 159 .)

In this state, the rules of law and equity in regard to mortgages have never differed in any degree; it being c^octr*ne *°f l?oth systems, that a mortgage is but a personal interest merely. This proposition, in its full length and breadth, was determined in Runyan v. Mersereau ( 11 Johns. 534 ), where the question arose in the most direct manner, whether the freehold was in the mortgagor or mortgagee. The plaintiff, deriving title under the mortgagor, sued in trespass for cutting timber; the defendant justifying under a license from the mortgagee. It was held, that the action was maintainablé; the decision being placed explicitly on the ground, that the former was the real 'owner of the land, while the latter had a chattel interest only. So, it has been held in re

But it has been said, that the mortgagee could maintain ejectment against the mortgagor, until our revised statute i abolished that remedy in such a case, and that even since fhose statutes, the mortgagee being in possession, may retain it, until the debt is paid. All this is true; but it presents no anomaly or inconsistency in the law. The mortgagee’s right to bring ejectment, or, being in possession, to defend himself against an ejectment by the mortgagor, is but a right to recover or to retain the possession of the pledge, for the purpose of paying the debt. ( 6 Conn. 163 .) Such a right is but the incident of the debt, and has no relation to a title or estate in the lands. Any contract for the possession of lands, however transient or limited, will carry the right to recover that possession; and such was deemed to be the nature and construction of a mortgage, *it being considered, that the parties intended the possession of the thing hypothecated should go with the contract. Ejectment was not, in fact, a real action at the common law; that remedy, in its origin, was only to recover possession according to some temporary right; and it was only by the use of fictions, that the title was at length allowed to be brought into controversy. (3 Bl. Com. 199, 200.) When the legislature, by express enactment, denied this

There are terms of the ancient law which have come down to us, having long survived the principles of which they were the appropriate expression. Thus, the words “law-day” once, and very expressively, marked the time when all legal rights were lost and gone by the mortgagor’s default; there is now no such time, until foreclosure by a judicial sentence, or sale under' a power. But the term is still in use, serving no other purpose than to engender confusion and uncertainty in minds which derive their conceptions from words rather than things. So, we have the terms, “ redemption” and "equity .of redemption,” which belonged to a systern of law that gave the legal estate, defeasibly, before default, and absolutely, afterwards, to the mortgagee, and which, while that system prevailed, were descriptive of the mortgagor’s right to go into equity, on the ^condition of paying his debt, to redeem a for-felted estate and demand a reconveyance. These descriptive words yet survive, and are in use, although the ideas that they once represented have long since be

The proposition, that a tender of the money due on a mortgage, made at any time before a foreclosure, discharges the lien, is the logical result of premises which are admitted to be true. These are, that the mortgagor has the same right, after as before a default, to pay his debt, and so clear his estate from the incumbrance; and that payment being actually made, the lien thereby becomes extinct. We have, then, only to apply an admitted principle in the law of tender, which is, that tender is equivalent to payment as to all things which are incidental and accessorial to the debt. The creditor, by refusing to accept, does not forfeit his right to the very thing tendered, but he does lose all collateral benefits or securities. ( 3 Johns. Cas. 243 ; 12 Johns. 274 ; 6 Wend. 22 ; 6 Cow. 728 ; Coggs v. Barnard, 2 Lord Raym. 916.) Thus, after the tender of a money debt, followed by payment into court, interest and costs cannot be recovered. The instantaneous effect is, to discharge any collateral lien, as a pledge of goods or the right of distress. It is not denied, that the same principle applies to a mortgage, if the tender be made at the very time when the money is due; if the creditor refuses, he justly loses his security. It is impossible to hold otherwise, although the tender be made afterwards, unless we also say, that the mortgage, which

It is said, that mortgagees will be put to great inconvenience, if, at any period, however distant from the time of maturity, they must know the amount of the debt and accept a tender, on peril of losing their security. The force of this argument is not perceived; as a tender must be unqualified by any conditions, there can never be any good reason for not accepting the sum offered, whether it be offered when it is due or afterwards. By accepting the tender, the creditor loses nothing and incurs no hazard; if the sum be insufficient, the security remains; it is only by refusing, that any inconvenience can possibly arise. But, whatever may be the consequences of refusal, the creditor may justly charge them to his own folly. The judgment of the supreme court must be reversed, and a new trial granted.

