Moore v. Cord

By the Oourt, PAINE, J. If the complaint in this action can be sustained at all, it must be either as a bill to redeem or to prevent a cloud upon the plaintiff’s title. The mortgage was foreclosed for the non-payment of the first instalment; but the plaintiff, who was then the owner of the equity of [216] redemption, was not made a party, tb.on.gb ber title was on .record. The premises being advertised, tbe plaintiff tendered tbe sum then due for principal and interest, which was received, but she tendered no costs. The defendant was proceeding to sell, when she afterwards tendered the amount of principal and interest thereafter to become due on the mortgage, and brought this action to restrain tbe sale, and to redeem by compelling the defendant to receive the amount tendered. It has been held in some cases, that a foreclosure and sale to which the mortgagor is alone made defendant, after he has sold the equity of redemption, were mere nullities. This court, however, has held that such a proceeding may have the effect of transferring to the purchaser the mortgage interest, or in other words, that it may operate as an assignment of the mortgage. Beyond that it could have no effect. Stark et al. vs. Brown, 12 Wis., 572. This being so, it may well be said that the plaintiff, owning the equity of redemption, was not bound to pay the costs of the foreclosure proceeding, at the time of making her first tender. If the mortgagee will resort to a foreclosure proceeding, the only effect of which is to assign his mortgage, for the reason that he proceeds against one having no interest in the premises, he ought not to burden the estate with the cost of that proceeding, even though ordinarily a party redeeming should be obliged to pay the costs of a projDer foreclosure suit, which latter question we have not considered, and do not decide. The question then occurs, Would it be a cloud on the plaintiff’s title if the defendant should proceed and sell the premises in the foreclosure suit ? We think not. Her counsel contended that it would, for the reason that the title being traced to the mortgagor, and he being shown to have been a party to the foreclosure suit, the purchaser at that sale could show a prima facie title, which was said to be sufficient to bring it within the rule as to a cloud upon title. But we do not so understand that rule, nor that a court of equity will interfere to prevent or remove a cloud which can only be shown to be prima facie a good title by leaving the plaintiff’s title entirely out of view, or by suppressing a part of the record. [217] Thus, suppose A sells land to .B, who puts his deed on record ; A then gives O a deed of - the same land; is that a. cloud on B’s title? It would seem clearly not. Yet 0 could show a good title by tracing title to A and then showing his deed from A, provided B’s title is left entirely out. But the moment B’s title is shown, then O’s is not prima facie good against it, and therefore is no cloud. The rule upon this subject assumes always, that the title of the party complaining being shown as it appears of record, then the cloud to be removed is apparently a good title against it, though really defective by reason of something -not appearing on the record. It follows therefore that so soon as the plaintiff’s title was shown, and it appeared of record that she had purchased the equity of redemption before the foreclosure proceeding was commenced, she not being made a party, the sale under it would not be even prima facie good as against her, but it would appear on the face of the record, that it had no effect at all upon her interest, and could operate at most only to transfer the mortgage interest to the purchaser. Her title being once shown, it stands unclouded by this sale. She has therefore no occasion for the interference of a court of equity upon that ground. Nor do we think the complaint can be sustained as a bill to redeem. It appears on the face of it that the mortgage debt was not all due at the time the suit was commenced, though the full amount of principal and interest up to the time when it was to become due, h^d been tendered. The question then is, whether the owner of the equity of redemption can, before a mortgage debt is due, tender the whole amount to become due, and then commence an action to compel the mortgagee to take the money and discharge the mortgage. This is a question somewhat novel in its character, and one upon which authorities are not numerous, owing doubtless to the rarity of the occurrence as a matter of fact. It is seldom, at least in modem times, that the debt- or offers to pay before his debt is due, including interest up to the time when it is to become due; still more seldom, such offer being made, that the creditor refuses it. There are [218] several cases wbicb bave held that a tender before the day of payment fixed by the contract is not good. Tillon vs. Britton, 4 Halstead, 127; Kingman vs. Pierce, 17 Mass., 247; Saunders vs. Frost, 5 Pick., 267. The last two cases seem to rest the decision upon the right of the creditor to keep his money at interest, according to the contract. Bat where the debtor tenders the whole amount of the interest which could accrue up to the time of payment fixed by the contract, as was done in this case, this reason would seem to fail. But can it not be said that the creditor may have an interest in keeping his money invested; upon security, rather than to have it in his own hands ? Can it not be said that he may insist on it even arbitrarily or obstinately and without advantage to himself, so long as the contract provides for ? It would seem so, unless the rule of the civil law is to prevail, which was that the day of payment was fixed for the convenience of the debtor only, that he might not be compelled to pay before that time, leaving him at liberty, however, to do so if he chose. There seems to be only one case which has so held. McHard vs. Whetcroft, 3 Har. & McH., 85. In that no opinion is given by the court, but the counsel who argued that side of the question, claimed that they were governed by the rule of the civil law, and admitted that the common law was different. We do not, however, deem it necessary to decide this question; for assuming, as was claimed by the plaintiff’s counsel, that the tender was good, there still seems to be no ground for a bill to redeem. The entire amount due on the mortgage had been tendered and received. Although there had been a forfeiture on the first instalment, the receipt of the amount due waived it. There was no default on the second instalment and no forfeiture. There was nothing to redeem from. If the tender was good as a payment, the lien of the mortgage was extinguished. Kortright vs. Cady, 21 N. Y., 343. It would then be the same as though the tender had been made on the day the debt became due. In that event, if the mortgagee refused to receive it, there would be no occasion for a bill to redeem. There would be nothing to redeem from. The plaintiff might compel a discharge [219] of tbe mortgage, in tbe mode pointed out by tbe statute, making a demand, tendering tbe feesj &c. R. S., chap. sec. 46. But sbe could not sustain an action to redeem, for tbe reason that there was nothing to redeem from. For these reasons tbe demurrer to tbe complaint should have been sustained. Tbe order overruling it is reversed, with costs, and tbe case remanded for further proceedings.