The plaintiff sold to the defendant, by plat and at public auction, a lot of land platted as containing 43,918 feet, at five and one quarter cents per foot. The plaintiff ascertained after conveyance that the lot contained 55,680 feet instead of 43,918 feet, and commenced this suit for a rescission of the conveyance on the ground of mistake. The court thereupon decreed a rescission and reconveyance, unless the defendant should pay for the surplus land at the auction price, with interest, on or before a day to be fixed by the master to whom the cause was sent, for the purpose (inter alia) of ascertaining the amount so payable for the surplus1. The master made report on the 15th March, 1867, that up to that date the amount so payable was $850.23, and named the 20th April, 1867, as the day on or before which payment thereof should be made, interest being left to be added thereto from the 15th March to the day of payment. On the 20th April the defendant failed to find the plaintiff, who was absent from the state, without leaving any one in the state to represent him. The plaintiff, on his return, claimed that the defendant had failed to accept the option given him by the decree, and applied to the master for an execution of the decree in his own behalf. On a hearing before the master on this application, *Page 598 William Gilpin made affidavit that on the 20th April, 1867, he, acting as counsel for the defendant, went with the defendant, who had a check for the amount to be paid for the surplus land, to the Aquidnick Bank, and there requested the teller to give him the money in legal tender, "meaning by that greenbacks, so called, or United States national bank notes;" that he believed this request was complied with; and that with the money so received they went to the plaintiff's house, and there tendered the same to his son, Isaac Lawrence, who, disclaiming any authority to act for the plaintiff, refused to receive the same. The defendant made affidavit that the tender was made "to be paid on the spot in greenbacks, or United States notes of those of the national banks organized under the act of Congress in that behalf." Isaac Lawrence made affidavit that, at the time the offer was made, he said to the defendant and Gilpin that it seemed to him that if they wished to make a valid tender it should be in gold, and that Gilpin responded bank notes were good enough for him. No affidavit was produced from the teller who furnished the money. The master found that the defendant had not complied with the decree, and the defendant excepted to the finding. This court overruled the exceptions, being of the opinion that the master might fairly come to the conclusion, especially in view of the fact that the affidavit of the teller was not produced, that the evidence did not show whether the money which the defendant procured at the Aquidnick Bank was legal tender, that is to say, treasury notes, or simply national bank notes. The case comes before us now upon the motion of the defendant for further time within which to pay for the surplus land, and, if necessary for that purpose, for a recommitment to the master. In support of this motion the defendant has submitted several affidavits, and among them the affidavits of William Gilpin and of Charles T. Hopkins, the teller of the Aquidnick Bank. Mr. Gilpin makes affidavit that he did not intend by the language used in his previous affidavit to make a distinction between greenbacks, so called, and United States national bank notes, but that he meant to apply different names to one and the same thing; that he distinctly remembers that he called for legal tender notes, United States notes, greenbacks, so called, and that he personally examined the package and knows that all the money tendered by *Page 599 the defendant at the house of the plaintiff was in legal tender notes, and no part of it in national bank notes. Mr. Hopkins makes affidavit that some years ago the defendant came to the Aquidnick Bank and requested him or the cashier, or both of them, to furnish him, the defendant, a large amount of money in United States legal tender notes, commonly called greenbacks; that he does not recollect the amount called for or given, but does recollect that the amount furnished was given in United States legal tender notes. Other affidavits were submitted containing corroborative testimony to the same point.
We think there is little reason to doubt that if the testimony now before us had been before the master, it would have convinced him that the defendant, on the 20th April, procured the money with which to pay for the surplus land in "greenbacks," and consequently, if such money is a legal tender for such a payment, that the defendant was in no default. But the testimony was not before the master, and the defendant gives no satisfactory reason why it was not. The absence of the testimony was his own fault, and very plainly, therefore, he does not make a case for recommitting the master's report for rehearing, because of this testimony. But, though this be so, the testimony may nevertheless be used in support of the motion for further time, if that motion be grantable, inasmuch as it tends to show, not only that the defendant had provided himself with "greenbacks," but also, if it falls short of showing that, to show that the defendant intended in perfect good faith to accept the option accorded to him by paying for the surplus land in legal tender notes, and that his failure to provide himself with such money, if he did fail, was undesigned, and would unquestionably have been remedied if the plaintiff had been at home and had objected to the tender on that account.
