Columbian Building Ass'n of East Baltimore, No. 4 v. Crump

Alvey, J., delivered the opinion of the Court. This appeal is from the order of the 16th of April, 1874, in so far as it directed the ex pa,rte decree, passed in the case of the appellants against John J. Butler, to be entered satisfied. That decree was for the sale of the mortgaged property, on default by the mortgagor, under Art. 4, sec. 782, and succeeding sections, of the Public Local Laws of the State. The decree bears date the 19th of January, 1874.

The appellees in this case are the assignees of the equity of redemption; and by their bill of complaint, filed on the 2nd of September, 1873, they sought redemption of the mortgaged property, from the operation of the mortgage, by alleging tender of the amount due thereon, by their authorized agent, and refusal by the appellants. In this bill, while it is alleged that the sum of $748.50, was duly tendered to the appellants on the 19th of August, 1873, in legal tender currency, as the amount then due on the mortgage, there is failure to allege that the money was still ready to be paid, with proffer to bring the same into Court. The amount, however, was brought into Court, under order of the 19th of February, 1874. The amount originally tendered having been brought into Court, the parties, by agreement of the 9th of April, 1874, agreed that the two pending proceedings should be consolidated, and that the question as to the claim for interest and costs should be .submitted to1 the Court for adjudication, on certain evidence referred to in the agreement, being certain affidavits and letters, in reference to the alleged tender, and the subsequent demand of the money by the appellants, and the appellees’ inability then ¹⁹⁴ to pay.

It was on this submission that the order appealed from was passed. ' It appears from the evidence referred to, that, on the 20th of December, 1873, the appellants waived all objection to receiving the amount previous^ tendered by the appellees, as the amount due on the mortgage, and so informed the agent and attorney of the latter, and requested payment of the money. The appellees were not then ready to pay, but requested a short time within which to raise the money; to which the appellants replied that they would receive the money on account, but would no longer consider themselves bound by the previous tender. Now the principle is perfectly plain, that when the mortgage money really due is actually and properly tendered by a person having a right to make the tender, the rnort.gagee is bound to accept it; and if there be a refusal to receive the money due on the mortgage upon the terms the dfebtor has a right to enforce, interest from the time of the tender will cease to run. But then the mortgagor, or party making the tender, must keep the money continually ready and make no profit of it.- In the case of Gyles vs. Hall, 2 P. Wms., 378, a bill was filed to compel a re-assignment of a mortgage, and to stop the payment of interest from the 25th of September, 1722, there having been then a tender made of the mortgage debt and all interest due to that