Ketchum v. Crippen

By the Court, Sawyer, C. J.: One Eastman held a mortgage on land in Mariposa County, and the plaintiffs held two subsequent mortgages on the same land. Eastman brought an action to foreclose his mortgage, making plaintiffs parties to the suit, as holders of the subsequent mortgages, and obtained a judgment and order of sale. Defendant Crippen, as Sheriff of Mariposa County, was proceeding to sell upon process issued on said judgment, when plaintiffs, claiming the right as holders of the subsequent mortgages, tendered to him the full amount of the judgment and costs, and also made a tender to defendant Parrott, who has some interest with Eastman in the judgment, and requested an assigment of the judgment. Both declined to receive the money or make the desired assignment, and they were proceeding to sell when the action was brought. The complaint states the facts, avers the tender, that the parties refused to accept the money, or to assign the judgment; that they have always been ready and still are ready to pay the amount, of the money tendered into Court; that defendants are about to sell the mortgaged property; “that should the sale be made, they would be subjected to great and-needless expense; the interest which they represent, as aforesaid, would be greatly endangered and compromised, and their rights would become entangled and clouded, for which injury they would have no redress, or no adequate redress, at law,” and ask that defendants may be temporarily enjoined from selling; that on the hearing the injunction may be made perpetual; that defendants Parrott and Eastman may be enjoined from transferring the judgment; that plaintiffs may be subrogated to their rights, and that said defendants Parrott and Eastman be required by the judgment to assign their interest in said judgment, and for “ other proper and necessary relief.” Plaintiffs paid into Court the amount tendered, but not enough to cover the interest accrued subsequent to the tendel’. The money so paid in was at some [226]subsequent time taken out by said defendants. The Court found the tender and refusal, but also .found that the money was afterwards, and before payment into Court, used by plaintiffs, and the tender not kept good, and that for this reason the interest was not stopped; that the amount paid into Court was insufficient to pay the amount at that time due, and that plaintiffs were not entitled to any relief. The injunction was, therefore, dissolved, and the complaint dismissed, at plaintiffs’ costs. Plaintiffs appeal.

The plaintiffs now claim that the tender, not only after what was formerly called the law day of the mortgage, but after the lien of the mortgage had become merged in the judgment, yet before an actual sale under the judgment, discharged the lien, and it was unnecessary for the plaintiffs, being holders of the second mortgages, to keep the tender good, or to ever after pay the judgment; that the tender was itself an absolute discharge of the lien. They rely upon the cases of Kortright v. Cady, 21 N. Y. 344; Stoddard v. Hart, 23 N. Y. 560, and cases there cited, which adopt and enforce the logical consequences of the modification of the law of mortgages, making them mere liens for the security of debts, passing no estate in the land till a sale. These consequences are, that a payment after the law day discharges the mortgage, and is followed by the same consequences as a payment made on the law day. If payment after the law day has the same effect as payment on the law day, it would seem that there could be no good reason for not giving the same effect to a tender made after as to one made cm the law day. And so the cases cited hold. The same principle is adopted in Michigan, where a similar doctrine as to the character of mortgages prevails. (Caruthers v. Humphrey, 12 Mich. 277; Van Husen v. Kanouse, 13 Mich. 313. See, also, Hayes v. Josephi, 26 Cal. 545; Mahler v. Newbaur, 32 Cal. 170.) We think the reasoning in Kortright v. Cady unanswerable, but in Perre v. Castro, 14 Cal. 519, (decided before Kortright v. Cady,) on which respondents rely, our predecessors determined the question the other way.