This being the case, the question arises whether the court now has the power, and if it has, whether it ought not to allow the defendant further time to pay for the surplus land. This question has been argued with great zeal and learning on both sides. On the part of the plaintiff it is contended that to give the defendant further time to pay for the surplus land would be in effect to change the decree under which the time for such payment was originally fixed; and that any change in the decree, the *Page 600 decree being final, could only be made on a petition for a rehearing or on a bill of review. Ordinarily a petition for rehearing or a bill of review is employed to correct some error of fact or of law in the making of the decree; but in the case at bar the defendant does not seek to correct any such error, but to be allowed further time for the acceptance of a provision of the decree which is in his favor. A rehearing or review of the cause upon its merits is something which the defendant does not desire; and certainly we can see no reason, so long as the parties are in court awaiting the execution of the decree, why a change of the decree which affects simply the manner of its execution, should not be made upon motion, if it can be made at all. The case ofFord v. Wartell, 2 Phillips, 591, bears upon this as well as upon another point in the case at bar. That was a suit for the foreclosure of a mortgage in which a decree was made for foreclosure, and after several enlargements of the time for payment, the plaintiff ultimately obtained an order absolute of foreclosure, which order was in due course enrolled. The defendant subsequently applied for a further enlargement of the time, which was allowed upon his simple motion. It appears to be a familiar practice in the English chancery courts to extend the time fixed for payment under a decree for foreclosure, and always upon motion. Edwards v. Cunliffe, 1 Madd. 287; Eyre v.Hamon, 2 Beav. 478; Anonymous, Barn. Ch. 221. We are therefore of the opinion that if the time can be enlarged at all, it can be enlarged upon motion, — and most properly upon motion.
The plaintiff further contends that we cannot, in any form of proceeding, give the defendant the relief for which he seeks. He contends that under the decision and decree of the court, the estate is now vested in himself, and that it cannot be divested in favor of the defendant, — the defendant by his failure to comply with the decree having incurred an irremediable forfeiture. The argument in principle goes to this extent: If the defendant on the 20th April, had supplied himself with money to pay for the surplus land in what he believed to be gold or greenbacks, and had kept it for the plaintiff until his return, and then tendered it to him, nevertheless he would utterly lose the benefit of his option if the plaintiff by critical examination could discover among the money so tendered a single counterfeit coin or bill. Now it *Page 601 cannot fail to strike any fair mind, that, if such is the law, it is a dishonor to our system of equity jurisprudence. The plaintiff likens his situation to that of an owner of land who has contracted to sell it to be paid for when conveyed upon a particular day, which by the contract is made material. Unquestionably under such a contract the vendor could not be compelled to part with his land unless payment should be made or tendered at the stipulated time, from whatever accident or misfortune it might be omitted. The plaintiff is perhaps led to this view by an erroneous opinion, which is more than once expressed or implied in his argument, that his deed to the defendant, by reason of the mistake against which he asks relief, was void and wholly ineffectual to pass the title of the land which it purported to convey to the defendant, whereas at law the title passed by the deed, which even in equity is not wholly void, but voidable only by the action of the court. The privilege of paying for the surplus land was given to the defendant not in order that he might by so doing acquire a title which he had not, but that he might thereby avoid losing by a rescission of his deed the title which he already had. In our view, therefore, an executory contract for the sale of land does not afford so just an analogy as a lease with clauses of reentry or forfeiture in case the rent is not paid by the stipulated day. Under such a lease if the rent is not duly paid, the forfeiture is relievable in equity in a proper case upon payment with interest at a later day. 1 Greenl. Cruise, tit. xii. c. 11, § 34; 2 Story Eq. Jur. §§ 1314, 1315. But a still closer analogy is to be found in the cases, to which we have already referred on another point, in which decrees for foreclosure have been made. Under such a decree a day is fixed on or before which the mortgagor is to redeem his mortgage or be foreclosed. Yet it is the practice for very slight reasons to enlarge the time. Fleetwood v. Jansen, 2 Atk. 467;Eyre v. Hansen, 2 Beav. 478; Renvoize v. Cooker, 1 Sim. S. 364; Quarles v. Knight, 8 Price, 630; Mowry v.Edwards, 4 Russ. 125. In an Anonymous case in Barnardiston Ch. 221, the period was renewed three times, and in Edwards v.Cunliffe, 1 Madd. 287, four times. But it may be said a decree of foreclosure has acquired in practice a meaning which distinguishes it from the decree