5 Lans. 153 | N.Y. Sup. Ct. | 1871
A tender of money does not discharge a debt, but it does relieve the debtor from damages and costs. (Wolcott v. Van Santvoord, 17 J. R., 248, 253; Trovinger v. McBurney, 5 Cow., 253.)
And although the debt is not discharged, a lien given or obtained as security for it is discharged by a tender. (Jackson v. Crafts, 18 J. R., 110; Kortright v. Cady, 21 N. Y., 343 ; Hartley v. Tatham, 1 Robt., 240; Cady v. Kortright, 1 Keyes, 222.)
It was held in Crozer v. Pilling (4 B. & C., 26), that the plaintiff in a case, to whom the amount remaining due on a
But the very point was decided in Mason v. Sudam (2 J. C. R., 172). In that case the chancellor held a sale of defendant’s real estate, after tender of the amount due thereon, was entirely in defendant’s own wrong.
The amount tendered was prima facie sufficient; it was considerably more than the whole debt, interest and sheriff’s fees. If the defendant or the sheriff was entitled to demand anything more, it was his duty to show what it was for and what was its amount. Ho such proof was given, and we must hold the tender sufficient.
The defendant was present when the tender was made. He was then apprised that the right to sell upon the execution was gone, and it was his duty to have instructed the sheriff to stop the sale and release the property. Had he done so, the liability for proceeding with the sale would have been thrown upon the sheriff, and the plaintiff would have been obliged to sue him instead of the defendant.
But instead of attempting to stop the sale and release the property, he remained during the sale and bid upon the property. I cannot doubt his liability under these circumstances.
The judgment must be affirmed.