Schmittdiel v. Moore

• Decision Date: 23 May 1899
• Citation: 120 Mich. 199,79 N.W. 195
• Court: Michigan Supreme Court
• Parties: SCHMITTDIEL v. MOORE ET AL.

79 N.W. 195

120 Mich. 199

SCHMITTDIEL v. MOORE ET AL.

Supreme Court of Michigan

May 23, 1899

Error to circuit court, Wayne county; Joseph W. Donovan, Judge.

Action by John S. Schmittdiel, trustee, against Joseph B. Moore trustee, and others, for conversion. There was a judgment for plaintiff, and defendants bring error. Affirmed.

W. F. Atkinson and John Miner, for appellants.

George W. Radford and T. E. Tarsney, for appellee.

MONTGOMERY J.

This case has once been considered in this court. A report of the former hearing will be found in 101 Mich. 590, 60 N.W. 279. The facts of the case as they appeared on that hearing are fully set out, and we need not repeat them here. It will suffice to refer to such additional facts as were made to appear on the second trial. On the former hearing the case was reversed for the reason that the testimony failed to show that the tender made on behalf of plaintiff was absolute, and that it was made a condition to the acceptance of such tender that the first mortgagee assign to plaintiff not only the first mortgage, but certain notes containing the indorsement of John Hurley. On the second trial the testimony tended to show, and the jury found, that a tender was made, accompanied by a demand on an assignment of the mortgage only. This occurred after the first tender was made, and there is in the record abundant testimony to support the finding of the jury in that regard.

It is contended by defendants' counsel that the effect of the tender, accompanied by a demand of an assignment of the mortgage, did not operate to discharge the first mortgage and that the plaintiff's remedy for the refusal to accept the tender is equitable, and not legal. This precise question was not considered in our former opinion, and, so far as the record discloses, has never been decided in this state. The decisions are abundant that a tender of absolute payment discharges the lien of the mortgage. It is equally clear that a subsequent incumbrancer may tender payment. Sager v. Tupper, 35 Mich. 134; Proctor v Robinson, Id. 294; Lucking v. Wesson, 25 Mich. 443. But does a tender of payment, accompanied by a demand for an assignment, extinguish the mortgage? It is not the purpose of such a tender. The purpose on the part of the subsequent incumbrancer is to keep the lien alive, and to enforce it against the general owner. In Proctor v Robinson, 35 Mich. 284, the question was whether Robinson had discharged the incumbrance by a tender. The court said: "Before yielding to a defense of such a nature, and causing such a result, the court is bound to insist on a clear proof, and such proof has not been given. On the contrary, the whole facts lead to an opinion that there was no tender, in the sense of an offer made and understood as one to cancel the lien, and the theory of the defense requires the establishment of a tender of that kind. The offer of money by a subsequent incumbrancer, for the purpose of acquiring a prior incumbrance, or as a step preparatory to a bill to redeem, is quite different in its spirit and equitable bearings." In Frost v Bank, 70 N.Y. 553, which was the case of refusal by the first mortgagee of a tender by a subsequent mortgagee, with a demand for an assignment, such as made in this case, the court say: "If one desires to make a tender which shall destroy the lien of an incumbrance, and have, so far as concerns it, the effect of payment, he must make an absolute tender of payment, which, if received, will discharge the debt and the incumbrance. Here no such tender was made. What the plaintiff did was a tender in the exercise of his...