16 Minn. 116 | Minn. | 1870
By the Court
The first question pre
It is the rule of law in this country, settled by the great weight of authority, that, as against the maker of a note or the acceptor of a bill of exchange payable on a day certain at a specified place, the bolder of the note, in order to maintain an action, is not bound to make a demand at the time and place specified. But if the maker was ready to pay at the time and place, be may plead it as be would plead a tender in bar of damages and costs, by bringing the money into court. Wallace vs. McConnell, 13 Pet. 136, and authorities cited.
Mr. Justice Thompson, in delivering the opinion of the supreme court of the United States in the case cited, says: “The place of payment in a promissory note, or in an acceptance of a bill of exchange, is always matter of arrangement between the parties for their mutual accommodation, and may be stipulated in any manner that may best suit their convenience.
‘ ‘And where a bill or note is made payable at a bank, as is generally the ease, it is well known that, according to the usual course of business, the note or bill is lodged at tbe bank for collection, and if tbe maker or acceptor calls to take it up when it falls due, it will be delivered to him and the business is closed. But should be not find bis note or bill at tbe bank, be can deposit bis money to meet tbe note when presented, and should be be afterwards prosecuted, be would be exonerated from all costs and damages upon proving such tender and deposit. Or, should the note or bill be made payable at some place other than a bank, and
The principle, upon which this rule is based, is, that the money to be paid is a debt from the maker; that it is due generally and universally, and will continue due, though there be a neglect on the part of the creditor to attend at the time and place to receive or demand it,- that it isa matter of defence on the part of the defendant to show that he was in attendance to pay, but that the plaintiff was not there to receive it, which defence generally will be in bar of damages only, and not in bar of the debt Bowie vs. Duvall, 1 Gill & Johnson, 175.
We think it follows as a conclusion from this rule that when, as in this case, a note is made payable at a particular bank, the payee, as against the maker, does not, by the terms of the note, bind himself to have the note at the place of payment specified therein, at or after its maturity, for delivery to the maker upon payment or offer of payment by him; nor does he thereby constitute the bank or either of its officers his agent for any other purpose, or to any greater extent, than to receive the amount due upon the note, when unconditionally paid or offered as payment by the maker.
The holder of the note being absent with the note in his actual possession, and the only authority of the bank or its officers being such as was conferred by the terms of the note itself, Balme, the maker, had no right to make his offer or
We may, therefore, for the purposes of this case, without, however, intimating any opinion as to the correctness of either position, assume that, as the law now stands in this state, (1.) a sufficient tender and refusal of the debt will discharge the lien of a mortgage given to secure its payment, although the tender may not be kept good. (2.) That as between the maker and payee of a non-negotiable note, or a note negotiable but not endorsed and remaining in the hands of the payee, the maker may with an offer to the payee to pay the note, couple a demand for the deliveiy thereof; yet, under the rule above stated, the tender in this case was insufficient, and did not discharge the lien of the mortgage.
This conclusion also determines adversely to the appellants the point urged by them that “ the tender stopped all intero st and damages on the note, and therefore the amount stated to be due on the note and mortgage in the notice of foreclosure at the date thereof, March 21st, 1868, to wit, $9620.84, is very greatly overstated, which alone would avoid the foreclosure;” for it is a sufficient answer to this point that, even if the tender had been sufficient, in order to operate as a bar to subsequent damages and costs, it must be kept good, which in this case was not done.
The further point urged by the appellants, that the foreclosure is void because the mortgage had never been recorded in the county of Washington, cannot be sustained. The mortgage was not foreclosed as to any portion of the real estate situated in that county, and under subdim. 3, of see. 2, title 1, eh. 81, Gen. ¡Stat., {page 562,) it is only necessary that the mortgage be recorded in the counties in which the land against which the mortgage is foreclosed is situ-, ated. The proceedings are therefore regular.
The order denying a new trial is affirmed.