This action was commenced in the Supreme Court to foreclose a mortgage executed by the defendants to John M. Fisk, and which was assigned by Fisk to the plaintiff's testator, Charles Wheelock, who, having died pending the suit, the plaintiff was substituted. The defendants purchased of Fisk a wagon shop in Booneville, Oneida, and gave the mortgage in question for $7,750, to secure the purchase price of the premises. The mortgage was dated April 20, 1857, and was conditioned to pay the above sum in lumber *Page 500 wagons, made in a good, substantial, workmanlike manner, and of good material, so as to constitute a first-class lumber wagon of the kind heretofore used and made in Booneville, at the price of $70 per wagon with box, or $65 without box. These payments were to be made in installments of $1,000 each, except the last, $750. Fisk, the mortgagee, had carried on the wagon-making business in the shop up to the time he sold to the defendants.
These premises were, at the time of the sale to the defendants, incumbered by a mortgage executed by Fisk to one Whiting Tuttle. This mortgage, of course, belonged to Fisk to pay. It is provided in the mortgage given by the defendants to Fisk, that in case the payments due by the said Fisk, or which shall become due from him or his mortgage, executed to the said Whiting Tuttle, shall remain in arrear or unpaid, then the payments hereinbefore provided to be paid, may be suspended by the parties of the first part until the said Fisk shall pay the same; and in case the said incumbrance upon the premises shall not be extinguished by the said Fisk by the 15th May, 1860, then the said parties of the first part may suspend the payment due at that time, and any further payment, until the said mortgage to the said Tuttle shall be extinguished.
The case shows that all the payments were made as they fell due except the payment of $1,000, which fell due May 15, 1860, and the payment of $750, due June 15, 1860.
The wagons to meet these payments were made and completed in time, and the defendants were anxious to have the plaintiff's testator discharge the incumbrance created by the mortgage of Fisk to Tuttle. When the last $1,000 payment of May 15, 1860, fell due, the defendants had twenty wagons completed, which had been made to deliver on this mortgage. These wagons stood in the defendants' shop. On that day Fisk, who then held the mortgage, came to the defendants' shop and inquired if the wagons were ready for delivery, and was told by one of the defendants that they were. Fisk examined the wagons and said he was not ready to take them away, and asked the defendants to store them *Page 501 for him, and he would afterward take them all away together.
It was agreed that the defendants should put them in store, and that Fisk would pay the defendants for their trouble.
The defendants took the wagons in pieces and put them into their barn. The defendants completed enough wagons before the 15th June to make the last payment of $750, and stored them with the others. All of these wagons, twenty-seven or twenty-eight in number, remained in the defendants' barn until the last of the ensuing October, when the defendants, having occasion to use the barn, removed them to Post's store-house, on the canal, and got them stored there. On the 22d May, before the last June payment fell due, Fisk assigned the bond and mortgage to Wheelock, but the defendants were not notified of the assignment until the last of June, 1860. These wagons were sufficient to make these two payments of $1,000 and $750, and they remained in Post's store-house until the 19th day of August, 1861, when the defendants served upon Wheelock a written notice that these wagons, to pay the mortgage, were at Post's store-house, ready for delivery, that they were thereby tendered to him, that the Tuttle mortgage was unpaid, that the defendants demanded satisfaction of their mortgage, and that unless he, Wheelock, satisfied that mortgage, and relieved them from the incumbrance of the Tuttle mortgage in ten days, legal proceedings would be taken. This store-house of Post was required for quarters for soldiers, and the defendants consulted Wheelock as to where they should be stored. Wheelock suggested that they be put in some buildings belonging to the defendants, to which the defendants assented, and they were put there. The defendants paid Post $20 for the storage of the wagons, and they claimed $10 for their own storage and trouble, and this Wheelock agreed to. These wagons remained then with the defendants until Wheelock procured a new security to the defendants against the incumbrance of the Tuttle mortgage, and that matter was adjusted and arranged satisfactorily between *Page 502 the parties. Wheelock then demanded the wagons. This was on the 20th of April, 1862. The defendants were ready and offered the wagons, but refused to pay the interest on these two payments for the two years in which the wagons were lying in store. This delay in completing the payment, was caused by the plaintiff's testators, and Fisk's neglect to pay the Tuttle mortgage or properly to arrange. We must assume that these wagons were not unconditionally tendered to Wheelock until the Fisk mortgage was arranged, as the referee has found that there was not any sufficient tender in 1860, and that the property remained with the defendants until April 30, 1862.
There was not, probably, a strictly technical tender in law until April 30, 1862, when there was legal tender, if the amount tendered was sufficient. There was no default before, by the terms of the mortgage, and, besides, the delay was acquiesced in by both Fisk and Wheelock all along, and the plaintiff's right to have the Tuttle mortgage removed acknowledged. Upon these facts the judge at Special Term held that there was no sufficient tender of the wagons to operate as a payment of the mortgage, and gave the plaintiff a judgment of foreclosure, and judgment was entered for the plaintiff, which was affirmed on appeal to the General Term, and from which the defendants have appealed to this court.
There is no principle of equity upon which this judgment can be sustained. The court below seems to have decided the case upon the strictly legal principle applicable to law of tender.
The plaintiff comes into court in this case, asking and invoking the equitable powers of the court to enforce payment of his mortgage, and he must be held subject to the maxim of equity, that "he who seeks equity must do equity." (1 Story's Eq. Jur. § 64 e.) The plaintiff, who is seeking relief in a court of equity, can claim no exemption from this rule.