before us. In Ford v.Wartell, Lord Chancellor Cottenham said: "The meaning of a decree in a foreclosure suit *Page 602 is merely that, in a certain event, — viz., non-payment of money within a time to be fixed by the master, — the court will foreclose. It is the subsequent order on default of payment which creates the foreclosure." But, admitting the distinction, the practice is nevertheless evidence of a power in the court to regulate the execution of its decrees in accordance with equity and good conscience. Moreover the decree has this meaning only until an order has been passed making the foreclosure absolute; and yet there are cases in which the time for redemption has been enlarged after the passage of such an order, and even after its enrolment. Jones v. Creswicke, 9 Sim. 304, and precedents therein recited. Ford v. Wartell, 2 Phillips, 591. In the last named case virtually the same point was taken which has been taken in this case, namely, that the order absolute gave the mortgagee an estate, which, after the order was enrolled, could only be divested if at all in the house of lords. But the lord chancellor was of the opinion that the time might be enlarged, and accordingly enlarged it without vacating the enrolment. In the subsequent case of Thornhill v. Manning, 1 Sim. N.S. 451, Lord Cranworth, in explanation of the jurisdiction, remarked that the extension of the time was something collateral to the order making the foreclosure absolute, the order remaining the same order notwithstanding the time was extended. In one respect, these cases are stronger than the case at bar, for, but for the motion for further time, they had been, for anything that appears, completely disposed of, whereas in the case at bar the decree is still in process of execution. The plaintiff, however, contends that these cases are not in point as precedents, and cites as authority for this view the language of Lord Cranworth in Thornhill v. Manning.
In that case, Lord Cranworth, after disposing of a question touching his jurisdiction, said: "Then the question is whether,on the merits, I ought to make the order? (for further time.) This depends on what is the doctrine of the court in regard to mortgages. They are anomalous cases; the court in dealing with them is governed by rules which are totally different from the rules which govern it in other cases. The contract between a mortgagor and a mortgagee has been treated by this court, from time immemorial, as being something different from what it purports *Page 603 to be, namely, as a contract for the repayment of money for which the mortgaged estate is a pledge, which the borrower may redeem notwithstanding the day named in the proviso for redemption has long passed." His lordship then proceeds to remark that the court is strongly inclined to assist a mortgagor who applies promptly and has the means of payment, but that he must not lie by and let the mortgagee take the estate and deal with it as if he were to hold it permanently as his own. Lord Cranworth was not considering in these remarks whether the court had the power to enlarge the period of redemption, but, the power being asserted, upon what terms it should be exercised, and, in our opinion, all he means to say is, that in the case of a decree of foreclosure the court is far more liberal than in the case of other decrees. It does not follow, from the fact that a motion for further time on the part of a mortgagor, if promptly made, is favorably received, that a similar motion on the part of any other litigant will not be entertained at all, whatever claims he may have upon the consideration of the court. We think such a motion may be entertained, and consequently that the defendant's motion may be entertained, and, if supported by satisfactory reasons, granted.
The reasons in support of the motion are disclosed in the affidavits and other evidence before the court. The affidavits show that the defendant meant in good faith to accept the privilege of paying for the surplus land, and that he applied to the Aquidnick Bank for the money in legal tender notes, which, upon the testimony now before us, there is little reason to doubt he obtained; that he carried the money obtained to the plaintiff's house and found no one to receive it; that he had ample means to procure legal tender notes, and, if by any mischance he did not have them, would have procured them if the plaintiff had been at home and had objected that the tender was not made in legal tender notes; that he made a special deposit of the money which he had, and, that four days afterwards, April 24, 1867, Mr. Gilpin for the defendant wrote to the plaintiff informing him of his effort to make payment, and that the money would be paid to him when he would name time and place to receive it; that the plaintiff did not name any such time or place, but insisted (and so far as appears without regard to whether the defendant had *Page 604 the money in legal tender notes or not) that he was entitled to a reconveyance of the land from the defendant. Evidently, therefore, if the payment could have been made in legal tender notes, the plaintiff's claim to a reconveyance rests upon a mere technicality, a possible miscarriage, which if it occurred did no harm, and which consequently, we think, should not be allowed to prevail against the defendant's motion.
