43 Minn. 428 | Minn. | 1890
Action of claim and delivery, brought by a mortgagee against a mortgagor, to recover possession of certain domestic animals. Mortgages had been given upon distinct property to secure separate notes. By the verdict of the jury the animals described in one of these mortgages were awarded to plaintiff, while those covered by the other were held to belong to defendant. Under the charge of the court, this conclusion must have been reached by determining that one of the notes was tainted with usury, and hence the mortgage securing it invalid, while the other was not. By this charge there was excluded from the consideration of the jury all testimony in reference to tenders made by the defendant mortgagor after he had defaulted in his payments, and just prior to the commencement of this action. In substance, this testimony was that defendant, in due form, had twice tendered to plaintiff in payment of his notes a sum of money differing in amount each time, and that on each occasion the tender had been rejected; and that he had thereafter retained the money so tendered in his possession, ready for the plaintiff should it be called for, until after the property in dispute had been sold upon a foreclosure of the mortgages. The fact of these tenders, and the amount of each, seems undisputed; the. real difference'between the parties being as to the balance then remaining due and unpaid upon the defendant’s notes. The sole reason given by plaintiff for refusing to accept the money offered by defendant was that it was insufficient.
The question before us — the effect of a tender made subsequent to default in the conditions of a mortgage — has never been presented to this court. In Balme v. Wambaugh, 16 Minn. 106, (116,) it was assumed, expressly for the purposes of a consideration of that case, that a sufficient tender of the debt on the law-day, and a refusal to accept, discharged the lien of a mortgage upon real property, although the ten-. der was not kept good. The subject of tender, in case of a debt secured by chattel mortgage, was also referred to in Coffin v. Reynolds, 21 Minn. 456; Ferguson v. Hogan, 25 Minn. 135; Norton v. Baxter, 41 Minn. 146, (42 N. W. Rep. 865;) Reisan v. Mott, 42 Minn. 49, (43 N. W. Rep. 691.) But the necessity of keeping the tender good by payment of the money into court when the mortgagee, refusing, after condition broken, to accept it, commences a possessory action for the mortgaged property, is now the question to be determined.
At common law, where it was held that a mortgage upon real property was a grant of the land, defeasible only on the condition subsequent of paying the money at the exact time specified, (on the “ law-day,” as it was then termed,) it was well settled that a tender and refusal upon the law-day extinguished the lien of the mortgage, although the debt remained. But in case the money was not tendered when due, upon the exact day, the estate vested absolutely in the mortgagee. Even payment and acceptance thereafter did not revest the estate in the mortgagor without a reconveyance from the mortgagee. In case of a tender and refusal after maturity of the debt, the lien was not extinguished, nor the character of the mortgagee’s estate
The character of the real-estate mortgage, and the status of the
It is urged in some of the cases, where a different conclusion has been reached, that the adoption of this rule must work great hardship and injustice to the mortgagee, frequently, causing a loss of the entire debt; but certainly, in this respect, the rule will not be more unjust when invoked as to chattel than when governing a real-property mortgage, or than when it is applied, as it always has been without hesitation, in the case of a pledge. See Norton v. Baxter, supra, and cases cited. As was said in the Kortright Case, it is not perceived how the mortgagee is to be embarrassed by the establishment of this rule. If-the-mortgagor does not tender the full amount due,
Order reversed.