
    Greenleaf C. Sanborn vs. Ivory H. Woodman & another.
    A condition in a deed of land subject to a mortgage, that the grantee shall indemnify the grantor from the payment of the principal and interest secured by the mortgage, is broken by a failure to pay interest when due; and the grantor, on paying the interest, may immediately, without a demand on the grantee for reimbursement, enter on the land for breach of the condition ; and a subsequent tender of the principal and interest, accompanied by an offer to indemnify the grantor for any trouble and expense to which he has been subjected, is no bar to a suit to enforce the forfeiture.
    Where a condition in a deed of land, that the grantee shall indemnify the grantor from the payment of the principal and interest secured by a mortgage on the premises, has been broken by a failure to pay the interest when due, and a writ of entry has been brought by the grantor, after entering for breach of the condition, to recover the land, the court will order a stay of proceedings, on payment of the mortgage debt, interest and costs, provided the default was not wilful.
    This was a writ of entry commenced on the 13th of May, 1848, to recover a parcel of land, with the buildings thereon, situate in Grove street, in the city of Boston. The case was tried before Dewey, J., and by him reported for the consi delation of the whole court.
    The demandant, on the 1st of August, 1845, being the owner of the premises in question, made a mortgage of the same to William Minot, jr., to secure the payment of six thousand dollars, in five years, with interest thereon semi-annually; and, afterwards, on the 27th of December following, conveyed the estate, subject to the mortgage, to David Y. Kendall, Joseph Young, and George W. White. The deed to Kendall and others contained the following clause : “ And this deed is on the express condition, that said Kendall, Young, and White, their heirs and assigns, shall indemnify me, my heirs, executors, and administrators, from the payment of said principal sum and the interest thereon.” In the covenant against all incumbrances, the grantee excepted the mortgage, in these terms: “ Except said mortgage made by me to said William Minot, jr., which was given simultaneously with said conveyance to me, and said mortgage, with the interest as above, is to be paid by said Kendall, Young and White, their heirs or assigns.” The condition was again alluded to and excepted in the covenant of warranty, as follows : “ Except as to said mortgage, but against none other, it being expressly agreed and provided that said mortgage shall be paid as is named above.”
    It appeared in evidence, on the part of the demandant, that the interest which became due on the mortgage on' the 18th of February, 1848, for the preceding six months, amounting to $ 180, being unpaid, the same was demanded of the demandant by William Minot, the assignee of the mortgage, and the demandant paid the same on the 18th of March, 1848 ; that on the 22d of March the demandant entered upon the premises, in the presence of a witness, declaring that he made the entry in order to revest the estate by reason of condition broken; that he gave notice of such entry to one of the tenants on the 22d of March, and to the other on the 12th of May, 1848 ; and that he paid the interest which became due on the mortgage on the 1st of August, 1848.
    The tenants filed a specification of their defence, setting forth that the demanded premises became vested in Ivory H. Woodman, one of the tenants, on the 15th of January, 1848 ; that before any entry on the premises or claim by the demand-ant, Woodman tendered him the sum of two hundred dollars, in payment of the interest paid by him on the mortgage, and offered to indemnify the demandant therefrom, and from any trouble and expense to which he might have been subjected; that the demandant refused to receive the said interest and
    
      The tenants brought into court the sum of two hundred and. eight dollars, being the amount of the said sum of two hundred dollars with interest thereon, and offered to bring into court the amount of the demandant’s taxable costs, so soon as the same should be taxed by him; and they thereupon prayed that all farther proceedings should be stayed. The demandant refused to receive the amount so brought into court.
    The tenants thereupon gave evidence of the facts set forth in their specification, the tender being of a single sum of $ 6000, on the 24th of March, 1848, and also of the further fact, that on the 24th or 25th of March, 1848, the said Woodman tendered the sum of $ 200 to the assignee of the mortgage, for the interest which became due on the 1st of February preceding, which the assignee declined to receive, because the interest then due had already been paid by the demandant.
    The case was then taken from the jury, by consent, for the purpose of being reported as above for the consideration of the whole court; who are to decide, whether the demandant, upon the facts in evidence, is entitled to recover; and if so, whether all farther proceedings shall be stayed, and upon what terms.
    
      E. Blake, for the demandant.
    1. The condition to indemnify the demandant against the mortgage was broken by the failure to pay the interest when due. “ Indemnify” here means to prevent the occurrence of a loss, and not to pay the loss when incurred. The party was damnified as soon as he was obliged to pay interest. Gray v. Blanchard, 8 Pick. 284; Jenks v. Ward, 4 Met. 404; Cutler v. Southern, 1 Saund. R. 116; Challoner v. Walker, 1 Burr. 574; Ker v. Mitchell, 2 Chit. R. 487; Collinge v. Heywood, 9 A. & E. 633; Seaver v. Young, 16 Verm. 658; Leber v. Kauffelt, 5 W. & S. 440. And the corresponding language of the covenants is to the same effect. See Doe v. Watt, 8 B. & C. 308; 2 Platt on Leases 327.
    
      2. The principle laid down in Atkins v. Chilson, 11 Met. 112, does not apply here. The only cases, in which proceedings have been stayed, were where a forfeiture was sought to be enforced for non-payment of rent. See 2 Cruise (Gr. Ed.) 31; Doe v. Asby, 10 A. & E. 71; Frost v. Butler, 7 Greenl. 225. Even a court of chancery would have no jurisdiction in this case. 2 Story Eq. J. § 1323; Eaton v. Lyon, 3 Ves. 690; Sanders v. Pope, 12 Ves. 282; Hill v. Barclay, 16 Ves. 402, and 18 Ves. 56; Rolfe v. Harris, 2 Price, 206, n.; Wadman v. Calcraft, 10 Ves. 67; Livingston v. Tompkins, 4 Johns. Ch. 415, 431; Jeremy, Eq. 473; Drewry on Inj. 81; Harries v. Bryant, 4 Russ. 89. But this court has no equity jurisdiction at all in the matter.
    
