Thomas Nelson, App’lt, v. Sarah E. Loder, Resp’t.
(Court of Appeals, Second Division,
Filed March 25, 1892.)
Tender—Mortgage—Interest.
A subsequent lienor’s right to redeem a prior security is derived from the owner of the mortgaged premises, and he is in this respect in no better •position than the owner, and a tender by him, if he wishes to stop interest or compel an assignment of the prior lien, must be as absolute and specific as that which the owner is compelled to make as a ground for affirmative relief or to stop the running of interest.
Appeal from a judgment of the general term of the second judicial department, modifying a judgment entered upon a decision of the special term.
April 3, 1876, Josiah Gr. Clark being indebted to The Manhattan Life Insurance Company in the sum of $18,000, executed and delivered a bond to said corporation, whereby he bound himself to pay said sum with interest one year after date, and he and Esther, his wife, on the same day executed and delivered to said corporation a mortgage on the land described in the complaint (which the mortgagor then owned in fee) to secure the payment of said •sum. The mortgage was duly recorded April 5, 1876. On the 27th of April, 1878, said Josiah Gr. Clark and Esther, his wife, conveyed the premises to Ada E. Briggs subject to the amount then unpaid on the bond and mortgage, and she entered into possession of the land, and ever since has remained in pos•session thereof. September 18, 1878, said mortgagee sold and •assigned the bond and mortgage to Charles F. Brown, who, June •3, 1879, sold and assigned them to Sarah E. Loder. Both assignments were duly recorded prior to September 25, 1880, on which clay Sarah E. Loder began an action to foreclose, the bond and mortgage, making Ada E. Briggs a party defendant. When the foreclosure action was begun there was due and unpaid on the bond and mortgage $3,808.11, with interest from July 1, 1880.
*947On the 18th of October, 1880, said Ada E. Briggs executed and delivered to Thomas Nelson, the plaintiff in this action, a mortgage on said premises to secure the payment of $500, with interest, April 1, 1881, which mortgage was recorded June 12, 1888. On the 18th of October, "J888, Thomas Nelson called on Sarah E„ Loder, exhibited to her his mortgage and tendered to her a sum sufficient to pay the amount 'due on her mortgage, with costs of the foreclosure then accrued, and demanded that she assign her bond and mortgage to him, which she refused to do. The tender was not kept good, but the money was deposited by the plaintiff' in his general account in a bank. October 23, 1880, this action was begun to compel the defendant to accept the amount due on-her bond and mortgage, with the accrued costs of foreclosure, and to assign the securities to the plaintiff and to restrain her from-prosecuting her action to foreclose them. A temporary injunction was issued. The defendant answered that she had judgments which were liens on the premises subsequent to her and prior to the plaintiff’s mortgage, and that she was willing to-accept payment of the amount due on her mortgage and cancel the same, and averred that she had offered so to do before this action was begun. The action was brought to trial December 8, 1888, before a special term, which held that the plaintiff was-entitled to an assignment of the bond and mortgage on the payment by him of the amount due for principal, interest and costs-accrued on the 18th of October, 1888, the date of the tender, for which relief a judgment was entered, with $284.98 costs to the plaintiff.
On appeal to the general term the judgment was modified so-that it provided that the plaintiff, upon the payment of $3,808.11, with interest thereon from July 1, 1880, up to the time of payment, together with the costs which had accrued in the foreclosure action, should be entitled to an assignment of the bond and mortgage. That part of the judgment awarding costs to the plaintiff by the special term was reversed, and no costs were allowed to either party in the- general term. From that judgment the plaintiff appealed to this court.
Thomas Nelson, for app’lt; A. S. Cassedy, for resp’t.
Follett, Ch. J.
Whether the defendant is. entitled to interest on the debt secured by her bond and mortgage to the date when she shall be paid by the plaintiff, or only to October 18, 1880, the date of the tender, is the only question involved in this appeal. In case the whole amount secured by a mortgage is due, the tender of the sum unpaid by the owner of the mortgaged premises extinguishes the lien of the' mortgage, though the -tender is not kept good, but it does not discharge the promise or covenant to-pay the debt for which the debtor remains liable. Kortright v. Cady, 21 N. Y., 343; Werner v. Tuch, 127 id., 217; 38 St. Rep., 136; Mitchell v. Roberts, 17 Fed. Rep., 776, 783; Haynes v. Thom, 28 N. Y., 386, 400; Chitty on Contracts, 12th ed., 787; Jones Mort., § 886. If a debtor wishes to extinguish his liability for subsequently accruing interest or demands some affirmative *948relief he cannot retain the money subject to his own use, but must devote it to the specific purpose of paying the debt and put it within the power of the creditor to receive it at any time. He must keep his tender good. Tuthill v. Morris, 81 N. Y., 94, 100; Harris v Jex, 55 id., 421, 425; Gyles v. Hall, 2 P. Wm., 378; Bishop v. Church, 2 Vesey, Sr., 371; Garforth v. Bardley, 2 id., 678; Stow v. Russell, 36 Ill., 18; Jones Mort., § 892; Thomas Mort., § 399; Goote Mort., 4th ed., 885.
A subsequent lienor’s right to redeem a prior security is derived from the owner of the mortgaged premises, and he is, in this respect, in no better position than the owner, and his tender, if he wishes to stop interest or compel an assignment of the prior lien, must be as absolute and specific as that which the owner is required to make as a ground for affirmative relief or to stop the Tunning of interest.
The judgment should be affirmed, with costs.
All concur.