
    Charles Werner et al., Resp’ts, v. Minna G. Tuch and Morris Tuch, Impleaded, etc., App’lts.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed May 12, 1889)
    Mortgage—Foreclosure op—Tender op part op debt—When lien not extinguished.
    In an action to foreclose a mortgage given by defendants to plaintiffs on three separate parcels of lands in Elmira, R. Y.,* and on a house and lot in Blossburg, Pa., the mortgage contained a condition or agreement for a release of part of the mortgaged premises, if sold by the mortgagors, on payment of a part of the principal sum, in sums apportioned on each lot, the mortgagors to have the privilege of paying off any part of the principal sum during the term, provided they should not be otherwise in default. Several months after the commencement of the action to foreclose, the defendants sold two lots, and tendered to plaintiffs the sums respectively apportioned thereon, with interest and costs. Plaintiff refused to accept, claiming that there was due on account, of principal a certain sum. The tender was not kept good, nor was the money brought into court. Held, that the defendants’ right to a release of a part of the mortgaged premises, on payment of a part of the mortgage debt, did not survive their default to pay the mortgage debt and interest as it became due;, that to have'extinguished the plaintiffs’ lien, it was necessary to have tendered the whole amount.
    Appeal from a judgment entered in Chemung county, June 2, 1888, upon the decision of the special term.
    
      Frederick Collin, for app’lts; A. J. Simpson, for resp’ts,
   Martin, J.

This action was commenced July 6,1887, to foreclose a mortgage given April 9, 1881, by the defendants, Minna Or. and Morris Tuch, to the plaintiffs, to secure the payment of the sum of $5,260 and interest. The premises mortgaged consisted of a house and lot situate in Blossburg, Pa , and certain other premises situate in the city of Elmira, N. Y. That portion of the premises situate in the city of Elmira was treated by the parties as consisting of three separate or distinct lots. The principal sum secured by said mortgage was to be paid on the 1st day of May, 1891, with semi-annual interest at five per cent. The mortgage also contained an interest clause, by which if default should be made in the payment of the interest, and it should remain unpaid for sixty days, the whole principal and interest should, at the option of the plaintiffs, immediately become due and payable. It also contained a condition or agreement for the release of part of the mortgaged premises, if sold by the mortgagors, on payment of a part of said principal sum as follows: The Blossburg house and lot, on payment of $2,500 ; the most easterly of the Elmira lots, on payment of $1,750 ; the most westerly of said lots, on payment of $850 ; and the lot lying between the other two, on payment of $850 ; the mortgagors to have the privilege of paying off any part of the principal sum during the term, provided they should not be otherwise in default.

On June 11, 1881, upon payment to them of $850 of the principal secured by said mortgage, the plaintiffs released to the defendants, Tuch, the most westerly of the lots situate in Elmira. The interest, which became due on said mortgage prior to May 1, 1887, was all paid, but the interest which became due on that day was not paid. At the end of sixty days, the plaintiffs elected to regard the whole amount secured by said bond and mortgage as due, and commenced this action to enforce the collection thereof by a foreclosure and sale of the property described in said mortgage that had not been released and which was situate in the city of Elmira.

Several months after this action was commenced and at issue, and subsequent to the filing of the notice of Us pend-ens herein, the defendants, Tuch, sold these two lots to their daughter, and then tendered to the plaintiffs the sums of $1,750 and $850, and the further sum of $185 for inter est and costs, and demanded that the said plaintiffs should execute two releases, one of each of said lots. The plaintiff refused to accept the amount tendered and execute such releases, and claimed that there was due and unpaid on said mortgage of principal $4,410, besides interest and costs. This tender was not kept good, nor was the money brought into court. There was due and unpaid on said mortgage debt $4,410, besides interest and costs.

The only issue tried was that raised by the defendants’ supplemental answer, in which it was alleged that the defendants Tuch had sold these two lots to their daughter; that they tendered to the plaintiffs the sums of $1,750 and $850, and demanded a release of said lots, which was re • fused, and they asked for a judgment that said premises be released from the lien of said mortgage.

The court at special term held that the alleged tender was insufficient and ineffectual to discharge and extinguish the lien of the plaintiffs' mortgage on the premises; that the defendants Tuch were not entitled to a release of the premises from the lien of such a mortgage; and that the plaintiffs were entitled to a judgment for a foreclosure and sale of said premises.

The correctness of this decision presents the only question raised on this appeal. The appellants challenge its correctness, and insist that their alleged tender to the plaintiffs totally extinguished their lien upon the premises in question, and, hence, the plaintiffs were not entitled to the judgment awarded them, and cite Kortright v. Cady (21 N. Y, 343), and kindred cases to support their claim. The cases cited are to the effect that a tender of the money due upon a mortgage at any time before foreclosure discharges the lien, though made after law-day and not kept good, and though the money is not brought into court.

If, therefore, the facts in this case bring it within the principle of those cases, it must follow that the judgment in this case is wrong and should be reversed.

But we think the case at bar clearly distinguishable from the cases cited and relied upon by the appellants. It will be observed that by the terms of the mortgage the whole amount of the mortgage debt had become due, and that the only premises affected by this action were the premises which the appellants sought to have released from the lien of the mortgage upon an alleged tender of only a part of the amount thus due. We are of the opinion that the appellants’ right to a release of a part of the mortgage debt did not survive their default to pay the mortgage debt and interest as it became due.

The provision giving the mortgagors the right to a release of a part of the mortgaged premises, when read in connection with the other provisions of the bond and mortgage, shows quite clearly that it was the intent of the parties that the mortgagors should have such right only so long as they should not be in default in complying with the provisions of the contract to be kept and performed by them, and hence, we think that the appellants were not in a position to enforce a release of a part of the mortgaged premises, upon the tender of the amount for which such releases were to be given. Pierce v. Kneeland, 16 Wis., 672.

To have extinguished the respondents’ mortgage lien it was necessary to have tendered the whole amount that was due upon said bond and mortgage. Graham v. Linden, 50 N. Y., 547, 550.

The tender, as proved, was coupled with an express demand for a release of the mortgage before the'money would be paid, which rendered the tender insufficient to discharge the respondents’ mortgage. Jewett v. Earle, 21 J. & S., 349; Roosevelt v. Bull’s Head Bank, 45 Barb., 579; Frost v. Yonkers Savings Bank, 70 N. Y., 553; Day v. Strong, 29 Hun, 505; Wheeler v. Wheeler, 18 N. Y. State Rep., 446.

The appellants, by their answer, sought an affirmative judgment, releasing said premises from the lien of said mortgage. This they could not obtain without keeping their tender good. Tuthill v. Morris, 81 N. Y., 94; Breunich v. Weselman, 100 id., 609.

We are of the opinion that the appellants’ alleged tender did not extinguish the respondents’ mortgage lien upon the premises in question, and that the court properly held that the respondents were entitled to a judgment of foreclosure and sale.

Judgment affirmed, with costs.

Hardin, P. J., concurs; Merwtn, J., concurs in result.  