
    Joseph Tirrell versus John Merrill.
    A mortgagor cannot maintain a bill in equity to redeem, without averring anil proving a tender of the sum actually due, which he must ascertain at his peril unless in fact it should appear that the rents and profits amounted to the sum due by the mortgage.
    This was a bill in equity, brought to redeem a certain tenement heretofore mortgaged by one Peter Guss to J. T. Austin, conditioned to pay 350 dollars in one year, and 350 dollars in two years from 25th of July, 1806, the date of the mortgage. After the death of Guss, the plaintiff became seised of the equity of redemption by purchase from the administrator, on the 30th of January, 1818.
    One Gabriel Wilson took an assignment of the mortgage in December, 1810, and in May, 1815, recovered judgment for possession, unless the mortgagor should pay 177 dollars, 68 cents. In November of the same year, he assigned all his interest to the respondent Merrill.
    
    The plaintiff alleges that Wilson and Merrill have personally occupied the premises since July, 1815, and that the rents and profits thereof have amounted to more than sufficient to pay and satisfy the sum due on the mortgage; and that on the 9th March, 1818, he demanded possession of the respondent, and required of him to execute a release of the premises to the plaintiff, which the respondent refused; and although the plaintiff was then and there ready, and offered to pay any sum, which might have been due, after deducting the rents and profits, yet the respondent refused to render any account thereof, although alike requested. .
    And the plaintiff further charges that, ever since the said 9th of March, he has been ready and willing to pay the respondent whatever sum may be due him by reason of the premises, after deducting the rents and profits he may have received, or which he [ * 118 ] might have made * without his wilful default; and he offers to bring into court such sum as shall justly appear due to the respondent upon a fair account, in order that the same may be paid over to him, and that the plaintiff may be let in to redeem the premises. And because he cannot have any relief or discovery without the aid of the Court, he prays that the said Merrill may be required to answer to the matters aforesaid, and to state a true account of all the sums received by Wilson or himself, or by any other persons for their use respectively, or which, without their wilful default, they might respectively have received; and tho* upon bringing into Court whatever sum of money may be found due on a just computation, which he is ready and offers to bring into Court, he may be let in to a redemption of the premises, &c.
    In the Court below, an auditor was appointed, by consent of the parties, to take an account of the rents and profits of the mortgaged premises, over and above the necessary repairs expended thereon, who reported that he found a balance of 78 dollars, 18 cents, by which the rents and profits exceeded the necessary repairs; and the plaintiff, by leave of the Court below, brought in and deposited a sum of money, which, with the above balance, made up the amount appearing to be due by the mortgage. The auditor further stated that from the peculiar situation of the premises, and the great diffi culty and uncertainty attending the collection of the rents, and from the confusion in the testimony before him, he had omitted to charge the respondent with divers sums which the plaintiff claimed to be allowed him.
    The respondent, in his answer to the plaintiff’s bill, says that neither Wilson nor himself ever occupied the premises, except a very small part thereof occupied for a certain short time by Wilson; that the rents and profits actually received by them do not amount to a sufficient sum of money to pay and satisfy the judgment aforesaid, with the interest thereof, and the necessary repairs [ * 119 ] and * improvements made by the respondent upon the mortgaged premises; that neither the plaintiff nor any person for him, or on his behalf, or for his benefit, at any time before exhibiting his bill, or since, has paid or tendered to the respondent the amount expended in necessary repairs of the prem ises, deducting therefrom what the rents and profits, upon a fair computation, have amounted to, as the plaintiff has alleged; and that the plaintiff never demanded any account of the rents and profits, received and arising from the possession of the premises.
    The plaintiff, in his replication, avers and offers to prove all the allegations of his bill; traverses the allegations in the respondent’s answer, and prays judgment, &c.
    The parties had a hearing at an early day of the present term, before Jackson, J., from whose statement it appeared in evidence that the plaintiff did demand of the respondent his account of rents received and expenses paid for repairs, for the purpose of paying the balance, if there should be any due; being directed by his counsel to make such demand before the commencement of his suit, and as preparatory thereto. But he did not actually tender any specific sum of money. The respondent refused to state or exhibit any such account, and contended that he was entitled to an amount at least equal to what appeared due by the mortgage; alleging that he had not received any rent, or not enough to pay for the repairs; whilst the plaintiff believed, and probably alleged, that the debt was wholly paid by the rents, after deducting the repairs. Both parties appeared to have been mistaken. The respondent had received, according to the statement of the auditor, 126 dollars, 10 cents, and had paid for repairs 47 dollars, 92 cents, leaving a balance of 78 dollars, 18 cents. On the other hand, if the respondent was charged with all the additional sums with which the plaintiff would charge him, it would, as the judge understood, be not quite equal to the sum due on the mortgage. If it should be the opinion of the Court that the plaintiff could not recover, * without proving a formal legal tender, or showing that [ * 120 ] the debt was fully paid by the rents, the judge suggested that this latter fact might, perhaps, be further examined, if the plaintiff should wish it.
    
