
    Thomas Darling versus Jesse Chapman and Another.
    Of the pleadings in a writ of entry upon a mortgage.
    [Where the condition of the mortgage was that the mortgagor should pay $300 in carpenter’s work, and $300 in painting, on demand, the mortgagee giving twenty days’ notice, and the mortgagor pleaded payment of all but $261 15, and readiness to pay in painting and stock the residue, but that the plaintiff had never requested payment; and plaintiff replied a request 11th December, 1812, and defendant rejoined a tender and offer to pay in painting on the 16th of the same December, but that the plaintiff waived the payment, and refused to receive payment, and would_not suffer the defendant to perform the work; on demurrer, held, that both this plea and the rejoinder were insufficient in law. And a second plea of omnia performabit having also bee. pleaded, and the plaintiff having replied non-payment of the $300 in painting and stock, and the defendant having demurred, held, that the replication was sufficient. — Ed.] .
    This was a writ of entry sur disseisin, in which the demandant counts upon a mortgage deed from the tenants to one Stephen Plaice in fee, an assignment of the premises to the demandant, and a disseisin by the tenants. Upon oyer had of the mortgage, the condition was, “ Provided, nevertheless, that if the said Jesse Chapman and Peter Mair, their heirs, &c., pay to the said Stephen Baker, his heirs, &c., the sum of 600 dollars in carpenter’s work, at the rules of work, and 300 dollars in carpenter’s work and stock at the rules, and the sum of 300 dollars in painting and stock, at the rules of work, and interest on the whole from date, on demand, he giving twenty days’ notice, then this * deed, as also three certain notes of hand bearing even date, &c., shall be void.” Dated the 31st of May, 1808.
    The defendants plead, in bar, that, at the commencement of the action, they had paid all the said sums except 261 dollars L5 cents, and that they had always been ready to pay that sum in painting work, whenever thereto requested; but that the demandant had never, before the commencement of this action, requested or demanded of them, or either of them, to pay the same in painting work and stock, according to the true intent and meaning of the said ^ condition.
    The demandant, in his replication, avers a demand on 11th of December, 1812, of the said Mair, to pay the said sum in painting work and stock.
    The tenants, in their rejoinder, allege that, on the 16th of the same December, the said Mair, for himself and the said Chapman, was ready, &c., and offered, &c., but that the demandant waived the said request, and refused to receive the said sum, or any part thereof, in painting and stock, or to suffer them, or either of them, to perform the said work and find the said stock.
    To this rejoinder the demandant demurs generally, and the tenants join in demurrer.
    In a second plea in bar, the tenants plead omnia performaverunt. The plaintiff replies, that they have never paid the said sum of 300 dollars in painting work and stock, as mentioned in the said condition. To this replication the tenants demur, and for causes of demurrer, suggest that no demand is therein alleged to have been made, nor is it alleged that the demandant gave twenty days’ notice, &.c. The demandant joins in demurrer.
    No argument was had, and the opinion of the Court was delivered by
   Wilde, J.

This is an action brought by the assignee of the mortgagee against the mortgagor ; and the first question to be determined is, whether the rejoinder of the tenants, in the first set of pleadings, be well pleaded. [Here the judge recited the pleadings.] And whether * this rejoinder be a departure from the bar or not, depends on the construction to be given to the rejoinder, as to the waiving of the demand.

If we are to understand that this is alleged to have been by the mutual consent of the parties, then the rejoinder is free from objection. For if the matter in the rejoinder fortifies the bar, it is no departure. As in trespass for taking a horse, if the defendant justify for a distress damage feasant, the plaintiff may reply that the defendant afterwards used the horse, which shows that he was a trespasser ah initia. Now, it must be recollected that the demand or notice required; in this case, was to be a subsisting demand for twenty days ; and if, within the twenty days, it was waived by mutual consent of parties, it may be treated as a nullity.

But if we understand the. rejoinder in the sense probably intended, and which is the most obvious, namely, as an allegation of a tender or offer to pay by the tenants, within twenty days after the notice set forth in the replication, and a refusal by the demand-ant, then the matter in the rejoinder is clearly a departure from the bar. For the bar denies any demand or notice on the part of the demandant, and the rejoinder admits it, making it the basis ot a tender, or quasi tender, by the tenants, and a refusal by the demandant; which denial and admission are manifestly inconsistent, and cannot stand together.

Supposing, however, that the rejoinder is to be understood in the sense first mentioned, and so free from objection; we shall be then brought to the consideration of the plea in bar; and if that be insufficient, the demandant must still prevail; and we have no doubt ' that the plea in bar is bad.

The mortgagee’s estate and right to possession continue until the full and complete performance of the condition, or a tender equivalent thereto. The plea shows only a performance in part, which cannot defeat the demandant’s estate ; and is a bar only to a conditional judgment under the statute, and should have *been so pleaded. Or, if the tenants could prove a tender and refusal, as to the 261 dollars 15 cents, it should have been alleged in the plea in bar, which would have been sufficient to defeat the demandant’s estate. For if Abor-> rows money of B, and afterwards mortgages land to-B, with condition for the payment thereof, and A tenders the money, and B refuses to accept thereof, the land is discharged, although the debt may remain.

But in the case at bar, the plea does not allege performance of the condition, nor a tender and refusal. Nor can this deficiency be supplied by matter in the rejoinder; or if it could, still, in the ■sense in which, in such case, it must be taken, the rejoinder would be bad as a departure, for the reasons before given.

The question, as to the second set of pleadings, depends on the sufficiency of the replication; against which the objection seems to be, that it contains no assignment of a breach of the condition of the mortgage deed, and this would be a valid objection in an action of assumpsit on the notes, or on an agreement in the words of the condition.

But in an action on the deed, the mortgagee is not required to show a breach of the condition, unless his object be to foreclose by means of a conditional judgment. The replication must therefore be held good; and the demandant must have judgment for possession at common law. His title, however, will still remain liable to be defeated by the performance of the condition, or by a tender and refusal; after which the mortgagors will have a right to enter, and to be reinstated in their.former estate. 
      
      
        Chitty on Pleadings, 622. — Com. Dig., Pleader, F. 11.
     
      
      1 Co. lit. 209. —1 Roll. 457, 458, 463, 467. — Powell on Mortgages, 7, 8.
     