The opinion of the court was delivered by
Ross, J.
The orator became interested in the premises as the assignee of a mechanics’ lien which, by due proceeding under the statute, had ripened into a mortgage thereof subsequent to the mortgage held by the defendant. He tendered the defendant the amount which he claimed was due her on her mortgage, and thereupon brought this bill to redeem the premises from the defendant’s mortgage. He claims that there was $20 usury included in the mortgage note held by the defendant, and that his tender is sufficient to pay the defendant’s mortgage when this sum is deducted. The answer denies the usury and denies that the tender was sufficient to pay the amount due her on her mortgage debt. In this respect it is responsive to the bill. We do not think the evidence is sufficient to fairly overcome the answer and establish the usury. There is no question made that the mortgagor Bolles realized only $380, on his note for $400 ; but we think, on the evidence, the defendant advanced $400 for the note, and that the $20 was paid by the mortgagor to Shedd, the brother of the defendant, for his trouble in going to Worcester, Mass., and raising the money for him. But, however this may be, the orator cannot avail himself of the usury, if usury it be. The right to recover back usury is personal to the party paying it. Neither his surety, assignee of his equity of redemption, nor a subsequent mortgagee can avail himself of it. This has been too frequently and recently held by this court to admit of debate. Ward v. Whitney, 32 Vt. 89" court="Vt." date_filed="1859-05-15" href="https://app.midpage.ai/document/ward-v-whitney-6576712?utm_source=webapp" opinion_id="6576712">32 Vt. 89 ; Churchill v. Cole, 32 Vt. 93" court="Vt." date_filed="1859-05-15" href="https://app.midpage.ai/document/churchill-v-cole-6576714?utm_source=webapp" opinion_id="6576714">32 Vt. 93; Cady v. Goodnow, 49 Vt. 400" court="Vt." date_filed="1877-02-15" href="https://app.midpage.ai/document/cady-v-goodnow-6580613?utm_source=webapp" opinion_id="6580613">49 Vt. 400; Lamoille County National Bank v. Bingham, 50 Vt. 105" court="Vt." date_filed="1877-08-15" href="https://app.midpage.ai/document/lamoille-county-national-bank-v-bingham-6580695?utm_source=webapp" opinion_id="6580695">50 Vt. 105 ; Reed v. Eastman, 50 Vt. 67" court="Vt." date_filed="1877-08-15" href="https://app.midpage.ai/document/reed-v-eastman-6580682?utm_source=webapp" opinion_id="6580682">50 Vt. 67. In the case last cited, the usury was included in the mortgage notes; and is identical in principle with the case at bar. The orator’s objection that the defendant cannot avail herself of this principle under the pleadings, is not well taken. By his bill he sets forth that there is usury included in her mortgage note which he can avail himself of in redeeming the premises, and that he has tendered to her the full amount to which *622she is entitled. The answer denies that there is any usury included in the mortgage note, and claims that there is a greater sum due than the sum tendered by the orator. The burden is upon the orator, under this state of the pleadings, to show that he has tendered the defendant the full amount incumbent upon him — standing in the relation he does to the property — to tender her fully to redeem her mortgage. Hence, upon both grounds, it is held that the sum tendered by the orator for the redemption of the premises was too small; and the defendant for that reason was under no obligation to receive the money tendered. This holding renders the consideration of the question made by the defendant, that the offer of the money was accompanied with such a condition that if she had taken it it would have operated as an accord and satisfaction of her entire mortgage debt, immaterial. Inasmuch as the defendant was under no duty to receive the money tendered, because insufficient to pay her entire mortgage debt, the loss of the money while being kept as a tender in the safe of Robbins & Marsh, though without the fault or neglect of the orator, cannot be cast Upon the defendant. It is questionable whether a party making a tender sufficient in amount to discharge the debt in payment of which it is made, can by any means cast its loss, if lost without his fault or neglect while being kept as such tender, upon the party to whom the tender is made; and much more questionable whether he can by any means, short of bringing the money into the court where the litigation is pending, so that if the court should find the sum tendered sufficient ’to discharge the debt or obligation, it may render judgment against the other party, and order its officer to.pay the money tendered, to the party whose duty it was to have received the same. The tender does not change the title to the money from the party making it -to the party to whom it is made. The general doctrine is, that where property is lost without the fault or neglect of any one, its loss falls upon the person in whom the title is. The person who has tendered money to another, while keeping it good as a tender, can hardly be said to have the money tendered in his custody as the bailee of the person to whom the tender has been made. By refusing to receive the money, the person to whom it is tendered warns the *623person making the tender that he need not keep the money for him. If he does keep it as a tender, he so keeps it for his own protection in regard to damages and costs in subsequent litigation. The bailor must have some right or title to the thing bailed, in order to create a legal bailment. Although the party making the tender notifies the other party that he shall keep the tender good, so that the other party can receive it at any time thereafter, when he may elect, it still remains not only the property, but at the disposal, of the party offering it in tender. He can, 'with or without notice, withdraw it from being held as such tender. The decision of this case does not, however, require a decision of the question whether, under any circumstance, and, if so, under what circumstance, the party making a tender can so keep it that if it be lost without his fault or neglect while being so held, such loss will fall on the party to whom the tender was made, and who ought to have received it. By what has been said it is not intended to decide that question. The orator having failed to tender a sufficient amount of money to make it the duty of the defendant to receive the same, loses all benefit from the tender ; and the loss of the money while being kept as a tender, though without the orator’s fault or neglect, must fall upon him.
The result is, that the decree of the Court of Chancery, dismissing the supplemental bill with costs to Frances M. Baker, and allowing the orator to redeem her mortgage by payment of the note of $400, interest, and her costs by a certain day to be named, or the orator’s right to redeem to be foreclosed, is affirmed, and the cause remanded.