Tne opinion of the Court was drawn up by
Parker C. J.It is very clear that all the issues except the first, are immaterial, and that the first was found for the defendant against all the evidence in the case which could legally bear upon it. The mortgage deed produced by the demandant entitled him to a verdict on the first issue, there being no payment or tender of payment of the money due according to the condition, until four years after the condition broken, so that the demandant’s title at law was perfect, sub-
*243iect only to be defeated by a process in equity founded upon payment or tender of payment after condition broken and before foreclosure.
If judgment should be rendered on the verdict in favor of the tenant, the demandant would be entirely deprived of his security,1 and probably of his debt, without any consideration or equivalent, for we cannot consider that the loose conversation testified to by the brother in regard to his claims has proved any intention to give up his security, or that it can hat e the effect of a release or discharge of the mortgage in law or in equity.2
Whether a ténder or any fact equivalent was proved, is wholly unimportant, as the tenant’s right at that time subsisted wholly in equity, and he could no otherwise enforce it than by a bill in equity.3 The tenant’s counsel has reminded us since the argument, that no objection was taken at the trial to the time of the supposed tender, and he refers us to the case of Arms v. Ashley, 4 Pick. 71, to show that it could not afterwards be raised. But the cases are wholly different. In the case cited the point was, that a fact capable of proof, but omitted to be proved or called for at the trial, was on the hearing of the questions reserved stated as a ground of objection to the verdict. In this case the point on which the cause turns appears on the record and in the proceedings, and from the tenant’s own showing, no other evidence touching it could have been produced had the question been made at the
trial, for the tenant’s right to tender did not exist until 'ong after a tender could have defeated the demandant’s title et. law. Admitting that payment tendered and received after condition broken and before foreclosure, would be a sufficient defence to an action brought by the mortgagee for possession,4 it would not follow that a tender not accepted would be The first might operate as a discharge of the debt and waiver of the breach of the condition ; and it might be unreasonable to allow the mortgagee to recover possession, when by another suit he would be immediately obliged to surrender it. But the case of a tender is different. The debt. is not discharged, and it is only in equity that the mortgager can avail himself of it.1
The proper course in this case is for the plaintiff to recover the conditional judgment, as in case of mortgage, unless the tenant has a better defence than is shown by the report of the case.
Verdict set aside and a new trial granted.
It is held in New York, that if a legal tender is made of the money due on a bond and mortgage, to the mortgagee, or his assignee or attorney, which is refused, the land is discharged from the mortgage, though the debt remains. Bowers v. Crafts, 18 Johns. R. 110. See Willard v. Harvey, 5 N. Hamp. R. 252; Bailey v. Metcalf, 6 N. Hamp. R. 156; Patchin v. Pierce, 12 Wendell, 61.
As to the time when a tender may be legally made of a sum due on a contract for the payment of money, in Massachusetts, see ante, 108 n. 1.
See Maynard v. Hunt, 6 Pick. 489.
In New Hampshire, after a tender of the whole amount secured by a mortgage, the mortgager may maintain a writ of entry against a mortgagee, if he retains possession. Bailey v. Metcalf, 6. N. Hamp. R. 156.
In New York, a tender of the money after forfeiture does not operate to re-invest the title in the mortgager, but a tender and acceptance has that effect, Patchin v. Pierce, 12 Wendell. 61
If it appears, that a debt secured by a mortgage has been paid, the mortgagee, in a writ of entry upon his deed, cannot have judgment ibr possession of the land. Vose v. Handy, 2. Greenl. 322. See Gray v. Jenks, 3 Mason, 520; Wade v. Howard, 11 Pick. 297; Perkins v. Pitts, 11 Mass. R. (Rand's ed.) 131, n. a; Howe v. Lewis, 14 Pick. 329.
A tender on a mortgage debt made according to the provisions of the statute to lay a foundation for a bill to redeem, if not accepted, shall not prevent the foreclosure of the right of redemption, unless a suit thereon be commenced within one year after the tender is made. Revised Stat. r 107 § .7.