
    Roswell Hunt and Jonathan Hunt, Adm'rs of Arad Hunt, deceased, vs. Joseph Tyler and William R. Shafter.
    IN CHANCERY.
    
      Windham,
    
    February, 1827.
    One having mortgaged White acre to secure the payment of notes due on a day certain, and also Blade acre, conditioned for the payment of the same notes, or, in caso of failure, for the surrender of 'white acre, without suit or trouble, tho notes not being paid, Held, that the surronder ought to have been mado in a reasonable timo, or when roquestod by the mortgagee. And no request appearing, it was decreed, that tho orator might redeem Black acre, by paying tho costs, and the interest on the notos from the time they became payable, and by a surrender of white acre} but, that in case of failure, both messuages bo holden for tho paymont of the whole debt and costs.
    JOSEPH TYLER being indebted to Arad Hunt, in the sum ef $3328 for borrowed money, on the 25th day of June, 1823, executed to him two notes of hand therefor, payable in one year, with interest payable annually. At the same time, he conveyed to said Arad, by a deed of bargain and sale, a tract of land in Townshend, called the home farm, and took from said Arad a writing, in which the latter agreed to re-convey to him the said home-farm, on the payment of the notes, according to their tenor and effect. The said Joseph also simultaneously executed to the said Arad a deed of another tract of land, in Townshend, called the Holbrook lot, the latter deed to be void, on condition that the said Joseph well and truly pay the said notes, or else, in case of failure, that he should surrender to the said Arad, his heirs, &c. the said home farm, without any suit or trouble.
    The notes not being paid when they fell due, the said Joseph gave notice to the said Arad, that he should surrender, and was ever ready to surrender the home farm. About ten months after the notes fell due, the said Arad being then dead, and the said Joseph having quit the home farm, the orators took possession thereof, and retain the same. Afterwards, the said Joseph, by deed, conveyed the said Holbroók lot to Shafter, the other defendant.
    It did not appear that the said Joseph was ever specially requested to surrender the said home farm, either by the said Arad I or the orators.
    The orators, avering the non-payment of the notes, and that the home farm had not been surrendered according to the condition of the mortgage deed, prayed that the sum due in equity might be ascertained, and that on the non-payment thereof, &c. the equity of redemption in both said parcels of land, be foreclosed, &c.
    The cause was set down for hearing, and was argued upon the bill and answers.
   The following opinion of the court and substance of a decree, was pronounced by

Hutchinson, Chancellor.

This case has been heard upon the bill and answers, a recurrence to which shows the chief point of controversy to be, whether the mortgage deed of the land called the Holbrook land, of course holds that land for the payment of the whole mortgage money, or only for the surrender of the home farm, as it is called. There seems no doubt, but that if the object of the bill were merely to foreclose the equity 0f redemption of the home farm, the orators would be entitled to a decree of foreclosure; for the writing given by Hunt to Tyler, converting his title into a mortgage, has never been delivered up to be cancelled, and Tyler yet retains the right of redemption.

The mortgage by Tyler to Hunt, of the Holbrook land, is made a part of the answer, and the condition is as follows: Provided, nevertheless, that if I the said Joseph, my heirs, executors, administrators or assigns, shall well and truly pay or cause to be paid -to the said Arad Hunt, his heirsj executors, administrators or assigns, two certain notes of hand, this day given by me to said Arad Hunt, one note for $1500, the other for .$1828, and the interest annually; or else, in case of failure, shall surrender to said Arad, his heirs or assigns, my home farm, containing two hundred acres, without any suit or trouble, this day conveyed by me to said Arad, then this deed to be void, otherwise to be and remain in full force and effect.”

There is no time set at which Jie was to surrender; hence, it should have been done in a reasonable time, or when requested by the orator. In fact, the very idea of a surrender of possession by Tyler, implies that Hunt should be there by himself, or agent, to receive possession. The surrender in this case required also the delivering up to be cancelled, the writing which secured his equity of redemption. The conduct of the parties shows that neither of them attached much importance to the exact time of surrender. It does not appear, that ever Tyler was requested to surrender; but it does appear that he gave notice to Hunt in his life time, and was ever ready, &c. to surrender, and that he abandoned the home farm, and in ten months after the notes were payable, the orators took possession, and yet retain the same. Under such circumstances, equity will not warrant the.court in deciding, that the election to surrender is lost, by such a delay as appears. ^

But, according to the authorities cited, a court of equity should^ not extend the time for doing a collateral thing, where the opposite party is not in fault, unless they can decree that which will compensate the opposite party. It is urged, that this cannot be done, because the value cannot be ascertained in the present case. The bill states no fact of damage, no loss of sale, no diminution of value, after the notes were payable, till the orators took possession ; hence, no such damage or loss ought to be inferred. But the orators lost the use and occupation of the farm during that time, and for this they may be compensated, and for this the Holbrook farm should be holden as a pledge.

Therefore, to meet all the difficulties in the case, and do as equal justice as possible, the Court decree, that upon the defendant’s paying to the clerk of this court, for the benefit of the orators, on or before the first Monday of June next, the taxable cost of this suit, and the interest of the sum that was due upon the notes described in the bill at the time the same became payable, that interest to be cast during the ten months before the orators had possession, and the interest on that sum, from the expiration of said ten months till said first Monday of June, and deliver to said clerk, for him to deliver to the orators, to be cancelled, said writing signed by said Hunt, securing to said Tyler the equity of redemption, the Holbrook farm shall thenceforth be holden by Shafter, free from all claim of the orators, and they shall release to him their right to the same.

Jonathan Hunt, solicitor for the orators. Charles Phelps, for the defendants.

If there is a failure of said defendants to perform this, then the whole mortgage money (deducting the interest during the time the orators possess the home farm) and the cost shall be paid on or before the second Monday of February, 1828, or the equity of redemption of both farms be foreclosed.  