(Dissenting.)—The only question involved in the case is, Avhether the tender made by the defendant, Cady, under the circumstances, was effectual to extricate the premises in question from the lien created by the mortgage of Blunt to Miller. This tender Avas made after the day provided in the bond and mortgage for the payment of the money, Avhich is called the latv-day. If the sum tendered was sufficient in amount, and AA7as made to the proper person, the question is reduced to the single point, Avhether the lien of a mortgage is, ipso facto, discharged by a tender of the amount due, made after the laAv-day; because, if it is, there is no necessity, in an answer setting it up, of the allegation of tout temps prist, or of any evidence to sIíoav that the tender has been kept good, neither of Avhich is contained in the present case; but the defendant *relies solely upon the fact of a tender and refusal as equivalent to payment, for the purpose of extinguishing the lien of the mortgage.

In the case of a mortgage, which is collateral to the debt, it is agreed, that a tender may be made by the person owning the equity of redemption, which will extinguish the lien of the mortgage for ever, without affecting the debt. The primary object of a foreclosure-suit is to enforce the lien, and if that is met by a sufficient tender, the cause of action is gone and cannot be restored, by a subsequent demand and refusal. It is important, therefore, to consider whether the tender, in the present case, being made after the law-day, if good in other respects, had the effect to discharge the lien of the mortgage.

In the case of Jackson v. Crafts ( 18 Johns. 110 ), it was decided, that the tender, in" that case, which had been made long after the time appointed in the mortgage, had the effect to discharge the land from the lien of the mortgage. The question of the time when the tender was made, does not appear to have been raised; nor does the distinction between a tender made on the day, and one made afterwards, appear to have been considered by the court. The authorities cited and relied upon by Judge Woodworth, who delivered the opinion of the court, are, Bacon’s Abridgement, title Tender (F.); Coke on Little-'

In Merritt v. Lambert (supra), the Chancellor says: “The correct principle, as intended to be laid down by Littleton and Coke, is, that if there is a tender of the mortgage-money, at the time and in the manner prescribed in the condition of the mortgage, and the mortgagee refuses to receive it, the condition is complied with; and the estate reverts back to the mortgagor, by the express terms of the instrument. So that if the mortgagee is so unwise as to refuse his money, when it is tendered at the time and place and in the manner prescribed in the instrument itself, he necessarily must lose his security upzon the land, which was merely collateral to the debt; although the mortgagor may still be liable for the money, where there is an existing indebtedness. But if the money is not paid by the day, the condition on which the land was to revert to the mortgagor has not been complied with; and the interest of the mortgagor in the land is then reduced to a mere equity of redemption, and an actual payment, not a mere tender, theii becomes necessary, to discharge the legal and equitable lien of the mortgage upon the land.” In the Farmers’ Fire Insurance and Loan Company v. Edwards, in the court of errors ( 26 Wend. 541 -54), Verplanck, Senator, says, that the ancient common-law doctrine, as thus stated by the Chancellor in Merritt v. Lambert, is undoubtedly stated with precision. They both agree that the authorities cited by Judge Woodworth, in Jackson v. Crafts, were inaccurately applied to a case of payment after the day.

Afterwards, came the case of Edwards v. The Farmers' Fire Insurance and Loan Company, ( 21 Wend. 467 ), which was an action of ejectment tried at the Erie circuit, in July 1837. The action ivas brought to recover certain premises Avhich had been mortgaged by the plaintiff to the defendants as security for a loan, and Avhich had been bought in by the defendants, at a master’s sale, in pursuance of a decree of foreclosure of such mortgage, and duty conveyed to them by the master ; and, subsequently, the plaintiff had tendered to the defendants the full amount of the moneys due upon the mortgage and the costs of foreclosure, Avhich the defendants refused to receive, Avhereby the plaintiff contended, under the circumstances of the case, that he had become entitled to be restored to the possession of the premises. The plaintiff recovered a verdict, Avhich the defendants moved to set aside and for a new trial; the motion ivas denied by the supreme court, in July 1839.

It is important to state, that the act incorporating the defendants (Laws of 1822, c. 50, p. 42, &c.), the second section of which authorizes the company to loan money on bond and mortgage, provides in the third section, among other things, “ that in all cases Avhere the said corporation have become the purchasers of anjr real estate on which they have made loans, the mortgagors shall have the right of redemption of any such property, on payment of the principal and interest and costs, so long as it remains in the hands of the corporation unsold.”

