Pennsylvania Co. for Insurance on Lives v. Dovey

The opinion of the court was delivered, by Sharswood, J. — The 4th, 5th, 6th, 7th and 8th alleged errors not being assigned according to rule must be dismissed. Indeed, none of them have been insisted on here, as the principles upon which they rest are involved in the first three assignments. These present only two questions. First. Whether there was any evidence that Hunter had tendered to Dovey prior to September 1865, or had procured to be tendered a mortgage and obligation of the Mammoth Vein Coal Company, pursuant to the terms of his covenant of July 8th 1864, as set forth in the declaration ? Second. Whether Dovey was bound to accept the mortgage and obligation tendered in November 1865 ? Had the obligation and mortgage, executed and acknowledged [267] by the Mammoth Vein Coal Company on April 14th 1865, been complete and perfect instruments, then indeed the principle of Blight v. Schenck, 10 Barr 285, might have required that the question, whether there had been a delivery or tender, should be submitted to the jury. That case recognised the doctrine that where an instrument is formally sealed and delivered, and there is nothing to qualify the delivery but the keeping of the deed in the hands of the executing party, nothing to show that he did not intend it to operate immediately, that it is a valid and effectual deed, and that delivery to the party who is to take by it, or any other person for his use, is not essential. But the instruments executed and acknowledged in this case were imperfect — not such as Dovey was bound to accept — and no presumption of his having accepted them could therefore arise, as in Wilt v. Franklin, 1 Binn. 502. A blank was left for the name of the obligee and mortgagee. It would have been necessary to show an express agreement to accept them in this imperfect state. There was no evidence of this, but, on the contrary, the evidence was that the papers were left in the hands of the counsel of Hunter to be perfected thereafter, when Dovey could obtain the assent of the original lessors, which was necessary to the substitution of some other name than his own. This, however, he failed to procure. It matters not that this was at Dovey’s request, and for his accommodation, and that the company were ready and willing at all times to complete the securities whenever he should demand it. If Hunter wished to bring the matter to a close, he ought to have procured the company to tender the instruments filled up with the name of Dovey, according to the stipulation of his covenant. Readiness and willingness were not enough. “ Where a debt is due on a contract executed,” says Lewis, C. J., “ and the party to whom it is payable is entitled to it without the performance of anything on his part, and the object of the debtor is to discharge himself from an action for it, an actual tender, in the legal sense of the term, is necessary unless dispensed with:” Williams v. Bentley, 3 Casey 294. We may assume that there was an actual tender November 16th 1865, but the memorandum of Mr. McMurtrie, as counsel for Dovey, shows that there was then no acceptance. The only question, therefore, is whether there was any right to refuse ? It appears that on August 1st 1865 the Mammoth Vein Coal Company had executed a mortgage to certain persons in trust to secure bondholders of all their “net revenue and income, and all the coal mined and to be mined from their coal estates in the counties of Schuylkill and Northumberland,” which mortgage in the mean time had been duly recorded. This mortgage was without any question an encumbrance on the leasehold interest included in that of April 1864, tendered in November 1865 to Dovey. A [268] grant of the profits of the land is a grant of the land itself: 1 Inst. 4 b. It has been contended, however, that the execution and delivery of a new mortgage, effectual as a lien, was not required by the terms of the covenant. The words are, “ its obligation secured by a mortgage on the said leasehold estate.” It is said that as Dovey was not required to satisfy the existing mortgage for the same debt held by him, it would still have remained as a security for the new obligation. But the fallacy of this argument is apparent. The mortgage of July 8th 1864 was to secure the obligation of Hunter as principal debtor: the substituted obligation was that of a different party, for whom he was to stand as guarantor. The first obligation would have been at an end by the delivery and acceptance of the second, and it is very plain that the first mortgage, being merely accessary and collateral, would have followed the fate of the principal obligation, and indeed could not by the agreement of the parties by parol have been converted into a mortgage or security for the second, and perhaps even a written and recorded covenant to that effect could not have kept it alive as against intermediate purchasers and mortgagees: Bowers v. Oyster, 3 Penna. Rep. 239; Metz v. Dieffenbach, 3 Barr 233. Judgment affirmed.