
    Edgerton, Appellant, v. McRea.
    When the bill contained an averment of an offer by the mortgagee, to redeem some time prior to the day limited for payment, and the mortgagor did not refuse to receive the money, because the tender was premature, but denied the right to redeem; and the hill contained a prayer for an account and a redelivery of the mortgaged property ; it was held a sufficient offer to redeem and pay whatever might be due on the mortgage.
    APPEAL from chancery.
    This was an appeal from a decree of the superior court of chancery, which disallowed a demurrer to the bill of the appellee. In the bill the complainant stated that in the year 1838, being much in need of money, he applied to the appellant Edgerton, for a loan of two hundred dollars, which was refused, until complainant agreed to execute to Edgerton a bill of sale for a certain negro slave, named Sam, which was stated to have been worth one thousand dollars, conveying the'absolute title in said slave to said Edgerton, which complainant did, with a verbal understanding, that if complainant paid the sum of money thus loaned by the 25th day of December next following the date of the contract, the said Edgerton would redeliver the slave to complainant. The bill averred, that afterwards and before the day limited by the agreement for payment of the money, the complainant offered to pay the same to Edgerton, and demanded a redelivery of the slave, hut that he absolutely refused to return the slave, and claimed the same as his absolute property, &c. There was a prayer for a decree compelling Edgerton to return the slave, and for an account, and for general relief.
    There was a demurrer filed by Edgerton to the bill, which was disallowed by the chancellor. . .
    W. Y. Gholson, for appellant.
    Courts of equity, proceeding upon the maxim, that “ He who seeks equity, must do equity,” have uniformly decided that a mortgagor praying relief of any kind against a mortgagee, must offer a redemption. McDonough v. Show bridge, 2 Ball & Bea. 555. Drew v. O’Hara, do. 562.
    A bill filed by a mortgagor or his representative, against the mortgagee, praying a sale, may be demurred to, if the bill does not proffer a redemption. 3 Powell on Mortgages, 963, (Coventry & Rand’s edition, 1828.)
    It was remarked by the court, in the case of Drew v. O’Hara, above referred to, “ a mortgagee, nor one claiming title from him, after he had executed the mortgage, could not file any bill against the mortgagee, except to redeem him; and that the first mortgagee, having the estate absolute at law, could not be brought into a court of equity by the mortgagor, or those deriving under him, unless they offered to redeem' him.”
    But it may be said that this is not a bill seeking a redemption, and that therefore a tender of the mortgage money was not necessary to be made in the bill. This position would be untenable. It was said by the court, in the case of Cholmley v. Countess Dowager of Oxford, 2 Atk. 26-7, that “when a mortgagee is made a party to a bill praying relief by the mortgagor, it is the same thing as praying to redeem, for a redemption is the proper relief.” See also same point, 3 Powell on Mort. 967.
    “ It is certainly an essential part of a bill, to redeem a mortgage, that it offer in express terms to pay the amount due, with costs. The bill usually states a prior tender of the money, and a refusal to accept it.” Beekman v. Frost, 18 Johns. Rep. 560, per Spencer, Chief Justice.
    In this case it will be observed that the offer to pay the money and the demand of the negro back, were made before the time had expired for which the money was loaned. The bill states the loan to have been made sometime in the year 1838, but at what time of the year is not stated. No interest it appears was required on the two hundred dollars. The expectation probably was, that the time of the negro would be equivalent to the interest, contracts of that kind being frequently made.
    If such were the contract, McRea had no right to demand a return of the negro until the time had elapsed, and his offer to pay the money being accompanied by a demand of the negro, would in no sense be considered a legal tender of the money.
    The bill does not charge that the contract was usurious, or intended to evade the statute against usury; but even if it had, it would not better the cause ; for in that case, as in the case of a mortgage, there must be an offer to return the money borrowed.
    The only possible excuse in this case for not making an offer to repay the money, is the tender stated in the bill to have been made previous to the 25th of December, 1838; and whether it be decided according to the authority cited in 18 John. 560, or according to the contract between the parties, and the justice of the case, it seems clear that the tender made would not dispense with an offer in the bill to pay back the money borrowed.
    0. D. Davison, on the same side.
    Cocke for the appellee.
    The facts stated in this case are not such as any of the authorities cited by the appellant’s counsel apply to. This bill states that the complainant was to have returned the mortgage money by the 25th of December, 1838. The bill states that previous to the time-when said amount of money was to have been returned, he offered to pay the same to Edgerton, and requested him to return the slave, but Edgerton refused.
    The legal effect of this right to return the money before the 25th of December, 183S, is like unto an undertaking to pay money on or before a given day. In such a case it would be altogether useless to show by authority, that a tender before the day would be sufficient. Besides this is also a bill for discovery as well as for relief.
    From a consideration of the matters charged in the bill, it is highly doubtful whether the defendant is now entitled to any money from the mortagor. The hire of the negro since December, 1838, would perhaps be equal to the two hundred dollars; whether this be so or not, can be only ascertained on the report oí the master after taking the account. The prayer of the bill is ample for this. The bill does not seek any thing farther than that an account be taken whether any, and what amount, is. due to Edgerton: if any thing shall be due to him after estimating a reasonable hire for the negro, we know we will have to pay that amount as a condition precedent to the right to redeem.
   Mr. Justice Teottbh

delivered the opinion of the court.

The only ground urged in support of the demurrer, is that the bill does not contain an offer to redeem, which it is said is necessary in all bills to redeem mortgaged property. This proposition is undoubtedly correct, and the doctrine laid down by the court in the case of Beekman v. Frost, 18 J. R. 560, that it is certainly an essential part of a bill to redeem a mortgage, that it offer in express terms to pay the amount due, with costs, &c. is readily assented to. The controversy must, therefore, be determined by the answer, which is furnished by the bill itself, to the enquiry, whether there is upon its face an offer to redeem, not in so many words, but by terms which mean the same thing. There is an averment that the complainant tendered the money due on the loan, some time prior to the day limited for payment. The defendant refused to receive it, not because the tender was premature, or not authorized by the terms of the agreement, but upon the exjjirgss^d groupd that complainant had no right to redeem. This feature cause, renders it unnecessary for the court to decide upon the right of complainant to make payment before the day fixed upon" in fhe contract. But it may be considered that as a plea of tender is had, without a continuing offer to pay, and an averment'of present readiness to do so, this averment in the bill for the same reasons is not sufficient to bring the case within the rule before laid down, and that it is not, therefore, an offer to redeem the mortgage.

This might be a fatal objection, if this averment stood alone and unaided by other and subsequent parts of the bill. After praying a discovery, the bill asks a decree for the redelivery of the slave, and an account of hire from the time of the tender. This is certainly a prayer for an account; for although it may be considered to be quite inartificially expressed, yet its evident sense and legal import is such. And this has been held equivalent to an offer to redeem or tp pay whatever may be found due. Fonb. Eq. 439.

The case in 2 Atkyns, 267, which is referred to in support of the demurrer, is most clearly a direct authority to support the bill. It is there held that in a bill where the mortgagee is a party, praying relief is the same thing as praying to redeem, for redemption is the proper relief; and if upon a reference to a master, to see what is due for principal, interest, and costs, they do not 'redeem the mortgage, the court will dismiss the application.

We are clearly satisfied that the decision of the chancellor was correct, and it must therefore be affirmed.' Decree affirmed.  