On the 18th of October, 1880, said Ada E. Briggs executed and delivered to Thomas Nelson, the plaintiff in this action, a mortgage on said premises to secure the payment of $500, with interest, April 1, 1881, which mortgage was recorded June 12, 1888. On the 18th of October, "J888, Thomas Nelson called on Sarah E„ Loder, exhibited to her his mortgage and tendered to her a sum sufficient to pay the amount 'due on her mortgage, with costs of the foreclosure then accrued, and demanded that she assign her bond and mortgage to him, which she refused to do. The tender was not kept good, but the money was deposited by the plaintiff' in his general account in a bank. October 23, 1880, this action was begun to compel the defendant to accept the amount due on-her bond and mortgage, with the accrued costs of foreclosure, and to assign the securities to the plaintiff and to restrain her from-prosecuting her action to foreclose them. A temporary injunction was issued. The defendant answered that she had judgments which were liens on the premises subsequent to her and prior to the plaintiff’s mortgage, and that she was willing to-accept payment of the amount due on her mortgage and cancel the same, and averred that she had offered so to do before this action was begun. The action was brought to trial December 8, 1888, before a special term, which held that the plaintiff was-entitled to an assignment of the bond and mortgage on the payment by him of the amount due for principal, interest and costs-accrued on the 18th of October, 1888, the date of the tender, for which relief a judgment was entered, with $284.98 costs to the plaintiff.
On appeal to the general term the judgment was modified so-that it provided that the plaintiff, upon the payment of $3,808.11, with interest thereon from July 1, 1880, up to the time of payment, together with the costs which had accrued in the foreclosure action, should be entitled to an assignment of the bond and mortgage. That part of the judgment awarding costs to the plaintiff by the special term was reversed, and no costs were allowed to either party in the- general term. From that judgment the plaintiff appealed to this court.
Thomas Nelson, for app’lt; A. S. Cassedy, for resp’t.
Whether the defendant is. entitled to interest on the debt secured by her bond and mortgage to the date when she shall be paid by the plaintiff, or only to October 18, 1880, the date of the tender, is the only question involved in this appeal. In case the whole amount secured by a mortgage is due, the tender of the sum unpaid by the owner of the mortgaged premises extinguishes the lien of the' mortgage, though the -tender is not kept good, but it does not discharge the promise or covenant to-pay the debt for which the debtor remains liable. Kortright v. Cady, 21 N. Y., 343 ; Werner v. Tuch, 127 id., 217; 38 St. Rep., 136 ; Mitchell v. Roberts, 17 Fed. Rep., 776 , 783; Haynes v. Thom, 28 N. Y., 386 , 400; Chitty on Contracts, 12th ed., 787; Jones Mort., § 886. If a debtor wishes to extinguish his liability for subsequently accruing interest or demands some affirmative