The opinion of the court Avas delivered by Justice Cowen, avIio, after disposing of some preliminary ques

The case does not shów that the court decided anything on the particular question under consideration; all that was decided was, that a new trial should .be denied. Upon which of the two grounds stated by Judge Cowen the chief justice placed his concurrence, or whether upon both, does not appoear. If he regarded the clause in the

The case was afterwards taken to the Court of Errors, where the judgment of the supreme court was affirmed by a vote of eleven to nine. ( 26 Wend. 541 .) Two opinions were written upon that decision; one by the Chancellor, for reversal, in which he adheres to his views upon the effect of a tender after the day, as expressed in Merritt v. Lambert, and the other by Senator Verplanck, for affirmance, in which he expresses his full concurrence in all the views and positions of Judge Coaven in the same case, in the supreme court. The case does not show upon AA’hat grounds any of the members of the court, except the Chancellor and Senator Verplamck, based their decisions. All the votes for affirmance, except Senator Verplanck’s, might Avell have been on the ground statedx by Judge Coayen in the court beloAv. We see, therefore, that the case is no authority upon the precise question Avhich Ave are called upon to decide in the case at bar.

The case of Arnot v. Post and others ( 2 Denio 344 ) comes nearest to deciding the precise point now before us of any of the cases in this state, excepting those of Jackson v. Crafts, in the 18th of Johnson, and Merritt v. Lambert, in the 7th of Paige.

Arnot, the plaintiff, claimed title by virtue of a purchase by him of the premises in question, at a sale thereof by the sheriff, on an execution issued upon a judgment against Vial and two ^others, docketed August 6th, 1827, and a deed from the sheriff in pursuance thereof. On the 21st of September 1838, and after the deed from the sheriff to the plaintiff, which "was dated in May 1838, the latter tendered to Benjamin the principal and interest due on the mortgage, with the costs of the foreclosure, which Benjamin refused to receive. The circuit judge decided that the tender discharged the lien of the mortgage, and that the plaintiff was entitled to recover; the supreme court, in October 1843, denied a motion for a new trial, and ordered judgment for the plaintiff.

In delivering the opinion of the court, Bronson, C. J., takes the ground, that the plaintiff was not affected in any respect by the statute foreclosure and sale to Benjamin; that the statute in force at the time of the foreclosure sale (2 R. S. 546, § 8), declared that subsequent mortgagees and judgment-creditors should not be prejudiced by any such sale, nor should their rights or interests be in any way affected thereby; and that, therefore, the tender should have the same effect as if no such foreclosure had ever been had. In this, it seems to me, he was clearly

I think, I have shown, that, although the principle was asserted in the case, by Cowen, J., in the supreme court, and by Verplanck, Senator, in the court of errors,' yet, that the contrary was as broadly asserted, and that the case proves nothing with certainty on either side of the question.

The case of Arnot v. Post, which we are now reviewing, *was afterwards taken to the court of errors, • where the judgment of the supreme court was reversed by a vote of eleven to nine. Upon the decision in the court of errors, seven written and two oral opinions were delivered. They were by Senators Hard, Porter, Johnson, Sedgwick, Bockee and Clark for reversal, and the President of the Senate and Senators Talcott and Lester for affirmance. Senator Talcott and the President put their decisions upon the same grounds as stated by the supreme court. The report of the case states that Senator Lester delivered a written opinion in favor of affirmance, but upon what ground does not appear. It is presumed to have been the same as that of the supreme court, as I cannot conceive of any other.

Senator Hard, in his opinion, discusses the question whether the old rule, which requires a tender to be made on the law-day, in order to discharge the lien, was still

Senator Porter makes no allusion, in his opinion, to the distinction between a tender before and one made after- ‘ the law-day, as to its effect upon the lien of the mortgage, but places his decision upon the grounds that, under the particular circumstances of the case, the plaintiff’s remedy, if he had any, was by a bill to redeem. Johnson, Senator, holds that an unaccepted tender, after the day, does not, per se, in any case discharge the lien of a mortgage. Senators Sedgwick, Bockee and Clark concurred in the views of Senator Johnson.

I admit, that this case, which I believe is the latest one on the subject in this state, does not prove conclusively that the admitted rule of the common law, before repeatedly referred to, is still the law of this state; yet its strong tendency is that way. In view of all our reported cases on the subject, the "most that can be said against it is, that it is, at this day, an open as well as a vexed question. The court of chancery has persistently adhered to it, as it was found to exist at the formation of the government; and the supreme'court has as strenuously insisted upon applying the same rule to the case of a tender after the day, as all agree exists when the tender is made at the day.

