1. Although my opinion of the constitutionality of the act of congress on this subject, as applicable to contracts made before the passage of the law, remains unchanged, I feel bound, under the decision of the Court of Appeals in Meyer v. Roosevelt, to decide that- a tender inz United States notes is sufficient.
2. The evidence of the authority of the president of the bank to make the purchase, and the subsequent acts of the board of directors as to ratifying the sale and accepting the purchase, with the proof that the president had authority to sign for the bank, and affix the seal, is sufficient to hold the bank liable on the covenant in the deed. The general authority to purchase the lot authorized the president to purchase on such terms as he considered for the interest of the bank, and if he thought best, to purchase subject to the mortgage. That was a part of the purchase money they were bound to pay.
3. The tender, when made, was accompanied by a satisfaction piece which the plaintiff was requested to sign. This he was not bound to do. The money should be tendered irrespective of any other act. If a receipt or satisfaction piece is asked for, it vitiates the tender. (Ryder v. Townsend, 7 Dowl. & Ryl. 119. Wood v. Hitchcock, 20 Wend. 47. Brooklyn Bank v. De Grauw, (23 id. 340.) A party may accept the amount tendered, and then bring his action for the balance. (1 Camp. N. P. 181.) This he could not do if he signed a satisfaction piece.
4. The conveyance being to the president of the bank, the covenant must of necessity be in the same way; and as the act authorizes the use of the title as president of the bank, the liability arises on the covenant made by him, in the same manner and to the same extent as the property could be so conveyed.
*584[New York Special Term, April 2, 1866.5. It may be doubted whether a tender is good when it appears that the money tendered was afterwards used by the debtor in his own business, and mingled with his other money. He is to keep the money always ready to pay when demanded, and when bills are tendered in payment and not objected to, the same bills should be brought into court. This would not be necessary to discharge a lien, but it might be, to deprive a creditor of interest on his debt. (Kortright v. Cady, 21 N. Y. Rep. 343.) And it would be immaterial whether the tender was made on the day of payment, or subsequently. (Farmers’ Fire Insurance and Loan Co. v. Edwards, 26 Wend. 541.)
There is proof in the case that the defendant, after the tender, put the money into the funds of the bank, and used it with the other money of the bank in its ordinary business. This I think not in accordance with the ordinary rules as to tender. A party who makes the tender is bound to keep the money at all times ready for payment when demanded, and when sued is bound to bring the money into court. And the theory upon which the tender of the debt stays the interest is, that the debtor is obliged to keep the money ready to pay on demand. Nelson, Ch. J. in Brooklyn Bank v. De Grauw, (23 Wend. 345,) says: “The defendant must plead that he always has been and still is ready with the money tendered, and it must be in court on the trial.”
The stipulation was made after suit brought, and does not affect the question as to the validity of the tender before suit.
The plaintiff is entitled to judgment for the debt, and interest.
Ingraham, Justice.]