      Aylwin, for the plaintiff,
    contended that upon a view of all the statutes on this subject , it was clearly to be understood that the mortgagee was compellable to render his account of the rents and profits; and this must necessarily be previous to the mortgagor’s paying or tendering the amount due from him. Until such account is rendered, it is impossible, when the mortgagee has been in the pernancy of the profits, to ascertain the amount justly due to him. It is plainly unreasonable, and even absurd, to require the mortgagor to pay or tender the money apparently due by the mortgage, at the same time that the rents received may have nearly exhausted the debt; and thus leave him to his action to recover back the surplus. In Pomeroy vs. Winship 
      , the Court say that, when the statute, creating the equity jurisdiction of this Court, authorized the Court to proceed and determine according to equity and good conscience, it was undoubtedly intended that they should proceed, as to the subject matter of their jurisdiction, in the same manner as courts of a similar jurisdiction proceed in England, to whose laws and forms of trials all our statute provisions are referrible. In the English chancery, a bill lies in such case for an account limited only to twenty years . In this case the plaintiff amicably solicited an account from the respondent, and was utterly refused. Shall it be said, that for such a right, a court having equitable jurisdiction can furnish no remedy ?
    It is no objection to the maintenance of the suit, that the three years have expired, since the process was commenced in season. As in case of a writ by journey’s accounts, limitations do not attach, while a party is .attempting to maintain his rights . [ * 121 ] *This is a statute condition ; but if the party, whose duty it is to perform the condition, be hindered or obstructed in the performance of it by him for whose benefit it is to be performed, the party is excused . The respondent’s refusing to render his account was a hinderance and obstruction to the plaintiff’s making a tender. The plaintiff did all in his power towards fulfilling the condition, and is therefore excusable. When mutual acts are to be performed, he who has the most knowledge of the circumstances, shall be held to do the first act . The respondent, by consenting in the court below to the appointment of an auditor, and accounting before him, has, in effect, waived this objection.
    
      J. T. Austin, for the respondent.
    
      
       11 Will. 3, c. 59.—Ant. Charters, fyc. 326.—Stat. 1785, c. 22—1798, e. 77
    
    
      
       12 Mass. Rep. 525.
    
    
      
      
        Powell on Mortgages, 1025
    
    
      
      
        Com. Dig. Mat. P. 5.—Brown's P. C. 281.
    
    
      
      
        Co. Litt. 219, b.—Powell on Mortgages, 7.—1 Roll. Mr. 526.—4 Leon. 70 Scott 78. Scott.
      
    
    
      
      
        Plowd. 15.
    
   Parker, C. J.,

delivered the opinion of the Court.

We feel ourselves limited by the statute giving remedies in equity, to the cases provided for therein. This Court has no jurisdiction in equity, except what is expressly given by statute. We cannot entertain a bill of discovery, except in case of trust created by deed or will; and that jurisdiction is created only by the last statute respecting the equity powers of this Court .

The bill before us, if sustained at all, must depend upon the statute of 1798, c. 77, entitled, “ An act in addition to an act entitled an act for giving remedies in equity.” A bill to redeem under that statute, must set forth a payment, or tender of payment of the sum due; and the averment must be supported by evidence of that fact. It is true the mortgagor, or his assignee, may be subjected to inconvenience, by reason of his not knowing the amount of rents and profits, or the expense of repairs. But the statute gives him no remedy. He must make the best calculation he can, and tender at his peril. If he should tender more than is due, and the mortgagee should receive it, possibly an action would lie to recover back the excess, as paid by compulsion; provided he calls on the mortgagee for an account, and he refuses to give one.

* This case, it is hoped, will excite the attention of [ * 122 ] the legislature, who alone can remove inconveniences in existing laws. For justice seems to require that the mortgagee, or his assignee, should be holden to give an account of what is due, to enable the mortgagor to redeem, without the risk of losing what he shall tender beyond his debt.

We cannot consider the objection waived by submitting to the inquiry by the auditor. For the plaintiff insisted that nothing was due; and if he had been right, he would have been entitled to recover without a tender. It was therefore necessary to ascertain the state of the account; but the exception to the want of tender was taken sufficiently early to entitle the respondent to avail himself of it .

Bill dismissed without costs. 
      
      
        Stat. 1817, c. 87.
     
      
       [A bill may now be sustained, if there be an insufficient or no tender. Revised Statutes, e 107, § 19, 20.—Ed.]
     