69 Ala. 369 | Ala. | 1881
This is an action by a mortgagor against the assignee of the mortgage for the recovery in specie •of chattels. After the law day of the mortgage had passed, and there was continuous default in the payment of the mortgage debt, the assignee, with a view to foreclosure by the exercise of the power of sale contained in the mortgage, took possession of the chattels, and was proceeding to exercise the power. The mortgagor caused or procured a tender to be made to the assignee of the sum of sixty dollars, which he claimed was sufficient to pay the mortgage debt, and all legal or equitable charges. The tender was refused, and the assignee declined, stating the sum which would satisfy the debt and charges, and refused to deliver possession of the property, insisting upon making sale in pursuance of the power. On the trial the plaintiff produced and filed with the clerk of the court fifty dollars in money, and after some evidence was adduced, added ten dollars to it. There seems to have been no controversy that sixty dollars was the least sum which would redeem the property, while the defendant insisted a larger sum was necessary. The instructions given by the Circuit Court are based on the proposition, that a tender of the mortgage debt, and of legal and equitable charges, after the law day of the mortgage, and the mortgagee or his assignee has taken possession because of default in payment of the mortgage debt, will not divest the legal title and authorize the mortgagor to maintain detinue or the corresponding statutory action for the recovery of chattels. The instructions- refused are based on the converse of this proposition.
That payment of the debt secured by a mortgage of chattels,
.The question involved in the instructions as to the effect of a tender of the mortgage debt, after default, and after the mortgagee or his assignee has rightfully taken possession of the chattels, has not been heretofore directly presented to this court. Speaking of it, the court, in Sims v. Canfield, 2 Ala. 555, said: “ It is very possible, as the law of mortgages is understood at this day, that a tender of the money due, if made before the mortgagee acquires possession, after a default in the condition, may destroy the title of the mortgagee. However this may be, we find no adjudicated case which determines that a title once vested by possession and default, can be divested by a mere tender.” The weight of authority is, perhaps, that a tender of the mortgage money, made after default, and after the
A tender before or after the law day, or before the mortgagee has taken possession, can not operate to extinguish the title of the mortgagee, unless it is kept good. There are authorities which hold that the title of a mortgagee of real estate may be extinguished by a tender of the mortgage debt, after default, and that the extinguishment will operate though the tender is not kept good. These authorities rest upon a theory of mort5ages of real estate, which does not here prevail.— Welsh v. Phillips, 54 Ala. 309. A payment of the mortgage debt after the law day, without a re-conveyance from the mortgagee, or an entry of satisfaction on the registration of the mortgage, as required by the statute, will not in a court of law restore the fee to the mortgagor. — Collins v. Robinson, 33 Ala. 91; Slaughter v. Swift, 67 Ala. 494. A tender operates as a payment of a debt, and can operate as an extinguishment of the title of the mortgagee of chattels, for no other reason than that there was readiness and willingness to pay the debt, or to perform the condition of the mortgage, and that actual payment or performance was prevented by the wrongful refusal of the party to whom ejther was due, to accept it when tendered. The tender having been made, there is a duty resting upon the party making it, to keep the money safely, ready to pay it over whenever the other party may manifest his willingness to accept it. A neglect of the duty, or disabling himself from performing it, is an abandonment of the tender. And when the benefit of the tender is claimed in court, the money must 'be produced and placed in the custody of the court, so that if the tender is adjudged good, the money may be awarded to the party to whom it is then ascertained to belong rightfully. — Smith v. Phillips, 47 Wis. 202.
Upon the evidence of the plaintiff, and what occurred on the trial in the presence” of the court, it is apparent the tender was not kept good. The trial was commenced and fifty dollars was deposited with the clerk, sixty dollars having been tendered before the commencement of suit. Some evidence having been
Affirmed.