(dissenting). I concur in the opinion of the court in this case, in so far as it sustains the mortgagor’s right to redeem by paying the sum bid at the foreclosure sale and the percentage and costs provided by statute; but I dissent from that portion of the decision which .holds that the tender made by the mortgagor was insufficient and therefore unavailable.
The ease of Noyes v. Wyokoff, 114 N. Y. 208, is relied upon to sustain the decision of the court. The court of appeals of New York said: “The tender is best tested by the effect its acceptance would have had upon the defendant, and it needs no argument to show that, had it been accepted, it must have been upon the terms offered, viz., in payment of the debt and extinguishment of the lien of the chattel mortgage, for the words used have no other meaning. This was a condition which plaintiff had no right to attach to the acceptance. He could not say, ‘I offer you this money in payment of your debt, but if you take it you must extinguish your lien upon the iron ore.’ Whether its acceptance would extinguish the mortgage was a question which, the defendant had a right to litigate, and to demand that, in accepting the money offered, defendant should create an estoppel, which would prevent him from litigating the amount due on the mortgage, was a condition which the plaintiff could not attach to the offer, and which, being coupled with it, made, the tender bad.” That was a ease where the defendant held a chattel mortgage on a quantity of iron ore lying upon the farm owned by the mortgagor, to secure a debt or rather several debts of uncertain amounts. The mortgagor sold the farm to a third party, afterwards plaintiff in this suit, subject to existing liens. The plaintiff-purchaser tendered the defendant-mortgagee $3,000 in payment and extinguishment of the lien of the mortgage, and defendant refused to accept it. It was conceded, in an action for the conversion of the ore (which had in fact been appropriated by the defendant), that the tender was .sufficient in amount, but the refusal to accept it was because of insufficiency in form. Held, that the tender was insufficient, because it stipulated for an extinguishment of the lien, as well as for the satisfaction of the debt, which question of lien the plaintiff had a right to litigate, and thus the tender was coupled with .a condition. The reasoning of the court would be applicable to every case of ordinary tender in payment of debt, for in every case the creditor has a right to litigate the question of amount, unless he considers that the amount of the tender is correct; and yet, if he refuses 'to accept a tender of the proper amount, he will lose in the question of tender, and will be compelled to take the tender and pay costs not covered by the tender. The distinction attempted to be drawn between rules governing the tender of the debt, and the tender of the amount to secure which the mortgage lien exists, involves a nicety which I feel incapable of exactly comprehending. After all, it may be that the court in that case only meant to hold that, notwithstanding the admission of the correctness of the amount of the mortgage lien being fully covered by the tender during the progress of the trial, yet, since the amount of the lien was undetermined when the tender was made, the purchaser had the right to litigate, and that therefore the tender was not good.
In Halpin v. Phenix Ins. Company, 118 N.Y. 175, a later case, the same court said: “It is claimed that the tender was not effectual to entitle plaintiff to the judgment, for the reason that it was conditioned on the execution by defendant of a satisfaction of the mortgage. The cases cited by .the learned counsel for the appellant do not sustain this claim. The distinction must be observed between cases in which terms are added not embraced in the contract or which the acceptance of the tender would cause the creditor to admit, and those [cases] in which the conditions are such as the debtor, on payment of the debt, has a right to insist upon and to which the creditor has no right to object.” Such undoubtedly is the true rule.
In this state, when a mortgage debt is paid, it carries with it the satisfaction of the mortgage lien; and hence, by statute, the mortgagee, at the demand of the mortgagor, is required to indorse in writing, signed by himself or his duly authorized agent, on the margin of the record of the mortgage, a satisfaction of the same in full, and a neglect to do so subjects him to a penalty. The execution of such a quittance, receipt or release was all that was contained in the alleged condition aceom - panying the tender in the case at bar, and the condition, of ■course, was no more than the mortgagee was bound by law to perform in any event. The statutes referred to are §§ 5096, 5097 and 5098, Sand. & H. Dig.
The controversy, stripped of all mere technical coatings, is whether or not, in order to redeem his land from the foreclosure sale to the purchaser, the mortgagor should be required to pay the amount of the bid, the costs and statutory percentage, or the amount of the mortgage debt, costs and interest. The purchaser contended that he should pay the latter sum, and because he did not tender that sum his tender was refused, and for no other reason. This court, has decided that his tender was for the proper amount, and it is inconsistent to hold the tender insufficient, I think. So far as the mere form of the tender is concerned, it is not perceived that the case of a tender made to the mortgagee as purchaser is different, in effect, from that of a tender,to a third party as purchaser. I think the tender should have been held good.