Hinman v. Bacon

The plaintiff alleges in his bill, that he mortgaged several pieces of land as security collateral to a promissory note, which note and mortgage have been assigned to the defendant; that one of the aforesaid pieces of land has been foreclosed, and the legal title vested in the defendant; and that since this period, he has paid the above note and all costs to the defendant, and received from him the said note; but that, although demanded, the defendant has refused to convey to the plaintiff the foreclosed piece of land, or to repay the money as aforesaid paid to him.

To obtain a reconveyance of the land, or repayment of the money, is the object of the plaintiff’s bill.

The facts stated in the bill are admitted, except those in relation to the payment of the money abovementioned, in satisfaction of the said note and costs; and these facts are denied.

From the record it appears, that at the time when the above note and mortgage were assigned to the defendant, by one Charles S. Masters, the assignee of the mortgagees, an agreement was made by Masters, to procure a release of the foreclosed premises from the said mortgagees to the defendant, which was afterwards accordingly done. At the same time, the defendant agreed with Masters, that he would not, until after the expiration of six months, bring forward any process to foreclose the residue of the lands mortgaged, nor commence any suit on the note; and that on payment of the money due to him, within the above period, he would deliver up the note to the plaintiff, and would pay him what the piece of land foreclosed should be appraised at by judicious and disinterested men to be agreed on; and in the event of their dis*233agreeing, that each should choose an appraiser, and that they should elect a third. No appraisment of the land has ever been made; but within the specified period, the plaintiff selected an appraiser, and demanded of the defendant to make choice of another, which he declined to do, until he had seen his counsel, saying, at the same time, that, if it was proper, early the next morning he would make the appointment. The plaintiff objected to any postponement; and refused to delay the business to any future period. On the next day, the defendant named an appraiser to the plaintiff, who replied, that he would not have him on his land. Thus terminated the negotiation, relative to the appraisement.

The plaintiff, within the time prefixed, in two different forms, tendered the money due to the defendant. In the first place, he made a tender of money in full of the note, the interest upon it, and the costs of foreclosure. This the defendant refused to accept. The plaintiff then tendered the same money, in full satisfaction of the note, the decree of foreclosure, and the sums which the defendant agreed with Charles S. Masters, to receive for the note.

In review of the facts, thus abridged, it is undeniably clear, that the money tendered was not received in satisfaction of the note and costs of suit. The tender made and accepted, although it operated as a payment of the defendant’s debt, was in performance of the contract made between the defendant and Masters. This is apparent from the words of the tender, which were; “I tender you the whole sum above, in full satisfaction of said note, and decree, and also in full satisfaction of the sum by you contracted with Charles S. Masters to receive for said note.” The accompanying and subsequent acts of the plaintiff, speak the same language. A deed was tendered in fulfilment of the contract; an appraiser was named, for the appraisement of the land foreclosed; and the objection made by the plaintiff to the person elected, by the defendant, was personal, and not to the object of his appointment; and what puts the enquiry past controversy, there was an actual refusal to accept the money offered merely in satisfaction of the note and decree. The delivery of the note to the plaintiff, after the acceptance of the money, is a very immaterial fact, and has no operation on the legal result, as it was in pursuance of the contract with Masters.

There exists no question, if the plaintiff paid, and the defendant received, the money before mentioned, in full satis*234faction of the note and decree of foreclosure, and this were the entire case, that Hinman would be entitled to a reconveyance of the property mortgaged. But the facts are in opposition to the preceding hypothesis. The money was not paid and accepted, with the view of satisfying the mortgage, but to obtain the benefit of the contract with Masters. Unless there has been a performance of the condition precedent, contained in that agreement, the plaintiff, at present, from the money paid, can derive no benefit. By the tender and acceptance of it, Hinman had acquired a right to procure an appraisement of the land foreclosed; and after this event, the defendant would be obliged to pay him the estimated value; but, he stumbled at the threshold, by selecting an appraiser, and demanding an instantaneous performance of a similar act of the defendant. The contract specified no time within which this act should be done; and on the most equitable principles, the defendant must he allowed a reasonable period, in which to consult with his counsel, and to exercise his own reflections on the subject of his choice. The conduct of the plaintiff, in refusing to accede to the defendant’s appointment of an appraiser, was a waiver of the antecedent choice, which he had made, and put the parties in statu quo. He can have no claim on Bacon for the foreclosed land; the supposition is most inequitable. By the foreclosure and deed of release from the mortgagees, it became the legal property of the defendant; and the contract with Masters was merely intended, on payment of the mortgage debt and costs, to oblige himself, in a prescribed mode, to do what in justice the plaintiff might require. If Hinman has not received the fruit of this agreement, it is solely attributable to his own conduct. As to the money paid to the defendant, it was equitably his due, and it remains so, at the present moment. If, however, there were any remedy to recover, it would not be necessary for the plaintiff to recur to the extraordinary powers of this court.

Bill to be dismissed.