      B. Rand, for the tenants.
    1. The clause of forfeiture applies only to a failure to Indemnify. This word is ambiguous, both in its popular sense and in law. It means either to save harmless from loss, or, to repay loss. Webst. Dict.; Doe v. Asby, 10 A. & E. 71; 5 Went. Pl. 528; Duffield v. Scott, 3 T. R. 374. In a case of forfeiture the latter sense is to be taken. The court will always lean against forfeitures. The clause was inserted for security; the tenants otherwise might not know to whom the mortgage had been assigned. If the demandant’s doctrine and construction be correct, the estate would be forfeited the day after the interest fell due. It does not appear that the defendants knew, until after the entry, that Minot had an assignment of the mortgage. Bac. Ab. Condition, Q. 3; Duffield v. Scott, 3 T. R. 374. The demandant should have given notice to the tenant But however this may be, the true meaning of the condition is only that the tenants should reimburse the demandant.
    2. But if there was a forfeiture, the court have power to relieve against it by staying proceedings on proper terms. Atkins v. Chilson, 11 Met. 112, and authorities there cited. There is no distinction between the payment of rent, and the payment of interest on a mortgage. The cases cited on the other side may be distinguished. In Doe v. Asby, where a forfeiture was claimed for not repairing, the damages were unliquidated. In Foot v. Butler, there were various breaches, and not all of them of covenants for the payment of money. The equity cases cited are not applicable. The general principle is, that equity will relieve against a forfeiture, for nonpayment of a stipulated sum, or where the amount of damages is a matter of mere calculation; except in cases of wilful neglect, which this was not.
    
      Blake, in reply.
    There was wilful neglect here. The report must be understood as stating that the tenants called on Minot before the entry. But the demandant was not bound to give notice.
   Wilde, J.

This is a writ of entry in which the demandant claims title to the demanded premises, by virtue of an entry made thereon, for an alleged breach of a condition in a deed from the demandant to David G. Kendall and others, under whom the tenants claim; by which the estate of the grantees was forfeited. The defence is, that there has been no breach of the condition; and the tenants have also filed a motion to have the proceedings stayed, on reimbursing the demandant all payments made by him, which, according to the condition in the deed, should have been made by the grantees, Kendall and others, with interest and costs of suit.

By the facts reported, we are of opinion, that the condition in the deed had been broken, and that by the demandant’s entry on the premises the title became revested in him. By the condition in the deed, the grantees were bound to indernnify the demandant from the payment of the principal and interest of a certain mortgage; and it was proved and not denied, that on demand of the assignee of the mortgage, the demandant paid him the sum of $ 180 for interest due on the mortgage, and thereupon entered on the premises for condition broken. It was argued, that the condition was not broken, because one Woodman, in whom the title of the grantees Kendall and others was vested, tendered to the demandant the sum of two hundred dollars in payment of the interest paid by the demandant, and offered to indemnify the demandant for any trouble and expense to which he might have been subjected.

Whether, if this tender and offer had been made previous to the demandant’s entry for condition broken, it would be a legal defence, is a question which it is not necessary to consider ; for by the report of the evidence it appears, that the tender was'not made until after the entry. When the demandant entered, he had been damnified, and not indemnified ; nor had any offer to indemnify him been made. His entry therefore was lawful and revested the estate in him, which could not by any principle of law be divested by the subsequent tender. The demandant was not bound to give notice to the assignee of Kendall and others, or to demand repayment of the interest. Duffield v. Scott, 3 T. R. 374; Cutler v. Southern, 1 Saund. 116.

But although the defence cannot be sustained, we are of opinion, that the motion for a stay of proceedings ought to be allowed. The case cannot be distinguished from the case of Atkins v. Chilson, 11 Met. 112; which was a Writ of entry to recover an estate forfeited by the non-payment of rent; and the court held, that they had authority by the common law, to stay proceedings in that case; and in all cases, the court held, where the penalty or forfeiture is designed to secure the payment of a sum of money, a court of equity will grant relief, on the payment of the money secured, with interest, as well as in cases of penalties and forfeitures for the non-payment of rent, and other similar cases. And the authorities cited in that case abundantly show, that in many cases, and for a long period of time, the courts of common law in England have exercised, such a power, by granting relief in support of equitable defences, for the easier, speedier, and better advancement of justice, without turning the party over to a court of equity. And there is clearly no distinction in principle, or in vhe authorities, between a forfeiture for the non-payment of rent, and the forfeiture in the present case for the non-payment of interest.

But it has been argued that the defendants are not entitled to equitable relief, because they wilfully neglected to pay the interest when it became due and payable. But there is no proof, that they had any knowledge of the time when the interest became due ; and they might expect that it would be called for when due ; and there is strong presumptive evidence, that they did not ■ intend to forfeit the estate, for the day but one after Woodman, who was bound to pay the interest, had notice that it had been paid by the demandant, he tendered to him $6200, the supposed amount due on the mortgage; and tendered the interest also to the assignee of the mortgage. There is therefore no reason to believe, that the defendants knowingly and wilfully neglected to pay the interest.

And upon the whole evidence reported, we are of opinion, that the tenants are entitled to relief by the stay of proceedings, on reimbursing the demandant all payments of interest on the mortgage made by him to the present time, with interest and damages, if any have been sustained by him, with the costs of suit. Proceedings stayed.  