In those states where mortgages are regarded as a mere lien or security for a debt, and the title as remaining in the mortgagor until divested by foreclosure, the rule generally adopted is, that a tender at any time during the continuance of the right of redemption is the equivalent of payment as to things incidental and accessorial to the debt, and extinguishes the lien of the mortgage, though the tender is not kept good. Kortright v. Cady, 21 N. Y. 343, 78 Am. Dec. 145, though not the first, may be regarded as the leading 169 case holding this view. A qualified and more conservative rule is adopted in those states where a mortgage is considered as immediately transferring the legal title to the mortgagee, subject to be defeated by the payment of the debt at the time and in the manner specified in the mortgage. In a few, the courts hold that an unaccepted tender after default will not, at law, reinvest the mortgagor with the title, and that his only remedy is in equity to redeem; but, in the others, the common-law rule, that after condition broken the title vests absolutely in the mortgagee, has not been applied so strictly, where the mortgage is of personal property, as to hold that a tender after default, when kept good, cannot, under any circumstances, operate the destruction of the lien.

There are dicta in some of our early cases, and probably the weight of authority is, that a tender after default, in order to effect the extinguishment of the title of the mortga gee, must be made before he has rightfully and peaceably taken possession for the purposes of foreclosure. This question, however, has never been decided in this state, though directly presented in Frank v. Pickens, 69 Ala. 369; the disposition of that case not calling for its decision. It is not presented in this case, the replications averring that the tender was made before the mortgagees acquired possession. We shall, therefore, leave it, as it has heretofore been, undecided.

It may be conceded that, by the strict rule of the common law, a tender after failure to perform the condition of the mortgage will not, at law, destroy the title, which has become absolute in the mortgagee by the forfeiture. In equity, however, a mortgage being regarded as incident to, and security for, the debt, the rigor and harshness of the commonlaw rule has been greatly relieved by holding that the mortgagor has the right to redeem, if not barred by unreasonable delay, by payment, or tendering full payment at any time

before foreclosure. But courts of equity will not enforce the equity of redemption so as to deprive the mortgagee of his security by discharging the lien of the mortgage; its enforcement is dependent upon payment of the debt by the mortgagor, or by a sale of the property. In many of the states, courts of law, while not taking cognizance of the equity of redemption for the purpose of enforcing the right to redeem, but acting upon and applying equitable principles, have extended to a tender after default the effect of a tender made at the time and in the manner specified in the mortgage, modified so as to prevent the mortgagee's deprivation 170 of his security without satisfaction of the debt. In Frank v. Pickens, 69 Ala. 369, it was expressly held, that a tender of payment of the mortgage debt cannot operate to extinguish the title of the mortgagee, unless the money tendered is kept ready to be paid to the mortgagee whenever he may manifest a willingness to receive it; and if the benefit of the tender is claimed in court, the money must be placed in the custody of the court, so that, if the tender be adjudged good, it may be awarded to the mortgagee-otherwise the mortgagor is regarded as having abandoned the tender. Recognizing the mortgagor's right of redemption, and observing the principles upon which courts of equity enforce it, the current of the later decisions is, that an unconditional tender after default, of the full amount due on the mortgage, if kept good, and the money brought into court, discharges the lien of the mortgage. We cite a few of the cases: Crain v. McGoon, 86 Ill. 43; 29 Am. Rep. 37; Knox v. Williams, 24 Neb. 630; 8 Am. St. Rep. 220; Matthews v. Lindsay, 20 Fla. 962; Musgat v. Pompelly, 46 Wis. 660; Jones' Chattel Mortgages, sec. 635.

The effect of a plea of tender, accompanied by bringing the money into court, came incidentally before this court in the case of Foster v. Napier, 74 Ala. 393. In that case the suit was founded on a bond executed by Foster in the institution of a statutory action for the recovery of mules and a wagon. The record of the proceedings, pleadings and judg ment in the action of detinue brought by Foster against Napier was read in evidence. In the action of detinue, Foster claimed the property under two mortgages, executed by Napier. A special plea was filed by Napier, averring payment of the mortgages, except one hundred and seventy-five dollars, which, the plea alleged, had been tendered to the mortgagee before action brought; and the money was brought into

court. It is said: "The issues being thus formed, if the defendant proved the truth of his second plea, he was entitled to a verdict; but the money tendered would become the property of the plaintiff. In such case, the issue is confined to the debt, or its payment, for which the mortgage was given as security. . . . . The defense set up in that suit, and the verdict and judgment thereon, taking into the account the pleadings and charge of the court on the trial, settled conclusively that Napier did not, at the commencement of that suit, owe Foster exceeding one hundred and seventy-five dollars on the debts secured by the mortgages, and that before suit was brought he had tendered that sum, and had it in court for Foster." The 171 principle of the decision is that a tender before suit brought by the mortgagee to recover possession, when the money is brought into court, and the truth of the plea of tender is established, is tantamount to, and has the same effect as, actual payment, in extinguishment of the lien and title of the mortgagee-in fact, it was treated as a payment.

