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CHAP. XXXVIII. And where a mortgagee joined with the residuary legatee under the mortgagor's will in an administration action, and, subsequently to the commencement of the proceedings, the executor gave to the mortgagee six months' notice to redeem, it was held that the latter was bound to accept, in satisfaction of his claims, his principal with interest up to the time of payment, and costs, though such payment was made before the expiration of the notice (i).

Consent to sale.

Proof of debt in action.

Entry into possession.

Whether mortgagee enforcing security is entitled to

interest pay

able in ad

vance.

Mortgagor must tender amount due.

Consent to a sale in an administration suit is equivalent to six months' notice ().

A mortgagee who comes in and proves his debt in a cause is bound to take his money without notice, and to join in the conveyance (1).

In a recent case, a mortgagor absconded before the time fixed by the mortgage deed for payment, and the mortgagee thereupon entered into possession of the premises; it was argued on behalf of the mortgagee that the entry was not the case of taking steps to enforce the security, but merely for the protection of the property; but it was held that such entry was a taking proceedings to enforce the security, so as to deprive the mortgagee of his right to six months' interest in lieu of notice (m).

Where, on a mortgage of a ship, it was stipulated that the interest should be payable half-yearly in advance, and the mortgagee sold the ship before one of the days upon which the interest became payable, but the purchase was completed two days after that day, it was held that the mortgagee was not entitled to the next half-year's interest, but only to interest up to the day of completion and actual payment (n).

v.-Tender of Mortgage Moneys.-A mortgagor who has given notice of his intention to pay off the mortgage on a certain day, must, in order to exclude the right of the mortgagee to a further notice, or interest in lieu thereof, make on the appointed day a strict tender of the moneys due, or the Court cannot stop the interest from running, though the circumstances of the case

(i) Re Alcock, Prescott v. Phipps, 23

Ch. D. 372, C. A.

(k) Day v. Day, 31 Beav. 270.

(1) Matson v. Swift, 5 Jur. 645.

(m) Bovill v. Endle, (1896) 1 Ch. 648. (n) Banner v. Berridge, 18 Ch. D. 254, 278.

may be such that the Court might wish to do so (o). On a CHAP. XXXVIII. proper tender being made, interest stops (p), and also all subse

quent costs (q).

To constitute a good tender, it must be made by the proper Requisites of person, to the proper person, at a proper time and place, in tender. proper currency, and in a proper manner.

be made.

A valid tender may be made by any person entitled to By whom a redeem, but not by a stranger, for as against him the mort- tender may gagee's estate is absolute (). It has been seen that guardians and committees under the sanction of the Court may redeem (s), and accordingly they may make a good tender of mortgage moneys on behalf of infants and lunatics, and it has been said by Lord Coke, that if the heir be an idiot, of what age soever, any man may make the tender for him in respect of his absolute disability, and the law in this case is grounded on charity (†). A solicitor or other agent may make a good tender on behalf of his client or principal (u).

A tender by the agent of a debtor of the whole sum demanded by the creditor is good, although the agent is only authorized by the debtor to tender a smaller sum, and offers the rest at his

own risk (x).

Tender by

solicitor or agent.

If the condition was for payment by the mortgagor and Joint tender. another person (y), payment by that person alone, after the death of the mortgagor, was good; but not during his life.

At law the tender must formerly have been made only to the To whom persons named in the condition (≈).

tender must be made.

In equity the tender may be made to the persons entitled to receive the money and reconvey the estate, and, if the legal and partial beneficial interest is united in one of such persons, he cannot demand payment to himself on his separate receipt (a). Tender may be made to the executors of a deceased mort- Tender to gagee, who may give a valid receipt for the money before executors. probate (b).

(0) Sentance v. Porter, 7 Ha. 426. See Williams v. Sorrell, 4 Ves. 389.

(p) Bishop v. Church, 2 Ves. Sen. 370, 372. See Garforth v. Bradley, 2 Ves. Sen. 675, 678.

(q) Lord Midleton v. Eliot, 15 Sim. 531; Woodman v. Higgins, 14 Jur. 846.

(r) Lit. s. 334; Watkyns v. Ashwicke, Cro. Eliz. 132. See Lomax v. Bird, 1 Vern. 182; James v. Biou, 3 Swanst. 234.

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CHAP. XXXVIII.

Tender to trustees.

Tender to one of several joint creditors.

Tender to solicitors, &c.

Statutory provision as

Notwithstanding the statutory powers of giving receipts (c), the receipt of trustees will not discharge the mortgaged estate, where the security is for a re-transfer of stock, and only cash is paid, until the trustees have invested it in an authorized investment (d).

Payment must be made to all the trustees, or to their joint account in a bank, notwithstanding sect. 56 of the Conveyancing Act, 1881 (e).

A valid tender at law might be made to one of several joint creditors (ƒ), but in equity the receipt of the creditor would not discharge the debtor from claims by the other creditors (g). So, where a mortgage is made to several persons jointly, they are in equity tenants in common of the mortgage money, and, accordingly, the receipt of the representatives of such of them as may be dead is necessary to discharge the debtor (h). It was therefore formerly usual to insert in mortgages to trustees, and in other cases where the benefit of the mortgage debt and of the security was intended to survive, a joint account clause providing that the receipt of the survivor should be a good discharge for the debt; but the insertion of such a clause is now rendered generally unnecessary by statute (¿).

