Concurring opinion of COMSTOCK, C. J. come obsolete. Even the word "forfeiture," still so often used, is no longer, in reference to this subject, the expression of any principle, as it once was. There is now no forfeiture of a mortgaged estate; the mortgagor's rights may be foreclosed by a sentence in the courts, or by a sale had in the manner prescribed by the statute law, if he has, himself, in the contract, given authority thus to sell; but, until foreclosure, his estate, the day after a default, is exactly what it was the day before. Controversies like the present would cease to arise, if the mere terms of the law were no longer confounded with its principles. The proposition, that a tender of the money due on a mortgage, made at any time before a foreclosure, discharges the lien, is the logical result of premises which are admitted to be true. These are, that the mortgagor has the same right, after as before a default, to pay his debt, and so clear his estate from the incumbrance; and that payment being actually made, the lien thereby becomes extinct. We have, then, only to apply an admitted principle in the law of tender, which is, that tender is equivalent to payment as to all things which are incidental and accessorial to the debt. The creditor, by refusing to accept, does not forfeit his right to the very thing tendered, but he does lose all collateral benefits or securities. (3 Johns. Cas. 243; 12 Johns. 274; 6 Wend. 22; 6 Cow. 728; Coggs v. Barnard, 2 Lord Raym. 916.) Thus, after the tender of a money debt, followed by payment into court, interest and costs cannot be recovered. The instantaneous effect is, to discharge any collateral lien, as a pledge of goods or the right of distress. It is not denied, that the same principle applies to a mortgage, if the tender be made at the very time when the money is due; if the creditor refuses, he justly loses his security. It is impossible to hold otherwise, although the tender be made afterwards, unless we also say, that the mortgage, which * 367 ] Dissenting opinion of WELLES, J. was before a mere security, becomes a freehold estate by reason of the default. That this is not true, has been sufficiently shown. It is said, that mortgagees will be put to great inconvenience, if, at any period, however distant from the time of maturity, they must know the amount of the debt and accept a tender, on peril of losing their security. The force of this argument is not perceived; as a tender must be unqualified by any conditions, there can never be any good reason for not accepting the sum offered, whether it be offered when it is due or afterwards. By accepting the tender, the creditor loses nothing and incurs no hazard; if the sum be insufficient, the security remains; it is only by refusing, that any inconvenience can possibly arise. But, whatever may be the consequences of refusal, the creditor may justly charge them to his own folly. The judgment of the supreme court must be reversed, and a new trial granted. WELLES, J. (Dissenting.)-The only question involved in the case is, whether the tender made by the defendant, Cady, under the circumstances, was effectual to extricate the premises in question from the lien created by the mortgage of Blunt to Miller. This tender was made after the day provided in the bond and mortgage for the payment of the money, which is called the law-day. If the sum tendered was sufficient in amount, and was made to the proper person, the question is reduced to the single point, whether the lien of a mortgage is, ipso facto, discharged by a tender of the amount due, made after the law-day; because, if it is, there is no necessity, in an answer setting it up, of the allegation of tout temps prist, or of any evidence to show that the tender has been kept good, neither of which is contained in the present case; but the defendant *relies solely upon the fact of a * 368 ] tender and refusal as equivalent to payment, for the purpose of extinguishing the lien of the mortgage. Dissenting opinion of WELLES, J. If a tender has the effect, in any case, to release the lien, it produces that effect the moment it is made, whether accepted or refused. If accepted, it is a payment; if refused, it is the folly of the holder of the mortgage, and the lien is gone and cannot be restored, by his subsequent change of mind and offer to receive the money tendered. This must be so; otherwise, the tender would not discharge the lien. It is quite different from the case of an ordinary plea of tender at common law, for the purpose of stopping interest and preventing costs, in an action for money due on contract, in which the plea must contain the averment of touts temps prist, and where a replication of a subsequent demand, before suit, of the money tendered, and refusal by the defendant, would be a good answer to the plea. In the case of a mortgage, which is collateral to the debt, it is agreed, that a tender may be made by the person owning the equity of redemption, which will extinguish the lien of the mortgage for ever, without affecting the debt. The primary object of a foreclosure-suit is to enforce the lien, and if that is met by a sufficient tender, the cause of action is gone and cannot be restored, by a subsequent demand and refusal. It is important, therefore, to consider whether the tender, in the present case, being made after the law-day, if good in other respects, had the effect to discharge the lien of the mortgage. In the case of Jackson v. Crafts (18 Johns. 