Downer v. Bowman

The opinion of the court was delivered by Williams, Ch. J. We do not incline to hear any argument in this case, as it was virtually decided, during the present circuit, in Rutland County, in the case of McDaniels v. Reed et al.* The decision in that case was, that a tender of the amount due on a mortgage, after suit commenced, with all the cost which had accrued, was a bar to the plaintiff’s maintaining the action of ejectment to recover thereon. The principle, on which that case was decided, operates very strongly in the present case. At the commencement of this suit the plaintiff had an unquestionable title, and a right to the possession, — the condition of the mortgage deed to Marshall not being then broken, and the defendants strangers to the title. At the time the court took a recess, the plaintiff had made out a’good case against the defendants ; and by the tender, which the plaintiff made on the 30th of May, in the morning, he cut down any defence, which the defendants could make under the mortgage to Marshall and the assignment from Marshall to Bowman. The expedition of the defendants, in procuring the assignment from Marshall and putting it on record, was of no avail to them, as the plaintiff was equally expeditious in taking the proper measures to lay it out of the case. The evidence of the tender shonld have been, admitted. The judgment of the county court is therefore reversed, Footnotes [*] That case was received by the Reporter too late for insertion in its proper order, and it is reported on « subsequent page of this volume.