48 Wash. 560 | Wash. | 1908
Lead Opinion
On the 5th day of March, 1904, W. M. Hart mortgaged certain personal property to the Seattle Brewing & Malting Company, to secure the payment of the sum of $1,000, payable in installments of $50 per month. Hart made default in his payments, and the mortgagee proceeded to foreclose its mortgage by notice and sale under Bal. Code, § 5870 et seq. (P. C. § 6536). The date of sale was fixed for January 8, 1907. On the day preceding, Hart transferred the mortgaged property, or at least the greater portion of it, to the plaintiff in this action. On the 8th day of January, and prior to the sale, the full amount of the mortgage debt, with interest and accrued costs, was tendered to the sheriff and mortgagee, but the tender was refused and the property was thereafter sold and bid in by the defendant brewing company. This action was thereupon brought in claim and delivery, against the sheriff and the purchaser, for a return of the property and damages, or for judgment for the value in case a return could not be had. From a judgment in favor of the plaintiff, the defendants have appealed, and the following questions are presented for the consideration of this court: (1) Does a tender of the amount due under a chattel mortgage before sale discharge the mortgage lien; (2) if so, in an action of claim and delivery to recover the mortgaged property, must the tender be kept good; and (3) was a sufficient tender shown in this case.
“At common law a tender of the mortgage debt on the law-day satisfies the condition of the mortgage, and discharges
See, also, Jones, Mortgages (6th ed.), § 891; Kortright v. Cady, 21 N. Y. 343; Moore v. Norman, 43 Minn. 428, 45 N. W. 857, 19 Am. St. 247, 9 L. R. A. 55.
This was the established rule at common law when tender was made on the law-day, and also in case of pledges of personal property where title did not pass until after sale. In the states where both real and chattel mortgages have been converted into mere liens, it has very generally been held that a tender at any time before foreclosure and sale has the same effect as a tender on law-day at common law, and there would seem to be no sound reason why the rule should be otherwise. Bartel v. Lope, 6 Ore. 321; Moynahan v. Moore, 9 Mich. 8; Flanders v. Chamberlain, 24 Mich. 306; Loughborough v. McNevin, 74 Cal. 250, 14 Pac. 369, 15 Pac. 773, 5 Am. St. 435. Nor is it necessary that the tender should be kept good or the money brought into court. Moore v. Norman, Flanders v. Chamberlain aid Mitchell v. Roberts, supra. In Weeks v. Baker, 152 Mass. 20, 24 N. E. 905, the court said:
“We have been referred to no precedent for holding, in accordance with the defendant’s contention, that a plaintiff before bringing his suit should carry into court the money tendered, or that, having brought a suit which he had a right to bring, his right to maintain it will be forfeited unless he makes profert of money at the time of entering his writ. The rights of the parties to an action are ordinarily to be determined as of the time of bringing the suit. This is always so unless something that has afterwards occurred which may properly-be pleaded is shown in defence.”
The judgment of the court below is therefore affirmed.
Hadley, C. J., Crow, and Dunbar, JJ., concur.
Root, J., dissents.
Dissenting Opinion
(dissenting) — I think there was no proper tender made prior to the sale, and therefore dissent.
Fullerton, J., concurs with Mount, J.