This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
The debtor may attach a condition to the tender requiring the creditor to perform some act which he would be in any event legally bound to do without affecting the sufficiency of the tender.1 Thus he may require the surrender of property which the creditor was holding under a lien to secure the debt of which tender was made,2 or the surrender of property pledged to secure such debt,3 or the release of a mortgage given to secure such debt,4 or the reconveyance of property conveyed by a deed, absolute on its face, but intended as a mortgage.5 A tender to one who claims as assignee of a mortgage debt, but whose title is denied by the original mortgagee, may be coupled with demand for the production of a written assignment of such debt or a release of the mortgage by the original mortgagee, without destroying its validity.6
7 Bates v. Bates, Walk. (Miss) 401, 12 Am. Dec. 572
8 Dixon v. Fletcher, 3 M. & W. 140; Naylor Lumber Co. v. American. Tie & Timber Co., 107 Ala. 403, 73 So. 12; Rommel v. Wingate, 103 Mass. 327; Croninger v. Crocker, 62 X. Y. 151. *
Such a tender is, at any rate, not such a delivery as to pass title to the purchaser, and as to enable the seller to sue for the purchase price. Mc-Cormick Harvesting Machine Co. v. Balfany, 78 Minn. 370, 70 Am. St. Rep. 393, 81 X. W. 10.
9 Perry v. Mount Hope Iron Co., 16 R. I. 318, 15 Atl. 87.
10 Smith v. Loomis, 7 Conn. 110.
1 Berry v. Bank, 177 Cal. 206, 170 Pac. 415; Lamb v. Jeffrey, 41 Mich. 710, 3 N. W. 204.
Contra, Storey v. Krewson, 55 Ind. 397, 23 Am. Rep. 668.
2 Johnson v. Cranage, 45 Mich. 14, 7 X. W. 188.
3 Loughborough v. McNevin, 74 Cal. 250, 5 Am. St. Rep. 435, 17 Pac. 69; Berry v Bank, 177 Cal. 206, 170 Pac. 415; Moynahan v. Moore, 9 Mich. 0, 77 Am. Dec. 468.
4 Saunders v. Frost, 22 Mass. (5 Pick.) 250, 16 Am. Dec. 304; Halpin v. Phenix Ins. Co., 118 X. Y. 165, 23 X. E. 482.
Contra, Fields v. Danenhower, 65 Ark. 302, 43 L. R. A. 519, 46 S. W 938
Contra, in Indiana on the theory that the payment of the note discharges the mortgage ipso facto. Storey v. Krewson, 55 Ind. 307, 23 Am. Rep. 668.
5 Mankel v. Belscamper, 84 Wis. 218, 54 X. W. 500.
6 Kennedy v. Moore, 91 la. 39, 58 N. W. 1066.
Since a party who is bound to perform a concurrent covenant may demand that the adversary party shall, at the same time, perform the covenant on his part to be performed,7 a party who tenders performance of a concurrent covenant is not imposing conditions which the adversary party is not already bound to perform, by demanding that the adversary party should perform the covenant on his part to be performed as a condition to his accepting such tender.8