The opinion of the Court was drawn up by
Rice, J.The case is before us on bill and demurrers. The bill alleges, that while the defendant Smith held the mortgage and notes, the complainant tendered him the ■amount due thereon, which tender was refused. Neither the time when the. tender was made, nor the amount tendered, are set out in the bill. Whether a tender set out in such general and indefinite, terms could be held legally sufficient to sustain the bill, we do not now inquire, as the case turns upon other considerations. The bill also alleges, that subsequent to the tender, and before this process was commenced, Smith, to wit, on the 22d day of April, 1859, sold, transferred, and assigned said notes and mortgage to H. S. and Albert Tobey, the other defendants.
There is no suggestion that Smith retained any interest in *565the notes or mortgage after this assignment. Nor is he charged with any fraud, collusion or concealment in the transaction. It does not appear that he has been in the actual occupation of the premises, or that he has in any way made himself liable to account for rents-or profits. The notes mentioned in the mortgage were long past due when they were transferred by Smith, and therefore subject to all equities in the hands of his transferees. Nor is any discovery sought from Smith. The bill, therefore, not only fails to show any interest in Smith, but, on the contrary, clearly shows that he has no interest whatever, and had none when the bill was" commenced. As to him, therefore, the demurrer must be sustained.
Can the bill be maintained as to the other defendants ? If maintained, it must be under the provisions of c. 90, R. S.
No tender has been made to them, nor has there been any demand upon them to account. They are not shown to have been in possession, nor in the reception of rents or profits. The provisions of §§ 13 and 14, c. 90, R. S., do not therefore apply. Nor are they liable under the provisions of § 16 of the same chapter, because no process for the foreclosure of the mortgage under § 5 has been commenced; nor is it alleged that they reside out of the State, nor that their residence ivas unknown to the complainant.
It is not perceived how the .transfer from Smith could have kept the complainant out of the possession.
The demurrers of all the defendants
must be sustained, with costs.
Tenney, C. J., May, Goodenow, Davis and Kent, JJ., concurred.