Section 1870 of the code declares: "The payment of a mortgage debt, whether the mortgage is of real or personal property, divests the title passing by the mortgage." Under section 2685, a plea of tender of money must be accompanied by a delivery of the money to the clerk of the court. If the money is deposited in court, and the truth of the plea established, the effect is to stop the running of interest from the time of tender. The money became the property of plaintiff, by relation, at the time when the tender was made. That such is the intention and effect of the statute is manifest from the further provision, that if the tender be of personal property, the plea must aver readiness to deliver it to the plaintiff, and judgment for the defendant upon the plea vests the title to the thing tendered in the plaintiff, subject to any claim the defendant may have for his trouble in keeping it. A tender so made, and kept good, and the money brought into court, so as to be the equivalent of payment, if the tender be adjudged sufficient, comes within the spirit, equity and policy of section 1870 of the code. On the foregoing principles, and in line with the current of the decisions of those states where mortgages are governed by the principles of the common law, we adopt as a safe and wholesome rule-conserving the ends of justice, protecting the mortgagor against oppression or undue advantage, and preventing injustice to AM. ST. REP., VOL. XXXVL-13

the mortgagee-that a tender of full payment of the mortgage debt after default, and before the mortgagee has taken or demanded possession for the purpose of foreclosure, if kept good, and the money brought into court, operates to discharge the lien of the mortgage and extinguish the title of the mortgagee.

True, only the first replication avers that the money is brought into court; but the omission of this averment in the others is not assigned as a ground of demurrer. While we have left undecided whether a tender after the mortgagee has taken or demanded possession will be effectual to discharge the lien of the mortgage, we hold that the possession acquired after the tender is made does not affect its operation. The replications not being obnoxious to any of the objections assigned as grounds of demurrer, the demurrers were properly sustained.

Affirmed.

172 Response to application for rehearing.

Per CURIAM. The court is of the opinion that the replications of the plaintiff to defendant's special pleas are not free from fault. But the demurrers to the replications were properly overruled, because, as framed, they were not di rected against the objectionable portions of the replications. We, therefore, adhere to the conclusion reached in the opinion, and overrule the application for rehearing.

MORTGAGES-EFFECT OF TENDER OF Mortgage DEBT.-A tender of the money due on a mortgage at any time before foreclosure discharges the lien of the mortgage, though made after the law day, and not kept good: Kortright v. Cady, 21 N. Y. 343; 78 Am. Dec. 145, and extended note; Nelson ▼. Loder, 132 N. Y. 288; Contra: Perre v. Castro, 14 Cal. 519; 76 Am. Dec. 444, and note. See also Werner v. Tuch, 127 N. Y. 217; 24 Am. St. Rep. 443, and note; and the note to Renard v. Clink, 30 Am. St. Rep. 461.

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1

STATE V. HARRUB.

[95 ALABAMA, 176.]

OYSTERS AND OYSTER-BEDS-STATE PROPERTY RIGHTS IN AND CONTROL OF A state has an absolute property right in its oysters and oyster-beds, and, through its legislature, has the absolute right to dispose of them to its people, and may adopt all precautions and regulations deemed desirable or necessary for the preservation and increased production of ita oysters so far as this may be done without obstructing the paramount right of navigation. INTERSTATE AND DOMESTIC COMMERCE-RIGHT TO REGULATE.-To constitute interstate commerce there must be traffic and interstate intercourse between different states, and the power vested in Congress to regulate interstate commerce does not authorize it to regulate the domestic commerce between the citizens of the same state or different parts thereof. This latter power belongs to the several states alone, exclusive of the power of Congress. OYSTERS-STATE CONTROL OVER.-A state, through its legislature, may confine the taking and use of its oysters to its own citizens, and regulate their shipment and disposition within its borders for the use of such citizens so as to prevent such oysters from becoming an article of interstate commerce.

OYSTERS-STATE CONTROL OVER.-A state has the right by statute to license its own citizens to catch and take the oysters within its borders, and to deny to citizens of another state the right to take and transport them, and to absolutely prohibit their shipment beyond its borders, and to regulate their sale therein, not imposing any conditions, burdens, or restrictions upon the oyster as a commodity after it has entered another state or after it is legally delivered in the home state for exportation by any of the means by which interstate commerce is effected.

OTSTERS-STATE CONTROL Over-When BECOME ARTICLE OF INTERSTATE COMMERCE.-A state has the right by statute to limit the exportation of oysters taken within its borders to such as may have been sheЛed before shipment, and when the statute so provides the oyster cannot become an article of interstate commerce while in the shell.

STATUTES SUBJECT EXPRESSED IN TITLE.-A statute is not open to the objection that it contains subjects not "clearly" expressed in its title when such subjects are all "referable and cognate" to the subjects expressed in such title.

W. L. Martin, Attorney-General, and Gaylord B. Clark, for the state, appellant.

G. L. and H. T. Smith, and M. D. Wickersham, for the appellees.

180 COLEMAN, J. The defendants were arrested for a violation of the Act of February 18, 1891, pp. 1072-1084, entitled 'An act to regulate the planting and taking of oysters in the waters of this state." Upon habeas corpus proceedings the defendants were discharged, the court holding that the act of