My own opinion is, after a careful examination of the cases, that the weight of authority is in favor of the rule as it existed at the common law. If that rule has not been abrogated or modified, all will admit, that it is the plain duty of the courts to follow and enforce it. Clearly, there is no stare decisis in our way. It is of importance,

This evidence, the advocates of the change of the rule claim, is found in the changed character of a mortgage upon land, in consequence of various legislative enactments. We are told, that when the rule of the common law in question was adopted, a mortgage conveyed a conditional estate in the premises, which entitled the mortgagee to possession, and upon which he could maintain ejectment; and that a mortgage does not now pass any estate in the land, but is merety the creation of a specific lien, as security for the payment of a debt or the performance of a duty; and that the statute has taken away the right of the mortgagee to maintain ejectment. All this is true; and, doubtless, other shades of difference may be found between the legal effect of a mortgage at common law and as it now exists; but they will beifound to relate to the remedy, or to consist in collateral or incidental circumstances. Mortgages are substantially what they always were; the fact that they are not now regarded as transferring the freehold, but are merely specific liens, is altogether theoretical and ideal, so far as respects the question under consideration. The great object of these instruments is the same now, as it always was—that of security for the payment of money or the performance of a duty. A mortgagee *in posses-ion is now, as always heretofore, accountable for rents and profits, and he may still defend his possession with the.mortgage, the same as ever. I know of no difference between the right of the mortgagor, or the person owning the equity of redemption, to redeem the premises from the lien of the mortgage, as that right now exists, and as it existed in the time of Coke or Littleton;

The rule contended for by the plaintiff,is reasonable, convenient and just. In the first place, the parties to the mortgage have, by agreement, fixed upon the time of payment, and if the mortgagor fulfils his agreement, by paying on the day appointed, or "tendering payment on that day, the lien is discharged. The parties are then to be read)r, the mortgagor to pay, and the mortgagee to receive ; if the former performs his duty, or tenders performance, and the latter refuses, his lien is gone for ever; he has no excuse for his folly, and is entitled to no consideration for the loss óf his lien. On the law-day, each party is presumed to know exactly what his duty is, and the amount the mortgagor is bound to pay and the mortgagee entitled to receive.

If the mortgagor allows the law-day to pass, without payment or tender, he then is a defaulter. If he can discharge the lien, by a tender of payment the next day, there is no reason why he may not do the same, by a tender, after the lapse of one year or of ten years. Suppose the mortgagee goes into possession under the mortgage, by consent of the mortgagor, immediately upon default of payment, and the latter takes no steps towards payment for years after; what amount shall he tender when he gets ready for payment? what abatement from the principal and interest shall be made from mesne profits? Shall the defaulting mortgagor be permitted to select his own time, and then make a tender of such an amount as he shall deem proper, and the mortgagee be bound to accept it in full, at the peril of losing Ms lien forever ? Suppose, again, the case of a defaulting mortgagor, who claims *to have made partial payments, or to be entitled to a set-off, about which he and the mortgagee, in good faith, differ; according to the rule claimed by the defendant, he must accept in full the amount tendered, at the peril of losing his lien, provided, upon a

It seems to me, that the old rule is the only just and wholesome one that can be recognised. It is quite as favorable to the mortgagor as he can in reason ask. If he makes a sufficient tender, after the day, and before an action is brought to foreclose the mortgage, let him keep the tender good, and, when'he is sued, let him set it up a defence, bring the money into court and offer payment as in other cases, and the court will, in such a case, decree the mortgage satisfied and discharged, and adjudge costs against the plaintiff. Or, if, for any reason, the mortgagor, or the person whose duty or interest it may be to have the lien discharged, does not wish to wait the mortgagee’s time for foreclosing, let him make his tender and keep it good, and then bring his action to redeem, alleging the tender and offering to pay; and, if upon the trial, it is found that his tender was sufficient, and the plaintiff was ready to pay, the court would give him all the relief which equity and justice required. In all these cases, the mortgagee would have the right to have the disputed questions adjudicated, without losing his lien for the amount in equity and justice due to him.

The rule contended for by the defendant would, in many cases, operate as a bounty to negligent and defaulting debtors, and mortgagees would, under its workings, be induced to purchase their peace' at an unjust sacrifice of their rights.

For the foregoing reasons, I am of the opinion, that the rule of Littleton, as expounded by Coke, and as, all now admit, was the rule of the common law in relation to the effect of a tender after the law-day, is still the law of this state; and as the tender in this case has not been l^ept good, and the defendant’s answer contains no offer of payment, and the facts found by the court before whom the cause was tried do not show that the tender has in any sense been kept good, or that the defendant