
    Nelson v. Loder et al.
    
    
      (Supreme Court, General Term, Second Department.
    
    December 10, 1889.)
    Mortgages—Junior Mortgagee—Tender.
    During the pendency of foreclosure proceedings on a first mortgage, and before the adjustment of costs, plaintiff, the second mortgagee, tendered the first mortgagee an amount sufficient to cover her mortgage debt and costs, and accompanied his tender by a demand for an assignment of her mortgage. She offered to cancel her mortgage, but refused to execute an assignment. After the tender, plaintiff mingled the money tendered with his other money, and used it as his own. Held. that, while plaintiff was entitled to an assignment of the first mortgage, the first mortgagee was entitled to interest thereon to the present time; plaintiff’s tender being insufficient to stop the running of interest.
    Appeal from special term, Westchester county.
    Action by Thomas Kelson against Sarah E. Loder and others to restrain defendant Loder from the further prosecution of an action of foreclosure, and to compel an assignment to him of her bond and mortgage. Defendant Loder held a first mortgage on the land, and she commenced foreclosure proceedings September 25,1880, making Ada E. Briggs, the then owner, one of the defendants. While these proceedings were pending, on October 18,1880, Ada E. Briggs gave a mortgage to plaintiff, Nelson, purporting to secure $500 for legal services previously rendered. On the same day, plaintiff tendered to defendant Loder what he alleged was the principal, interest, and costs of the foreclosure she commenced, and demanded an assignment of her mortgage. Defendant Loder refused to take the money, or say definitely what she would do. Her attorney subsequently offered to receive the money and cancel the mortgage, but refused to execute an assignment. There was a judgment in plaintiff’s favor, directing that on the payment by plaintiff of the sum tendered by him October 18, 1880, defendant Loder execute an assignment of her bond and mortgage, and that she or her attorney give a substitution to plaintiff as attorney in person in the action of foreclosure. Defendant Loder appeals, and the principal question is whether plaintiff’s tender stopped the running of interest.
    Argued before Barnard, P. J., and Pratt, J.
    A". 8. & W. A. Cassedy, for appellant. M. V. B. Travis, for respondent.
   Barnard, P. J.

The tender made in this case was not one which was intended to discharge the lien, and leave outstanding the debt secured by the lien security. It is not a case, therefore, which falls within Kortright v. Cady, 21 N. Y. 343, or Tuthill v. Morris, 81 N. Y. 94, or Cass v. Higenbotam, 100 N. Y. 248, 3 N. E. Rep. 189. The facts in this case are that the plaintiff held a second mortgage on said estate, and the tender was made after foreclosure was instituted upon the first mortgage, and while the foreclosure action was proceeding to judgment, and was accompanied by a demand for an assignment of the security. The costs had not been adjusted, but an amount was tendered sufficient to cover the mortgage debt and costs. The plaintiff, after the tender, mingled the money so tendered with his own other money. He deposited it in his bank account, and it was used by him as his own. The question is whether the tender stopped the interest. We think it did not. The plaintiff had the use of his own money after the tender, and legally is chargeable with the interest upon it. He comes into a court of equity to compel the defendant Loder to assign the mortgage which he seeks to hold for all the interest due upon it, while he has received the interest on the tender since it was made. The court of appeals in Tuthill v. Morris, 81 N. Y. 94, held that, when a party affirmatively asked to extinguish a lien by reason of a tender, the tender must be kept good, as between debtor and creditor. When upon payment the debtor is entitled to the possession of his property, a tender need not.be kept good. Cass v. Higenbotam, 100 N. Y. 248, 3 N. E. Rep. 189. In the present case there was, as has been stated, no w.ish to discharge the lien, and no injury has resulted to the plaintiff by reason of the tender. He had his money in use after the tender for his own benefit. The costs of the foreclosure were not adjusted, and are not yet, and a tender without the means of determining the amount due which should destroy a lien “would be in the highest degree unreasonable.” Tuthill v. Morris, supra, The judgment should be modified by giving the relief asked for, but with the interest due to the date of the assignment, without costs of this action, and without costs of this appeal to either party.  