I am unable to concur in the opinion of Mr. Justice Laughlin. The respondent is the owner of a lot of land in the city of Few York. At the time she acquired title there was a mortgage upon it and an adjoining lot for $1,100. This mortgage and the bond accompanying the same, at the time of the commencement of the action and for some time prior thereto, were held by the plaintiff. The mortgage contained a provision that “ The party of the first part may have the privilege of paying the sum of Five Hundred and Fifty Dollars ($550) with accrued interest on account of said principal sum on thirty days’ notice in writing to the party of the second part, or his assigns, and on the receipt of such payment the said party of the second part, or his assigns or personal representatives, agrees to release one of the parcels herein described from the lien of this mortgage, designated by the party of the first part.”
There was also a similar provision in the bond. Default *772having been made in payment of the principal sum and interest thereon, this action was commenced to foreclose. For some little time immediately prior thereto negotiations were carried on between the respondent’s husband and plaintiff’s agent, having for their object the payment of one-half of the amount due under the mortgage and the release from the same of the lot owned by the respondent. These negotiations, however, were ineffective and the action was commenced. Thereupon the respondent, having given thirty days’ previous notice that such tender would be made, tendered to the holder of the mortgage one-half of the amount due thereon, including interest and costs of the action to date, and demanded in return a release of her lot. ' The demand was refused. The tender was kept good and at the trial the identical money tendered paid into court.
The question presented is whether, a default having occurred in the payment of the principal sum secured, the respondent, on tendering one-half of the amount due, with interest and costs, was entitled to have her lot released from the mortgage and the action discontinued as to her.
I am of the opinion, upon principle and authority, the question suggested should be answered in the affirmative. When the respondent became the owner of one of the lots covered by the mortgage, the provision in it above quoted inured to her benefit. It was not a personal covenant, but instead one which ran with the land. (20 Am. & Eng. Ency. of Law [2d ed.], 1070, and authorities cited; Vawter v. Crafts, 41 Minn. 14.) She was, therefore, in a position to take advantage of its provisions, provided the same had not been forfeited by the default in payment of the principal sum.
It is contended, however, that the agreement to give a release is conditioned upon performance by the mortgagor of all the covenants and conditions contained in the mortgage; and that as a default had occurred, a right to have a release given did not exist. The' provision quoted does not expressly so provide. The covenant is unconditional. It is unlimited as to time. The provision of the mortgage upon which stress is laid in the prevailing opinion as to foreclosure and sale in case of default in no way, as it seems to me, destroys or modifies the provision *773giving the right of release. If the mortgagee is paid the proportionate amount due under the mortgage, and reimbursed for her expense in commencing the action, I am unable to see how injustice has been done her. Her remaining security is just as good as it would have been had the release been demanded before default and before the action was commenced. To hold otherwise might do a purchaser from the mortgagor of a portion of the premises covered by the mortgage a great injustice, since he could only protect his interest in the land by paying the whole sum secured by the mortgage.
I think the covenant quoted should be construed in connection with the other provisions of the mortgage and in the light of the manifest purpose which it was designed to accomplish. If that be done, then I think the right to a release continues until a judgment of foreclosure has been entered. (American Net & Twine Co. v. Githens, 57 N. J. Eq. 539; Vawter v. Crafts, supra; Commercial Bank v. Hiller, 106 Mich. 118; Gammel v. Goode, 103 Iowa, 301; Clark v. Fontain, 144 Mass. 287.)
Nor do I think that Werner v. Tuch (52 Hun, 269) is an authority to the contrary. Martin, J., who delivered the opinion, said: “ The provision giving the mortgagors the right to a release of a part of the mortgaged premises, when read in connection with the other provisions of the bond and mortgage, shows quite clearly that it was the intent of the parties that the mortgagors should have such right only so long as they should not be in default in complying with the provisions of the contract to be kept and performed by them.” Besides, there the amount tendered was not kept good. The Court of Appeals, in affirming the judgment, put its decision expressly upon that ground (127 N. Y. 217). Here the tender was kept good and the money tendered actually paid into •court.
The judgment appealed from awards the respondent costs and in this respect I think it is erroneous. The respondent, at the time the action was commenced, had not paid the amount required to release her lot from the effect of the mortgage. The action, therefore, was properly commenced as to her, and before she could get a release she was bound to pay the amount *774required therefor, together with the costs of the action to that time.
The judgment appealed from, therefore, should Le modified hy striking therefrom the provision awarding the respondent costs, and directing the chamberlain to pay to the plaintiff, upon receipt of a duly executed release of the mortgage covering the respondent’s lot, the amount paid into court by the respondent, and as thus modified affirmed, without costs to either party.
Scott, J., concurred.
Judgment reversed to extent indicated, with costs to appellant, and judgment directed as stated in opinion. Order to be settled on notice.