Independently of statutory enactment, a good tender cannot generally be made to the solicitor or other agent of the creditor (k).

A solicitor may, however, have an express authority to receive the mortgage moneys. So, where a mortgagee's action was compromised on the terms that the amount agreed upon should be paid out of Court to the plaintiff's solicitor, it was held that the solicitor's receipt discharged the mortgagor and his estate from the debt (1). So, also, such authority may be inferred from the circumstances of the case as tending to show that the mortgagee treated his solicitor as agent to receive the mortgage moneys (m).

A mortgagor may now make good tender and payment to

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solicitor.

the mortgagee's solicitor on production by the latter of the deed CHAP. XXXVIII. of reconveyance with a receipt in the body thereof, or indorsed, to tender to executed, and signed by the mortgagee (n). And trustees may now, by the Trustee Act, 1893 (o), appoint a solicitor to be their agent to receive such payment.

A tender made to an agent or servant of the creditor duly Tender to authorized to receive payment is a valid tender to the creditor agent. himself (p). But as regards general agents, tender to them is, generally speaking, not sufficient, inasmuch as, in the absence of express authority, the receipt of money is not within the scope of an agent's employment (9). But the authority to receive payment may be inferred from the circumstances of the case (r).

If, however, an agent accepts tender and payment on behalf Ratification of his principal without authority, the latter may expressly of tender to ratify or by his subsequent conduct show that he has confirmed

or acquiesced in the transaction, and in such case the debtor will

be discharged (s).

agent.

If time and place are appointed for payment of the money, Time and tender must be made accordingly.

place of

tender.

A tender by the mortgagor of the money on the appointed Tender on day at any convenient time at which the money might be appointed day. counted before sunset is good at law; but if both the parties meet together at any time of that day, and the mortgagor makes a tender to the mortgagee, who refuses it, the mortgagor need not make a tender again before the last instant of the day (t).

hour.

If a particular hour be appointed, the mortgagor may attend Tender at for the purpose of making his tender at any time before the appointed commencement of the next hour, inasmuch as an hour in law is considered to be a twenty-fourth aliquot part of the day. So, notice by a mortgagor of attendance for tender at three o'clock was held to be satisfied by his attendance at the appointed place shortly before four o'clock (u).

(n) 44 & 45 Vict. c. 41, s. 56, set out ante, p. 114.

(0) 56 & 57 Vict. c. 53, s. 17, subsect. (1), ante, p. 115.

(p) Goodland v. Blewith, 1 Camp. 477. See Anon., 1 Esp. 349; Hart v. Hawthorne, 42 L. T. 79.

(9) Burrough v. Cranston, 2 Ir. Eq. R. 203.

(r) Kirton v. Braithwaite, 1 M. & W.
310. See Finch v. Boning, 4 C. P. D.
143.

(s) See Duchess of Cleveland v. Dash-
wood's Executors, Freem. Ch. 249.
(t) Wade's Case, 5 Rep. 114 a. See
1 Selw. N. P., 13th ed. p. 187.

(u) Knox v. Simmonds, 4 Bro. C. C.
433.

CHAP. XXXVIII.

When tender may be made at any time.

Tender at appointed place.

Tender where

no place is appointed.

Time and place for

tender not

So, conversely, if an hour is fixed for payment, and the mortgagee does not appear to receive the money at the strike of the hour, the mortgagor must wait until the strike of the next hour, or there will be no sufficient attendance for tender (x).

If the mortgagee has demanded payment, or if the mortgagor is willing to pay six months' interest in lieu of notice, it seems clear that tender may be made, so as to stop further interest from running, at any time before the mortgagee has commenced his action by actually issuing his writ (y).

If a particular place be appointed by the mortgage deed for the payment of the money, the mortgagee must demand payment at that place (z), and he is entitled to receive payment there, so that the mortgagor will not generally be at liberty by his notice to appoint a different place for making his tender (a). But where money was charged on land in Ireland, the place fixed for payment being in Lincoln's Inn, was, upon the whole instrument, disregarded, and the owner of the money was held not to be entitled to have it sent to England free of charges and exchange (b).

If no place was appointed by the mortgage deed, then, unless the mortgagee makes no objection to the place appointed by the mortgagor's notice, the mortgagor must generally seek out the mortgagee and tender him the money personally, if within the realm, inasmuch as the money is a sum in gross collateral to the title, and therefore tender on the land would not be sufficient, as in the case of a rent issuing out of the land (c). But in such cases if attendance at the mortgagee's place of residence would intail undue hardship on the mortgagor, the appointment by the mortgagor of a different place, if within reasonable access of the mortgagee, will be good, if the mortgagee makes no objection to the place at the time of the notice.

Formerly, when the proviso for redemption was in the form of a condition for defeating the mortgagee's estate, it was now generally customary to specify in mortgage deeds the place and hour of appointed by mortgage payment of the mortgage money, so as to avoid the danger of his estate being defeated by a tender in his absence on the day

deed.

(x) Anon., 1 Coll. 273. See Bernard v. Norton, 10 L. T. N. S. 183.

(y) Briggs v. Calverley, 8 T. R. 629; Kirton v. Braithwaite, 1 M. & W. 810.

(z) Thorn v. City Rice Mills, 40 Ch. D. 357.

60.

(a) Gyles v. Hall, 2 P. Wms. 378.
(b) Lansdowne v. Lansdowne, 2 Bl.

(c) Co. Lit. 210 b.

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