The plaintiff, however, contends that the payment could not have been made in legal tender notes, unless by his consent, for the reason that such notes are a legal tender only for the payment of debts; and the defendant's option is not a debt. It is true the option is not strictly speaking a debt; but nevertheless the purpose of the court in giving the option was to enable the defendant to retain his purchase upon rectifying the mistake by which the purchase was vitiated. In that view any money which would have been legal tender for the purchase, if no mistake had occurred, ought in equity to answer as legal tender for the rectification of the mistake. The purchase was after the first two legal tender acts went into effect, and, for anything that appears, when legal tender notes were available in payment. Doubtless, therefore, if our attention had been alert to the possibility of this question, when the decree was entered, we should have expressly provided for the kind of money to be used in the payment permitted to the defendant. The decree was entered without such express provision, and the question now is, whether in its absence United States treasury notes were a valid tender. In Perry v. Washburn, 20 Cal. 350, and in Lane County v.Oregon, 7 Wal. 71, it was decided that such notes are not a valid tender in payment of state taxes when the law of the state prescribes payment in gold and silver coin. Upon the authority of these cases, if the decree had prescribed payment in coin, a tender of payment in treasury notes would have been invalid. The decree, however, did not prescribe payment in coin, but left it to be made in any money which the law would sanction. The legal tender acts declare that the notes issued under them shall be "lawful money and a legal tender in payment of all debts public and private," c. The acts, however, do not declare that the notes shall be a legal tender between private citizens for the payment of anything but debts; and because *Page 605 they do not, the plaintiff contends that the notes are not available for the payment permitted to the defendant. We do not think this is a necessary inference; but on the contrary we are of the opinion that the notes, being lawful money and a legal tender in payment of debts, may be used wherever money is to be paid, unless a different kind of money is required, either expressly or by implication. Certainly this is the view which is consonant with practice in this state; for neither taxes nor fines have been exacted in coin. We have a statute which authorizes a tender of pecuniary amends in cases of tort (Gen. St. ch. 501, § 10). It would be singular if a tender of United States treasury notes would be nugatory in such a case, when the same kind of money would be entirely lawful in satisfaction of a judgment recovered against the party making the tender. We think it the more reasonable view that the same money which would satisfy the judgment might lawfully be tendered in amends for the tort. The plaintiff objects that it is in violation of the Constitution of the United States for a state, and a fortiori for any court in a state, to make anything but gold and silver coin a legal tender. The Constitution simply declares that no state shall "make anything but gold and silver coin a legal tender in payment of debts." The option permitted the defendant is confessedly not a debt; if it were a debt, the question now under discussion would not arise.
We therefore think that the fact that the defendant did not purpose to make his payment in gold and silver, and consequently did not prepare himself so to make it, is not a reason for refusing to grant the defendant's motion.
We grant the motion, but, inasmuch as the expense of the litigation since the decree is largely attributable to the carelessness of the defendant, we shall charge him with the payment of costs in this suit.
Decree accordingly. *Page 606
APPENDIX I.
------------
THOMAS McCUSKER vs. PATRICK McEVEY. Dissenting Opinion of Mr. Justice Potter.
NOTE. — The opinion of the majority of the court in the above entitled case will be found reported in 9 R.I. Reports, at page 528. The head-notes to the case as there reported are as follows: —
If one having no title to land, conveys the same with warranty to A. by a deed which is duly recorded, and he afterwards acquires a title and conveys to B., the purchaser of B. is estopped to aver that the grantor was not seised at the time of his conveyance to A., the first grantee. The after-acquired title will feed the estoppel created by the conveyance to A., and conclude the grantor and all persons claiming under him. And this, although the deed to A. was a deed poll, notwithstanding the obiter dictum in Gordon v. Greene, 5 R.I. 104. The right of the purchaser of A. to insist on the estoppel is not impaired by admitting, in an action for the possession of the land, that A.'s grantor had no title when he conveyed to him.
At the time that volume was published, the dissenting opinion of Judge POTTER had been mislaid, and could not be found; but having since been found, it is now published here. — REPORTER.
1 See, in addition to cases cited in 8 R.I. 272, Gerrard v. Frankel, 30 Beav. 485, and Harris v. Pepperell, 5 L.R. (Eq. Cas.) 1. In Gerrard v. Frankel, there was an agreement for a lease, reserving a rent of £ 230. By mistake on the part of the lessor, the lease was executed, reserving a rent of £ 130. The court gave the lessee the option to rectify or annul the lease. In Harris v. Pepperell, by mistake on the part of the grantor, a deed was executed, including land not intended to be conveyed. The grantee was allowed the option to rectify or rescind the deed. The bill in each of these cases was a bill to correct the mistake, but, inasmuch as the mistake was not mutual, the correction was decreed subject to an option in favor of the defendant to rescind. The cases illustrate the power which a court of equity has in certain cases to make it optional with the defendant whether the relief prayed for or a different relief shall be administered.