The statute (§ 4048) provides that the holder of a satisfied mortgage who neglects to execute a release deed thereof, within thirty days after a written request and a "tender" of the necessary expense, shall pay a penalty to any person aggrieved. In the present case it appeared that the plaintiff presented a proper release deed to the defendant for his signature, and also offered to pay any expense he might incur in its execution; but that the defendant refused to execute the deed until he had received $5, which he claimed the plaintiff owed him in another matter. *Page 706

The Supreme Court in an opinion by Prentice, J., held that under these circumstances the plaintiff was relieved from the actual production and proffer of the money, and stood in the same legal position he would have occupied had a precise and formal "tender" in fact been made. Reporter.