Jackson ex dem. Bowers v. Crafts

Woodworth, J. delivered the opinion of the Court. The mortgage,having; beehfassigñed fa^ Ñoziiérs^ before the commencement of tbe action, the plaintiff cannot succeed, unless he makes offi a subsisting title in one, okboth of the other lessors. It is contended on the part of the plaintiff, that the sale and conveyance of the mortgaged premises to David M'Collum, vested in him tlie legal estate. To support this, it must be shown, that the sale was “ regular, fair, [113] and with good faith,’’ according to the requisitions of the statute; if it was not, the purchaser acquired no title. Reuben MCollum, the assignee of the mortgagee, acted as auctioneer; previous to the sale, he directed his attorney not to receive payment of the money due. The bond and mortgage were, however, left in the attorney’s hands. From the subsequent conduct of MCollum, it may be inferred, that he expected a tender would be made, and being determined to sell, for that cause instructed his attorney not to receive the money. The circumstances which took place at the sale cannot be reconciled with fairness and good faith. The defendant, who had an interest in the premises, was approaching towards the place where the auction was held, and was seen by Reuben M'Collum $ he was requested to wait until he came, but he did not, and immediately struck down the premises to his brother David, (who knew that the money had been tendered) for two hundred dollars, one third less than the amount due. It is manifest this was done to prevent the bidding of Crafts, and to get rid of competition. The proceeding was unfair and fraudulent. The sale must be deemed to have been made to David MCollum, for the benefit of Reuben; the motive for such precipitation is apparent ; the con'emplated speculation might have been defeated had there been a moment’s delay. To sanction such proceedings would be subversive of justice, as well as a clear violation of the statute, under which the sale was made; and consequently, no title was acquired to support the demise from David McCollum. The title of Reuben MCollum remains to be considered. The first question is, whether the tender to Starkweather was a legal and valid tender; and if it was, then, whether such tender and refusal were equivalent to payment, and discharged the land from the lien of the mortgage. It is well settled that a tender to an agent authorised to receive payment, is as good as a tender to the creditor in person. (1 Campb. N. P. Rep. 478.) That Starkweather was employed to conduct the proceedings, as attorney for M'-Collum, is admitted; but it is urged, that before the tender was made, his power was revoked, in consequence of MCollum!s instructions not to receive [114] tbe money, if it was offered, and saying that he would at-. tend to the business himself. This was no general revoca-, tion, nor was it so intended. M'Collum, having determined not to receive the money, was willing to dispense with the services of his attorney in conducting the sale. The instructions must be understood as limited to these objects. A general revocation was evidently not contemplated. The bond and mortgage still remained in the hands of the attorney. Under such circumstances, the right of the attorney to receive the money continued ; M'Collum could not legally prohibit it, -and Starkweather had the same right to receive payment as his principal. The case of Moffat v. Parsons (5 Taunt. Rep. 307.) is analogous. In that case, the plaintiff expecting a tender would be made, instructed his clerk, previously authorised to receive money, that if the money was offered, he should not receive it, stating that he had put the matter into the hands of his attorney. The clerk, on tender made, refused to receive the money, and assigtied the reason; yet this was held to' be a good tender to the principal. Tbe money having been tendered to a person authorised to receive it; the next question is, what is the effect and legal operation of such tender, as it respects the mortgage. The bond is not in question — if payment had been made, then all right and title under the mortgage would cease, beiause “ a mortgage, until foreclosure, is now considered as a personal engagement only, in which the land is merely pledged for the money, and remains in the mortgagor to -every purpose, except that of securing the debt.’’ (Powell on Mortgages, 170.) In the case of Waters v. Stewart (1 Caines' Cas. in Error, 69.) the late Chief Justice Kent observed, “ that the assignment of the debt, or even forgiving it, and that by parol, draws the land after it, as a consequence.” From the nature of the interest the mortgagee has, there is no necessity for a re-conveyance by him to the mortgagor, after the mortgage has been paid; when that is done, the mortgagee has no title remaining in him to convey, and consequently, by our laws, on payment of the money, he is not deemed a trustee holding ihe legal estate for the benefit of the mortgagor. The only remaining question is, whether a tender and refusal [115] are equivalent to payment. A tender by one party of payment of a debt or performing a duty, and a refusal by the other to accept thereof, do, in some cases, amount to a discharge. In Bacon Abr. 457. title Tender, (F.) it is laid down, that “ if A. borrow one hundred pounds of B , and mortgage land to .B., with condition for the payment thereof, in this case, if A. tender the money, and B. refuse to accept thereof, thel and is discharged, but the debt, which existed before the mortgage, remains, and may be recovered in an action.” In Co. Litt. 209. b. sec. 338. the same doctrine is recognised : the reason assigned is, that the money is collateral to the land, and by the tender, the land is discharged; and it shall be accounted the folly of the mortgagee, that he refused payment when a lawful tender was made to him. (Co. Litt. 207. a. sec. 335. 20 Viner, tit. Tender, N. sec. 4.) If this principle be correct, and we consider it as well settled, then the plaintiff has not shown a good title in his lessor, Reuben M‘Collum; and, consequently, judgment must be rendered for the defendant. Judgment for the defendant.