Brown v. Lawton , 87 Me. 83 ( 1894 )

Haskell, J.

Bill to redeem, brought by the mortgagor and his grantee. Dismissed below on demurrer. Exceptions.

L It is .objected that the mortgagor is improperly made a plaintiff. Suppose he is. The other plaintiff may well prosecute the suit and have redemption allowed him. The improper or .unnecessary joinder of a party plaintiff will not defeat a suit in equity. The bill may be dismissed as to him. Too few plaintiffs may be fatal to an equity cause, never too many. All persons interested must be parties, either plaintiffs or defendants, and If, from over-caution, too many be joined, the mistake is harmless and may be corrected on final decree, as the judgment may be several and so framed as to work full and substantial justice. These remarks are elementary and need no citation of authorities.

II. It is objected that the bill filed after the time for redemption had elapsed came too late. That would be so, if the essentials of redemption had not intervened before the right became barred by the lapse of foreclosure time. But they had intervened. The amount due on the mortgage had been tendered. But it is urged that the tender was made by the mortgagor, who had conveyed away his right to redeem. So it was, but it was done by authority of his grantee and may be considered his act. It is urged that the tender was too late, that it was made after the foreclosure time had run. That is true, but it was made within the extension agreed to by the mortgagee. It is urged that the tender was ineffectual because, as no money was produced, it does not appear that sufficient money, or any money, was at hand. But all this was waived by the mortgagee. The mortgagor told him "that he had come to pay him the money” and put his hand in his pocket to take out his money, whereupon the mortgagee replied : "You need not make me a tender. You needn’t take out your money, for I -will not take a cent from you, . . . the mortgage ran off yesterday.” All necessary essentials of the tender were waived, except whether seasonably done, and that is shown by the bill, for the time of redemption was agreed to be extended one day and during that day the tender was made. The parties may agree by parol to extend the time for redemption of a mortgage, and-the agreement will bind them. Chase v. McLellan, 49 Maine, 375; Fisher v. Shaw, 42 Maine, 32; Stetson v. Everett, 59 Maine, 376.

Payment extinguishes a debt. Tender, if of sufficient amount, when accepted, is payment; when rejected, operates as payment, so long as it is kept good. In the case at bar, the tender operated the same as if it had been payment, and gave the plaintiff interested a right to cancellation and surrender of the mortgage. This right might be enforced in equhy at any time until laches should prevent it, but for the limitation of one year fixed by R. S., c. 90, § 19.

Under § 14 of c. 90, the bill must be filed before the time for redemption has elapsed. Under § 15 tender or performance of condition must be made during that time, and the bill may be brought at any time within the year named in § 19. Walden v. Brown, 12 Gray, 102, very closely resembles the case at bar. Whether the tender has been kept good and has been paid into court, as in Morrill v. Everett, 83 Maine, 290, does not appear from the bill. No objections upon that ground are raised, and, as in Richards v. Pierce, 52 Maine, 560, need not be considered here.

Excerptions sustained. Defendant to answer.