Applying this rule to the case before us, I do not see how it is possible that these defendants can be required to pay interest upon these two payments during the time these *Page 503 wagons were kept in store for the plaintiff. The defendants were obliged to complete the wagons and have them ready by the time, as he could not know whether the Tuttle mortgage would be discharged or not, and he was compelled to keep at all times ready for delivery, whenever the plaintiff should call for them, after having satisfied the Tuttle mortgage. The defendants had expended their money and labor in getting up these wagons, and the investment brought no return to them for the years they were kept in store waiting for Fisk and the plaintiff's testator to remove the incumbrance of the Tuttle mortgage from the premises. The terms of the defendants' purchase of the premises were, that the payment should be made in these wagons, of a particular description, and the duty rested upon the mortgagee, Fisk, to pay off, or at least to cause the incumbrance of that mortgage to be removed from the premises, and the right was secured in the mortgage to the defendants, to withhold these two last payments until that was done; and the mortgage expressly provides that such suspension and withholding shall not be a breach of the condition of the mortgage. It is apparent, therefore, that there was no default made by the defendants in not unconditionally tendering these wagons at the day named. There was no default unless the refusal to pay the interest for these two years the wagons had been kept in store, operated as such. There is no principle of equity upon which the defendants can be required to pay interest while the wagons remained in store, waiting for the mortgagee, Fisk, and his assignee, Wheelock, to clear the title of the incumbrance resting upon it. The case is analogous to that of vendor and vendee of lands, where the purchaser has made deposit of the money to meet his purchase, and a delay ensues in consequence of vendor's inability or neglect to make a clear title, in which case it is held, that the purchaser shall not be required to pay interest pending such delay, if the money has laid idle. (Dart on Vendors, 59, 60; 2 Sug. on Vendors, 17, 18, 19; Powell v. Martyn, 8 Ves. 146; Winter v. Blades, 2 Sim. Stu. 393; Brockenbrough v. Blythe, 3 Leigh, 619.) This is the well-settled *Page 504 rule where the money has been set aside for the vendor, and the purchaser has given the vendor notice or informed him of the fact.
The rule applies with still greater force to a case like the present, where the payment is to be made in an article of property which can in no possibility bring any return to the purchaser. The general principle, that interest is recoverable upon past due obligations for the payment of money, depends upon the debtor being in default. (Rensselaer Glass Factory v.Reid, 5 Cow. 611.) Interest is not a part of the debt, but something added to it by way of damages for the detention of the debt (Stevens v. Barringer, 13 Wend. 640), and while the obligation of debt remains, notwithstanding there may be circumstances when it is unlawful for the debtor to pay it for a time, yet the duty to pay still continues. Not so with the interest. It may be laid down as a general rule, that, whenever the law prohibits the payment of the principal, interest during the existence of the prohibition is not demandable.
This rule applies during the continuance of a status of war, where the party is restrained by injunction, or by attachment, from making the payment. (Conn v. Penn, 1 Pet. C.C. 524;Hoon v. Allen, 2 Dall. 102; Stevens v. Barringer, 13 Wend. 639; Braintwait v. Halsey, 4 Halst. 3; 4 Mass. 170; 2 Dall. 215; 1 Yeates, 274.)
And so when the principal debt is to be paid on a fixed day, and the party is required to do some act beneficial to the party, and such act is to be performed before the duty to pay becomes absolute, and the party is prepared with the funds at the day, and ready to make his payment, and deposits the money to make the payment, and notifies the other party of the fact, no interest can be claimed during the delay caused by the party's own fault.
The case before us falls within this rule. The defendants' payment must of necessity have been ready on the 15th May and June, 1860, respectively, as he could not know whether the holder of the mortgage would not remove the lien of Tuttle's mortgage, and they must necessarily keep *Page 505 these wagons on hand ready to meet a demand for, as they could not tell when the call for them might occur.
It is true, the defendants might have made an unconditional tender on the pay day, but he was under no legal obligation to do so, and he would, by so doing, have surrendered important rights secured to him in the mortgage. This they were not required to do. This loss and injury, sustained by reason of these wagons remaining in store for nearly two years, and all the injury sustained by the plaintiff therefrom, is the consequence of the act of the plaintiff's testator, or Fisk, his assignor, and it does not lie with them or the plaintiff, who has succeeded to their rights, to complain of the loss of this amount of interest.
The defendants performed with punctuality and fidelity their obligation, and to charge the defendants with the loss of the interest on this capital of $1,750, tied up in these wagons, which they could not use, would be most unjust and unreasonable. The defendants invested their money and labor in these wagons, and had, in fact, this amount of capital invested in them, and, during these two years' suspension, they were losing the interest on the money invested in the wagons, and if they are required, during the same time, to pay interest to the plaintiff, they are made to pay double interest; and it is no sufficient answer to this to say, the defendants could have avoided this by delivering the wagons at once, and let the land they had paid for remain under an incumbrance to Tuttle, and take risk of Fisk's personal responsibility to remove, for this was not what the defendants bargained for. It is only necessary to apply to the plaintiff, in this case, the maxim of equity, that he who seeks equity must do equity, to reverse the judgment of the Supreme Court in this case, which should be done.
Judgment reversed. *Page 506