
    Clarissa Collar v. John Harrison.
    
      Mortgages: Irregular foreclosure: Attorney fee : Tender: Statutory penalty, A mortgagee, after an irregular attempt to foreclose by advertisement, where his notice was imperfect and was withdrawn after a single publication, is not entitled to demand the attorney fee provided for in the mortgage in case of foreclosure; and where he declined a tender of the full amount due because such attorney fee was not paid in addition, and refused to execute a discharge of the mortgage, he was properly held liable to the statutory penalty.
    
      Submitted on briefs July 9.
    
    
      Decided July 21.
    
    Appeal in Chancery from Wayne Circuit.
    
      Moore & Moore, for complainant.
    
      Henry M. Oheever, for defendant.
   Campbell, J.

This is a suit in equity to enforce the discharge of a mortgage, and to obtain the statutory penalty for refusing such discharge for more than seven days after tender. — 2 C. L., § 4246.

The cause was before the court at the January term, on demurrer, and now comes up on proofs.

The tender appears to have been offered immediately after an attempt had been made to foreclose by advertisement, which pas irregular. The money tendered was sufficient to pay the amount due, and the fee of acknowledgment, and a discharge was also presented in readiness for execution. The only dispute seems to have been concerning a fee of twenty-five dollars, which was provided for in case of foreclosure.

There is no reason for holding the mortgagee entitled to that fee. The notice was confessedly imperfect, and had only been published once, and had to be withdrawn. The persistence in attempting to renew this foreclosure, after tender, has subjected defendant to the statutory penalty; and the decree below was correct, and must be affirmed, with costs. We do not think justice requires more than single costs.

The other Justices concurred.  