Thomas v. Seattle Brewing & Malting Co.

• Decision Date: 27 February 1908
• Citation: 48 Wash. 560,94 P. 116
• Court: Washington Supreme Court
• Parties: THOMAS v. SEATTLE BREWING & MALTING CO. et al.

94 P. 116

48 Wash. 560

THOMAS v. SEATTLE BREWING & MALTING CO. et al.

Supreme Court of Washington

February 27, 1908

Appeal from Superior Court, Snohomish County; W. W. Black, Judge.

Action of claim and delivery by Calvin Thomas against the Seattle Brewing and Malting Company, a corporation, and another. From a judgment for plaintiff, defendants appeal. Affirmed.

Root Mount, and Fullerton, JJ., dissenting.

William A. Greene, and Gordon D. Eveland, for appellants.

E. C Dailey, G. C. Israel, and Frank C. Owings, for respondent.

RUDKIN, J.

On the 5th day of March, 1904, W. M. Hart mortgaged certain personal property to the Seattle Brewing & Malting Company, to secure the payment of the sum of $1,000, payable in installments of $50 per month. Hart made default in his payments, and the mortgagee proceeded to foreclose its mortgage by notice and sale under section 5870 et seq., Ballinger's Ann. Codes &amp St. The date of sale was fixed for January 8, 1907. On the day preceding Hart transferred the mortgaged property, or at least the greater portion of it, to the plaintiff in this action. On the 8th day of January, and prior to the sale, the full amount of the mortgage debt, with interest and accrued costs, was tendered to the sheriff and mortgagee, but the tender was refused, and the property was thereafter sold and bid in by the defendant brewing company. This action was thereupon brought in claim and delivery against the sheriff and the purchaser for a return of the property and damages or for judgment for the value in case a return could not be had. From a judgment in favor of the plaintiff, the defendants have appealed; and the following questions are presented for the consideration of this court: (1) Does a tender of the amount due under a chattel mortgage before sale discharge the mortgage lien? (2) If so, in an action of claim and delivery to recover the mortgaged property, must the tender be kept good? (3) Was a sufficient tender shown in this case?

'At common law a tender of the mortgage debt on the law day satisfies the condition of the mortgage, and discharges the property from the incumbrance as effectually as payment; but the debt remains and its payment may be enforced by an action at law against the mortgagor. And, in pleading a tender on the law day in discharge of the condition of the mortgage, the mortgagor is not required to allege continued readiness to pay, nor need he bring the money into court. The tender when made discharges the incumbrance, not conditionally, but absolutely and forever.' Helphrey v. Strobach, 13 Wash. 128, 42 P. 537; Mitchell v. Roberts (C. C.) 17 F. 776; Jones on Mortgages (6th Ed.) § 891; Kortwright v. Cady, 21 N.Y. 343, 78 Am. Dec. 145; Moore v. Norman, 43 Minn 428, 45 N.W. 857, 9 L. R. A. 55, 19 Am. St. Rep. 247. This was the established rule at common law when tender was made on the law day, and also in case of pledges of personal property where title did not pass until after sale. In the states where both real and chattel mortgages have been converted into mere liens, it has very generally been held that a tender at any time before foreclosure and sale has the same effect as a tender on law day at common law, and there would seem to be no sound reason why the rule should be otherwise. Bartel v. Lope, 6 Or. 321; Moynahan v. Moore, 9 Mich. 9, 77 Am. Dec. 468; Flanders v. Chamberlin, 24 Mich. 306; Lochborough v. McNevin, 74 Cal. 250, 14 P. 369, 15 P. 773, 5 Am. St. Rep. 435. Nor is it necessary that the tender should be kept good or the money brought into court. Moore v. Norman, supra; Flanders v. Chamberlin, supra; Mitchell v. Roberts, supra. In ...