26 Wend. 541 | N.Y. Sup. Ct. | 1841
Having examined the principal questions in this case, when sitting m another court, and ... • Í- -l -y i t written an opinion which is already m possession ot the members of this court, and the argument here not having thrown any new light upon those questions, I have not considered it necessary to go over the same ground the second time. It now remains for the other members of this court to decide whether the Vice-Chancellor and Mr. Justice Bronson and myself, on the one side, or the two other justices of the supreme court and the assistant vice-chancellor on the other, have taken the correct view of the important legal questions involved in this case.
I shall therefore vote for a reversal of the judgment of the court below, upon two grounds: either of which would be sufficient to render that judgment erroneous: First. That a valid and binding written contract to sell the premises, after they had been bid in by the mortgagees, or for their benefit by the president of the company, which agree
that contract had been made, and part of the purchase money had been received, the lands no longer remained in the hands of the corporation unsold, so as to authorize the mortgagee to redeem; and Secondly. That the tender of the mortgage money after there has been a default of the payment of it at the day, cannot have the legal effect of depriving the mortgagee of his security, if, for any cause, he does not think proper then to receive the amount so tendered. But that, like a tender in other cases, it merely deprives him of the right to interest and costs afterwards, until there has been a subsequent demand of the money and refusal of payment, if it turns out that the amount tendered was all that was rightfully due, and that the mortgagee ought to have received the money when it was so offered to him. A decision which will compel the holder of a mortgage, at his peril, to be able at all times to decide at once what was due thereon, under the penalty of losing his security upon the land if he made a mistake and did not receive the money when it was offered, is not only contrary to the settled rule of the common law, but is inconsistent with the principles of justice and equity. . So it would be equally unjust to deprive a mortgagee of his security, without actual payment of his debt, in case he should by mistake suppose the right of the owner of the equity of redemption had been legally foreclosed, and should for that reason refuse to receive the money when it was tendered to him. On the other hand, no injustice would be done to the owner of the equity of redemption, by holding the mortgage to be still a valid lien upon the land, notwithstanding the tender and refusal of the money; for, if the mortgagee should, without a sufficient cause, refuse to receive his money and discharge the land from the lien of the mortgage, the court of chancery would compel him to pay the costs of a bill to redeem,
The learning of this important case has been so completely exhausted by Judge Cowen, (with all whose conclusions I fully concur,) that any detailed examination of authorities has seemed to me to be superfluous. Indeed, had I not found during the argument that a different view of the case was taken by a distinguished law member of this court, I should have been contented to have voted upon the opinion of the majority of the supreme court, without assigning any farther reasons; nor shall I now attempt anything more than a general outline of the course of thought and reasoning which has led me to support that decision.
The first question, in the order of consideration in which the case presents itself to my mind, is this: Granting the mortgaged land to have been held by the company in such wise that according to the peculiar provisions of its charter the original mortgagor has “ the right of redemption ” of such property, does the unaccepted tender of the debt, after forfeiture, discharge the lien upon the land, so as to cause the legal title to revert to the mortgagor, and thus enable him to maintain his action of ejectment 1
The ancient common law doctrine is undoubtedly stated with precision by the Chancellor, in the case of Merritt v. Lambert, 7 Paige 344, which grew out of the same transaction, and involves the same legal points with the suit now before us. “ The correct principle as intended to be laid down by Littleton and Cok?, 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 in
Thus it seems to me, that irrespectively of any former decision upon this very point we are led by the spirit and analogy of our own somewhat peculiar law of mortgages to the conclusion now maintained by the supreme court: that “the mortgagor’s tender of his debt produced the ' same result after the law-day, as before it, and discharged the incumbrance on the land without discharging the debt.”
If, then, the rule of our supreme court on the effect of tender after the law-day remains undisturbed, that right of the mortgagor in the present case is still further extended by the act of incorporation of the mortgagees, u so long as the lands remain in their hands unsold.” Was the land then remaining in their hands, or had they become purchasers of it, when on a foreclosure sale it had been bought in by the president of the company for their use and benefit and with their funds, but in his own name as grantee of the deed 1 What was the legal effect of such a purchase 1 The president took the conveyance in his own name either with or without the knowledge and consent of the company for whom he acted. In the absence of any evidence to the contrary, the taking the deed in his own name may be presumed to have been done erroneously and without their knowledge. In that case, by 2 R. S. 722, § 53, the provisions of the statute inhibiting any resulting trust in a grant to one person upon consideration paid by another, and vesting the estate absolutely in the grantee named in the deed, does not apply, and Tibbits held in trust for the benefit of the corporation, as his intent actually was. Thus the company, through him, u became purchasers of real estate upon which they had made loans.” On the other hand, if he took the deed with the same intent and with the actual or implied knowledge and consent of the company, what was that but an evasion of the limitation imposed in their charter and in derogation of the rights of the mortgagor 1 If so, it falls within the express provision of 2 R. S. 137, § 1. “ Every conveyance or assignment of any estate or interest in lands or in goods, or things in action, made with the intent to hinder, delay, or
There is a marked distinction, both in the familiar language of business and in that of the courts and statute-book between a contract for a sale of land and an actual sale—between an executory and personal contract, and one acting upon the thing itself—between the perfected contract of sale, and the contract for a sale hereafter. The distinction between lands sold, and lands under contract, is so familiar in common use, that were the strict and technical usage of the words contradictory or uncertain, there would be strong reasons for holding that the more familiar understanding should prevail, in an act expressly directed “ to be construed in all courts benignly and favorably to effect the ends and purposes intended;” and when one of those main ends in the section under examination is clearly the protection and relief of the mortgagor, against hasty and rigorous sales of his property, by extending to him his legal period of redemption. But our statute-book gives us its own use and interpretation of such language in these
It also appears to me that the judge was not correct in refusing the non-suit in the state of the evidence at the time when the motion was made, because the plaintiff had not shewn that the lands were unoccupied; since, accord
On the question being put, shall this judgment he reversed? the members of the court divided as follows:
In the affirmative: The Chancellor, and Senators Dixon, Hopkins, Hunter, H. A. Livingston, Nicholas, Peck, and Platt—8.
In the negative: The President of the Senate, and Senators Denniston, Ely, Furman, Hull, Humphrey, Hunt, Johnson, Scott, Verplanck, and Works—11.
Whereupon the judgment of the supreme court was affirmed.
The opinion alluded to by the Chancellor, maybe seen in 7 Paige. 344, et seq. The Messrs. Merritt filed a bill in chancery against the corporation, to compel a specific performance of the contract of March, 1835, and in the suit thus commenced, the Vice-Chancellor made an order directing ttie appointment of a receiver of the premises in controversy, thus sustaining the bill. See the opinion of the Vice-Chancellor, in 2 Edwards’ Ch. R. 547. From this order an appeal was taken to the Chancellor, upon which occasion the opinion above alluded to, was delivered by him. The cause was subsequently heard on pleadings and proofs before the Assistant Vice-Chancellor of the first district, who dismissed the biU on the ground that a naked agreement to sell cannot be deemed a sale within the scope of the act of incorporation of the company. Mr. Justice Bronson in the supreme court, dissented from the opinion there delivered.