Nelson v. . Loder , 132 N.Y. 288 ( 1892 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] Whether the defendant is entitled to interest on the debt secured by her bond and mortgage to the date when she shall be paid by the plaintiff, or only to October 18, 1880, the date of the tender, is the only question involved in this appeal. In case the whole amount secured by a mortgage is due, the tender of the sum unpaid by the owner of the mortgaged premises extinguishes the lien of the mortgage, though the tender is not kept good, but it does not discharge the promise or covenant to pay the debt for which the debtor remains liable. (Kortright v. Cady, 21 N.Y. 343; Werner v. Tuch, 127 id. 217; Mitchell v. Roberts, 17 Fed. Rep. 776; 783;Haynes v. Thom, 28 N.H. 386, 400; Chitty on Contracts [12th ed.], 787; Jones Mort. § 886.)

If a debtor wishes to extinguish his liability for subsequently accruing interest, or demands some affirmative relief, he cannot retain the money, subject to his own use, but must devote it to the specific purpose of paying the debt, and put it within the power of the creditor to receive it at any time. He must keep his tender good. (Tuthill v. Morris, 81 N.Y. 94, 100; Harris v.Jex, 55 id. 421, 425; Gyles v. Hall, 2 P. Wms. 378;Bishop v. Church, 2 Ves., Sr. 371; Garforth v. Bradley, 2 id. 675; Stow v. Russell, 36 Ill. 18; Jones on Mort. § 892; Thomas on Mort. § 399; Coote on Mort. [4th ed.] 885.)

A subsequent lienor's right to redeem a prior security is derived from the owner of the mortgaged premises, and he is in this respect, in no better position than the owner, and his tender, if he wishes to stop interest or compel an assignment of the prior lien, must be as absolute and specific as that which the owner is required to make as a ground for affirmative relief or to stop the running of interest.

The judgment should be affirmed, with costs.

All concur.

Judgment affirmed.