6 Wend. 22 | Court for the Trial of Impeachments and Correction of Errors | 1830
The bill in this case was filed for the redemption of forty shares of stock, pledged or transferred to the respondent, as security for the payment of a loan of $500. In the answer the respondent admits that he holds the stock as a pledge, but denies that it is for the loan of the $500 alone; he says it was pledged for the repayment of that sum and about $800 more, being the amount of several loans antecedent to that charged in the bill. The pledge was effected through the agency of Daniel 8. Gris-wold, and a question is now raised as to his power to pledge for any other loan than that for $500, which was made for the benefit of the appellant; the other loans for which the respondent pretends to hold the stock were made on Gris-wold’s individual account. The agency of Griswold is stated in the bill, and the respondent is charged with knowing it; but the respondent in hig answer positively denies such knowledge, and affirms that Griswold did not inform him that the stock belonged to the appellant, or that the loan was on her account; he made the loan, he says, to Griswold individually, and took the stock as his property, without any knowledge or belief that it belonged to the appellant.
It was asserted on the argument, that the question as to Griswold’s power to pledge the stock for any sum beyond $500, was not agitated in the court below; if so, it ought not to be raiseCl here. That matter does not seem to' have been in litigation there; nothing is said about it in the chancellq.'8s opinion, nor does the proof in the case bear upon the.,-question. The testimony, however, shows that Griswold was an agent of the most general character; he had the entire charge of the appellant’s pecuniary concerns, and managed them without any very special direction from her. He was also the secretary of the Williamsburgh Ferry Company, and brought the certificate of the stock to the respondent with his name therein inserted. His right to transfer is not questioned, and, if it was given with restrictions, that should have been clearly shown before it could be set up to the prejudice of the respondent. By giving Griswold
Assuming that the answer in relation to the sums of money for which the stock was pledged is responsive to the bill, or so much so, as to make it evidence for the respondent (and whether it is or not, I shall presently examine) is it disproved 1 All there is to disprove it, is the testimony of Griswold, which of itself cannot outweigh the answer. There is nothing in the other testimony or in the circumstances to add to its strength on this point; on the contrary, I think they are rather corroborative of the answer. When the $500 were paid, acknowledgments were given by Griswold in his own name. This he admits was contrary to his usual mode of doing the appellant’s business ; his practice was to add the word agent to his name when he signed writings as her agent, and the reason for not doing so in this instance is not very satisfactory. Though this fact does not bear upon the precise point as to the extent of the pledge, yet it well ac
It is said, on the part of the appellant, that the answer, by setting up a claim to retain for a sum beyond the $500 specified in the bill, introduces new matter, not responsive to the bill, and in avoidance of its equity. The rule on this subject, as I understand it, is, that when an answer admits a distinct fact which goes to charge the defendant, and alleges another not responsive to the bill, by way of discharge or avoidance of that admitted, the latter is not established by the answer. If a guardian or trustee is called on to account,
We are next to inquire if there was a sufficient tender of this sum before the bill was filed. The facts relied on to make out the tender are those which took place when Dun-ham and Tracy were present. There was then an offer to pay the amount for which the stock was pledged by Mr. Tracy’s check. He took from iiis pocket a blank check, and was about to fill it up for the proper sum when the respondent asserted "a claim for the full value of the stock, which was considered to be worth at that time about $2000. If the respondent had not insisted upon what it is not now pretended he had a right to, the stock would probably have been then redeemed ; but enough was not done, it is thought to constitute a legal tender. I have looked at the cases referred to on the argument on the subject of a tender, and I find not one among them that goes quite so far as we should be obliged to go in pronouncing what occurred upon this occasion a sufficient tender. There is a nisi prius case in 2 Carr, and Payne, 77, where it was held that an offer by a third person to go up stairs and get the sum which the defendant said he was willing to give the plaintiff, and the plaintiff replying that it was unnecessary to do so, for he would not take it, was sufficient proof to sustain a plea of tender for that sum. There has been, and I think very properly, some relaxation of the rigid rules in relation to making a tender; but if the effect of this relaxation is to render it a matter of uncertainty what shall constitute a tender, nothing will have been gain
There was a question on the argument as to what should have been the decree, admitting that it must be against the appellant. Should it have been, as it is, a decree for a foreclosure, if the appellant did not redeem within a specified time, or should the bill have been dismissed ? If the dismissal of a bill to redeem, after a hearing upon the merits, operates as a bar to any future claim to redeem, then a decree of dismissal, where there is a right to redeem, would be erroneous. That such would have been the effect of a dismissal of the appellant’s bill. I think is established by the case of the Bishop of Winchester v. Paine, 11 Ves. 199, Lord Eldon says, that “ If a bill filed by a mortgagor for redemption is dismissed, the money not being paid at the time, that operates as a foreclosure, and is equivalent to a decre'e of foreclosure.” “The equity of redemption,” says Chancellor Kent, “may be foreclosed by the act of the mortgagor himself; for upon a bill to redeem, the plaintiff is required to pay the defendant by a given time, which is usually six months after the liquidation of it; and upon his default, the bill to dismissed for non-payment, which is a bar to a new bill, and is equivalent to a decree of absolute foreclosure.” 4 Kent’s Comm. 179. The appellant had an undoubted right to redeem on paying the $1300,64. A decree, therefore, which should have denied h'er that right in this suit, and would have operated as a bar to her right on another bill or in a suit at law, would have been unjust. I think the decree for a foreclosure, unless the appellant came in and redeemed within the time mentioned therein, was correct.
I regret, however, that (he respondent was allowed costs. His unwarrantable conduct in seeking to retain the stock on a claim for which it was never pledged, prevented undoubtedly a redemption; but as costs are so much in the discretion of the chancellor that an appeal can never or rarely be sustained, on his decision relating to them, it would not be correct perhaps to modify the decree in this respect, if, however, the consideration which in my judgment should have withheld costs from the respondent in the court below, could
This being the unanimous opinion of the court, with the exception of a single member, the decree of the chancellor was thereupon affirmed, but without costs. On the question of costs, the members were divided j 5 being for, and 12 against allowing costs.