152 Mass. 20 | Mass. | 1890
The plaintiff, who was a mortgagor of the property replevied, tendered to the defendant, the mortgagee, more than the amount due on the mortgage, but the defendant declined to receive it, and afterwards sold the property under the mortgage, and became the purchaser at the sale.
A mortgage conveys an estate or title defeasible on the performance of a condition subsequent. If the condition is performed according to its terms, the mortgage immediately becomes void, and the mortgagee is divested of his title. Tender of performance has the same effect. Darling v. Chapman, 14 Mass. 101. Edwards v. Farmers’ Loan Co. 21 Wend. 467. Kortright v. Cady, 21 N. Y. 343. Mitchell v. Roberts, 17 Fed. Rep. 776. If the possession of the property is withheld, the mortgagor may immediately bring an action at law to obtain it. This rule applies to mortgages of personal property as well as to mortgages of real estate. But in this Commonwealth a mortgagor’s right of redemption of real estate after condition broken is only equitable.
At common law the title of a mortgagee of personal property upon breach of the condition became absolute. “No process of foreclosure was necessary and there was no right of redemption.” Burtis v. Bradford, 122 Mass. 129. In some of the States a subsequent equitable right of redemption in the mortgagor has been recognized, and in others the courts have been quick to lay hold of any facts from which the doctrine of waiver could be evoked to defeat the absolute right of the mortgagee.
In this Commonwealth, while it is held that a mortgage of chattels differs from a mere pledge, and passes the general
This statute gives the payment or tender of payment of the debt, and all proper charges, at any time before foreclosure, the same effect upon the rights of the parties in the property which it would have had if made when the debt was due. In either case, if the mortgagee refuses the tender, he may afterwards sue for his debt, but he loses his security. He is subject to the same rule that applies to the refusal by a pledgee of payment tendered by a pledgor of goods. In such a case, the pledgee’s security is gone, although the debt remains. Coggs v. Bernard, 2 Ld. Raym.
In those States where a mortgage is treated as a lien, the same principle is applied to a tender of payment of a mortgage debt after condition broken at any time before foreclosure, without a requirement of statute to that effect. Edwards v. Farmers’ Loan Co. 21 Wend. 467. Kortright v. Cady, 21 N. Y. 343. Potts v. Plaisted, 30 Mich. 149. Caruthers v. Humphrey, 12 Mich. 270. Swett v. Horn, 1 N. H. 332. It is also applied to a tender of payment of a debt secured by a mechanic’s lien. Moynahan v. Moore, 9 Mich. 9.
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 Legislature, could not have intended that, after a tender and refusal of payment of a debt secured by a mortgage of personal property, the title should oscillate between the mortgagor and mortgagee, according to their subsequent changes of conduct in reference to the tender. Besides, in the present case, there was no proof or offer of proof that the money was not kept ready for the mortgagee. The opinion in Roberts v. White, 146 Mass. 256, does not refer to the statute which we are considering. The question there was in regard to a tender made by a defendant in an action of replevin after the suit was brought; and the language had reference to such a