110), it was decided, that the tender, in that case, which had been made long after the time appointed in the mortgage, had the effect to discharge the land from the lien of the mortgage. The question of the time when the tender was made, does not appear to have been raised; nor does the distinction between a tender made on the day, and one made afterwards, appear to have been considered by the court. The authorities cited and relied upon by Judge WOODWORTH, who delivered the opinion of the court, are, Bacon's Abridgement, title Tender (F.); Coke on Little Dissenting opinion of WELLES, J. ton, 209 b, § 338; Id. 207 a, § 335; and 20 Viner, * 369] title Tender, N. § 4. These authorities establish the principle, that a tender at the time and place, according to the condition of the mortgage, will discharge the lien. They prove nothing more, as is clearly shown by the Chancellor, in Merritt v. Lambert (7 Paige 344), and by Senator JOHNSON, in Post v. Arnot (2 Denio 344-357). The passages referred to in Coke on Littleton will be found in Thomas' edition, vol. 2, pages 58 and 60. In Merritt v. Lambert (supra), the Chancellor says: "The correct principle, as intended to be laid down by Littleton and Coke, is, that if there is a tender of the mortgage-money, at the time and in the manner prescribed in the condition of the mortgage, and the mortgagee refuses to receive it, the condition is complied with; and the estate reverts back to the mortgagor, by the express terms of the instrument. So that if the mortgagee is so unwise as to refuse his money, when it is tendered at the time and place and in the manner prescribed in the instrument itself, he necessarily must lose his security upon the land, which was merely collateral to the debt; although the mortgagor may still be liable for the money, where there is an existing indebtedness. But if the money is not paid by the day, the condition on which the land was to revert to the mortgagor has not been complied with; and the interest of the mortgagor in the land is then reduced to a mere equity of redemption, and an actual payment, not a mere tender, then becomes necessary, to discharge the legal and equitable lien of the mortgage upon the land." In the Farmers' Fire Insurance and Loan Company v. Edwards, in the court of errors (26 Wend. 541--54), VERPLANCK, Senator, says, that the ancient common-law doctrine, as thus stated by the Chancellor in Merritt v. Lambert, is undoubtedly stated with precision. They both agree that the authorities cited by Judge WOODWORTH, in Jackson v. Crafts, were inaccurately applied to a case of payment after the day.. Dissenting opinion of WELLES, J. The next case, in order of time, in our own courts, to that of Jackson v. Crafts, upon this question-if; indeed, that case can *fairly be regarded an authority [ * 370 upon the question-is Merritt v. Lambert (supra), where the Chancellor held the doctrine contained in the above extract from his opinion to be still the law in this state. Afterwards, came the case of Edwards v. The Farmers' Fire Insurance and Loan Company, (21 Wend. 467), which was an action of ejectment tried at the Erie circuit, in July 1837. The action was brought to recover certain premises which had been mortgaged by the plaintiff to the defendants as security for a loan, and which had been bought in by the defendants, at a master's sale, in pursuance of a decree of foreclosure of such mortgage, and duly conveyed to them by the master; and, subsequently, the plaintiff had tendered to the defendants the full amount of the moneys due upon the mortgage and the costs of foreclosure, which the defendants refused to receive, whereby the plaintiff contended, under the circumstances of the case, that he had become entitled to be restored to the possession of the premises. The plaintiff recovered a verdict, which the defendants moved to set aside and for a new trial; the motion was denied by the supreme court, in July 1839. It is important to state, that the act incorporating the defendants (Laws of 1822, c. 50, p. 42, &c.), the second section of which authorizes the company to loan money. on bond and mortgage, provides in the third section, among other things, "that in all cases where the said corporation have become the purchasers of any real estate on which they have made loans, the mortgagors shall have the right of redemption of any such property, on payment of the principal and interest and costs, so long as it remains in the hands of the corporation unsold." The opinion of the court was delivered by Justice COWEN, who, after disposing of some preliminary ques |