Wing v. Davis

The opinion of the Court was read in the following September term, as drawn up by

Mellen C. J.

From die bill and answers it appears that Gay entered for breach of the condition of the mortgage August 15,1825. Before that time the first note described in the deed had become due : and on the 6th of December, 1826, he made an absolute deed to Davis of one moiety of the premises in severalty, and of the other moiety to Plumer in the same manner. Still, as at that time the premises were redeemable by the mortgagor or his assigns, those conveyances could only operate as an assignment of the mortgage, in respect to the owner of the equity, whose rights could not thus be affected. We are therefore of opinion that they are properly joined in the bill. We are also of opinion that if a legal tender of a sufficient sum was made on the 15th of August, 1828, it was within the three years by law limited for redemption : or in other words, that the day on which the entry to foreclose was made, must be excluded in the computation. For the reasons and authorities on which this opinion is founded, we refer to the case of Winslow v. China, 4 Greenl. 298, and the cases there cited. We are also of opinion that where a mortgage has been assigned, and the assignee has entered and holds the title and possession, the tender for the purpose of redemption must be made to him. The language of our statute of 1821, ch. 39, first section, is, “ upon payment or tendering of payment, &c. — to such mortgagee, vendee, or person claiming and *34 holding under them and in possession as aforesaid,” &c. Such is the character and situation of the defendants. We may, therefore, ^ay out of the case all which relates to the tender made to Gay. The remaining questions are to be decided upon the proof introduced by the plaintiff to control and disprove so much of the answers of the defendants as relates to the character, legality and sufficiency of the tender made to them. Was it in due form ? Was it at a seasonable hour of the day ? Was a sufficient sum tendered ? By the evidence it appears that what the plaintiff relies on as a tender, is the fact, that he, late in the evening, stood outside of Davis’s house, in the dark, holding some conversation with Davis, at a chamber window, as to his wish to pay the amount, due on the said mortgage, and urging Davis to accept it, who declined doing any thing about it at that time of night: during which time, Wing held in his hand a bag, containing 475 dollars in specie. Two witnesses testify to these facts; and to the same facts as to the alleged tender to Plumer, with the exception that they did not hear him say he could not count the money for want of a light.

In Wade’s case, 5 Co. 115, it was decided that an offer of money in a bag is a good tender, if it contains sufficient: though in Noy, 74, Suckling v. Cony, it was decided that where the mortgagor said to the mortgagee, “ I am here ready to pay you tire money due on the mortgage,” but at the same time kept the money in a bag, under his arm, it was a good tender. In the case before us, Wing could not place the bag within the reach of either of the defendants, as he was not admitted into the house : but he did all in his power to induce them to receive the money, and they made no objection, except as to the time and circumstances in which the offer was made other objections, perhaps, may bb considered as waived, as to the manner. 3 D. & E. 683. Peake’s cases, 88. 4 Esp. 68. 5 Esp. 48. Perkins v. Dunlap, 5 Greenl. 268. Was the tender made at a seasonable time of the day ? The law upon this subject is found in our ancient books. In Wade’s case before cited, the court lay down the law in these words : “ Although the last time of payment of the money by force of the condition, is a convenient time, in which' the money may be counted before sun-set, yet, if the tender be made to *35 him who ought to receive it, at the place specified in the condition, at any time of the day, and he refuse it, the condition is forever saved, and the mortgagor, or obligor needs not make a tender of it again before the last instant.” See also, Co. Lit. 202. In Hill v. Grange, 1 Plowd. 172, the condition was to pay rent within ten days after certain feasts, in whicii case the Justices unanimously held that the lessee had liberty during the ten days and therefore, they observe — “ the lessee is in no danger as long as he has time to come and pay it; and he has time to come and pay it as long as the tenth day continues ; and the tenth day continues until the night comes $ and when the night is come, then his time is elapsed. So that his time to pay it continues until the separation of day and night. And, in arguing this point, Robert Brook, Chief Justice and Saunders, said that if the rent reserved was a great sum, as £500 or £1000, the lessee ought to be ready to pay it in such convenient time before sunset, in which the money might be counted; for the lessor is not bound to count it in the night, after sun-set, for if so, he might be deceived ; for Brook said qui ambulat in tenebris nescit qua vadit.” The language of the court in the case of Greely v. Thurston, does not advance a different principle. The question is, what is the whole day in relation to a tender in contracts of this character. Wo are not aware that modern decisions have changed the law as established by the old cases ; or the facts necessary to be proved to support a plea of tender; except so far as the conduct of the creditor may in certain cases amount to a waiver of objections against the formality of the tender, or in case of his artful avoidance or evasion. In the case before us there is nothing like a waiver as to the unseasonableness of the hour ; in fact this was the objection made by the defendants at the time of the alleged tender ; which was attempted to be made, not long before midnight, when the defendants and their families were asleep, and all the lights extinguished. No reason has been assigned why a payment or a tender was delayed to so unusual an hour ; and if a loss to the plaintiff is the consequence of this strange delay, he must thank his own imprudence.

We do not mean to decide that a tender may not, in any circum *36 stances be good, though made after the departure of day light: 'it is not-necessary to intimate any opinion on the point. Our decision is founded on the facts of this case : and the tender not having been made in due season, we need not inquire as to the sufficiency of the sum which was-offered.

Bill dismissed, with costs.