
    WILLIAMS and WIFE vs. TROY.
    [BILL IN EQUITY BY MORTGAGOR TO ENJOIN SALE UNDER MORTGAGE.]
    1. Offer to do equity. — A mortgagor, who seeks to enjoin a sale of the property tinder the mortgage, on the ground that the mortgagee is proceeding to sell, contrary to law, withouthaving the actual possession; while he admits the validity of the mortgage, and shows hy his hill that the mortgage debt is past dtte, and that he retains the possession of the property, — must offer to do equity, either by tendering the amount due on the- debt, or by offering to deliver possession.
    
      Appeal from tbe Chancery Court of Dallas.
    Heard before tbe Hon. James B. Clabe.
    The bill in tbis case was filed, on tbe 21st June, 1861, by Joba D. F. Williams and Emily, his wife, against D. S. Troy; and sought to enjoin tbe defendant from selling certain town lots in Cababa, under a mortgage executed to him by tbe complainants. Tbe complainants purchased tbe lots from tbe defendant in February, 1857, at tbe price of $4,500, for which they gave their promissory note, payable on tbe 1st March, 1861; and, to secure tbe payment of tbe note, executed a mortgage on tbe lots, containing a power of sale if default was made in tbe payment of tbe note at maturity. Tbe bill alleged, that tbe lots constituted a part of Mrs. Williams’ separate estate; that tbe complainants were in tbe quiet and lawful possession of them, and were entitled to retain tbe possession, until dispossessed by suit, under tbe provisions of tbe act approved February 8,1861, commonly called tbe “ stay-law;” that tbe defendant, denying that tbe “ stay-law ” ‘ was applicable to mortgages executed prior to its passage, bad advertised tbe lots for sale, on tbe 24th June, 1861, under tbe power of sale contained in tbe mortgage; that tbe complainants bad not been able to obtain tbe money to pay tbe note, in consequence of tbe condition of Mrs. Williams’ property, and other circumstances; and that if tbe lots were sold under tbe mortgage, they would not bring one-third of their value, in consequence of tbe doubts entertained as to tbe constitutionabty of tbe “stay-law” in its application to mortgages executed prior to its passage, and tbe existence of tbe war in which tbe country was then involved.
    Tbe chancellor sustained a demurrer to tbe bill, for want of equity; and bis decree is now assigned as error.
    Eyed & Mobgan, for appellants.
    Goldthwaite, Bice k Semple, contra..,
    
   R. W. WALKER, J.

It is not necessary, in tbis case, that we should decide tbe question raised by counsel as to tbe constitutionabty, so far as it relates to antecedent mortgages, of the 8d section of the act of Feb. 8th, 1861, commonly known as the “stay-law.” — Acts of Called Session, 1861, p. 4. For, however that question may be decided, the chancellor’s decree dismissing the bill must be affirmed. If the provision of the 3d section of the act referred to, making it unlawful for the mortgagee to sell the property without having actual possession thereof, be unconstitutional, so far as it applies to mortgages such as this, executed prior to the passage of the act, and the power of sale contained in the mortgage itself does-not require that the mortgagee shall have actual possession before making sale, there is obviously no ground for an injunction. If, on the other hand, the mortgagee was bound, either by a valid law, -or by the mortgage itself, to have actual possession of the property before selling it, still there was no error in dismissing the bill, The bill shows that the mortgage debt is due, and that the complainants are in possession of the mortgaged property; but there is no tender of the sum due, nor is there any offer to deliver to the mortgagee the possession of the property. On the contrary, the complainants allege their inability to pay the debt, and avow their intention to remain in possession of the property covered by the mortgage, “as long as the laws of the land will allow them- to do so.” He who seeks equity, must do equity; and the mortgage debt being due, and the mortgagors being in possession of the property, it was at least incumbent on them (supposing that the mortgagee could not legally sell without first obtaining possession) to offer to deliver the possession, if not to make a tender of the amount due. — 1 Story’s Eq. § 64 e; Cunningham v. Davis, 7 Ired. Eq. 5; Hooper v. Bailey, 28 Miss. 328 ; Gliddon v. Andrews, 14 Ala. 733 ; Williams v. Ross, 33 Ala. 509. Instead, however, of offering to do equity, the complainants announce their purpose to withhold from the defendant that to which he is justly entitled, as long as the la,ws of the land will enable them to do so.

Decree affirmed.  