It is the duty of a mortgagee on being paid by the mortgagor the principal, interest and costs due upon the mortgage, and contemporaneously with such payment, to hand to the mortgagor the title deeds together with a duly executed reconveyance (r) of the mortgaged property (.s). Therefore, where a mortgagor who had given notice to the mortgagee that he would attend for that purpose made a tender of the amount due and the mortgagee refused to hand over to the mortgagor then and there an endorsed reconveyance of the mortgaged property, together with the title deeds, and an action for re-demption was subsequently brought by the mortgagor, the court refused to allow the mortgagee interest and costs subsequent to the date of the tender and ordered him to pay the costs of the action (t).

(p) Schwartz v. Williams, 1915, 35 O.L.R. 33, 27 D.L.R. 733.

(q) Re Pambrun and Short, 1914, 7 A.L.R. 314, 16 D.L.R. 193, adopting the dissenting opinion of Armour, C.J. in Archbold v. Building and Loan Association, 1888, 15 O.R. 237, S.C. reversed on another point, 16 O.A.R. 1.

(r) Or, in Ontario, a duly executed discharge, if the mortgagor does not require a reconveyance.

(s) Rourke v. Robinson, [1911] 1 Ch. 480, following Walker v. Jones, 1866, L.R. 1 P.C. 50, at p. 61.

A tender by a mortgagor to a mortgagee of mortgage moneys due need not, in order to prevent further interest running, necessarily be such a tender as would afford a defence to an action at law (u), but where the tender is made conditional on the execution of a reconveyance, a reasonable time must be allowed in which to obtain the execution of the deed, especially when the conveying parties are not.the persons to whom the tender is made (v).

If a person entitled to redeem makes a proper tender of the amount due, the mortgagee will not be entitled to recover interest accruing or costs incurred thereafter (w), but the person liable to pay must keep the money ready to pay over on demand to the mortgagee (x).

A tender to be good must be made by a person entitled to redeem; tender by a stranger is not good, for as against a stranger the mortgagee's estate is absolute. It may be made by the solicitor or agent of the person entitled to redeem (y).

A tender may be made to the mortgagee, or to any other person entitled to receive the money and reconvey the estate, as for example, a trustee of the mortgagee, his assignee, or his executors or administrators (z). A tender to a solicitor or other agent of the mortgagee will not be good unless he has authority to receive the mortgage money (a).

(t) Rourke v. Robinson, supra, following Cotterell v. Stratton, 1872, L.R. 8 Ch. 295, at p. 302. It has been held in New Brunswick that a tender by the mortgagor of the amount due on a mortgage accompanied by a demand for a discharge of the mortgage and a release of the debt is conditional, and does not deprive the mortgagee of his costs in a redemption suit. McKenzie v. McLeod, 1909, 39 N.B.R. 230, 4 N.B. Eq. 72.

(u) Webb v. Crosse, [1912] 1 Ch. 323, following Manning v. Burges, 1663, 1 Cas. in Ch. 29.

(v) Webb v. Crosse, supra, following Wiltshire v. Smith, 1744, 3 Atk. 89.

(w) Knapp v. Bower, 1871, 17 Gr. 695; Bishop v. Church, 1751, 2 Ves. Sen. 370; Lord Midleton v. Eliot, 1847, 15 Sim. 531.

(x) Kinnaird v. Trollope, 1889, 42 Ch.D. 610; Bank of New South Wales v. O'Connor, 1889, 14 App. Cas. 273; Knapp v. Bower, 1871, 17 Gr. 695; Edmondson v. Copland, [1911] 2 Ch. 301.

(y) Ward v. Carttar, 1865, L.R. 1 Eq. 29.

If a place is appointed for payment the tender must be made at that place. If the mortgagee has demanded payment or if the mortgagor is willing to pay six months' interest in lieu of notice, a tender may be made at any time, but if the money is payable at a time certain by the mortgage contract, or at the expiration of a six months' notice after default, the tender must be made on the very day (b).

In order to constitute a good tender there must be actual production and offer of the money, unless waived by the mortgagee. Actual production may be dispensed with if the creditor refuses to accept the money when the debtor offers to produce it, but before he has actually produced it, but the debtor must have the money ready to pay at the time when he offers to do so (c).

A tender made by letter without actually enclosing the money is not good (d). The exact amount must be tendered; a tender of a larger sum requiring change is not a good tender (e), and the whole amount due must be tendered; the mortgagor cannot tender a less sum and claim a set-off for the remainder (f).

(z) Cliff v. Wadsworth, 1843, 2 Y. & C.C.C. 598. (a) Withington v. Tate, 1869, L.R. 4 Ch. 288. (b) Briggs v. Calverley, 1800, 8 T.R. 629. In Ontario, see however, s. 16 of the Mortgages Act, quoted in Sec. 253, supra.

(c) Lake v. Biggar, 1860, 11 U.C.C.P. 170; Thomson v. Hamilton, 1835, 5 U.C.O.S. Ill; Milburn v. Milburn, 1847, 4 U.C.R. 179; Pol-glass v. Oliver, 1831, 2 Cr. & J. 15; Harding v. Davies, 1825, 2 C. & P. 77; Douglas v. Patrick, 1790, 3 T.R. 683; Kraus v. Arnold, 1822, 7 Moo. 59; Reynolds v. Allan, 1852, 10 U.C.R. 350; Long v. Long, 1870, 17 Gr. 251; Middleton v. Scott, 1902, 4 O.L.R. 459.

(d) Powney v. Blomberg, 1844, 14 Sim. 179.

(e) Cottrell v. Finney, 1874, L.R. 9 Ch. 541. (f) Searles v. Sadgrave, 1855, 5 E. & B. 639.

A tender to be valid must not be subject to any condition (g) other than the requirement that a receipt should be given (h) or that the title deeds and a reconveyance or discharge should be handed over (i).

A tender of the amount claimed under protest and reserving the right of the mortgagor to dispute the amount due is valid (j). A tender of mortgage money, accompanied by a statement that the person tendering did not consider that the amount tendered was due and that the person to whom the tender was made would thereafter be compelled to repay the excess, was held not to have been invalidated by the statement, but it was held in the same case that a tender to the holder of a mortgage, who claimed a larger sum, with a condition that the mortgage, on the sum tendered being accepted, should be given up was bad as being conditional (k).

If the mortgagee refuses to accept the moneys when a proper tender is made, and to execute a discharge or reconveyance, he may be compelled to do so and may be ordered to pay the costs of an action for that purpose (I).

If a sale is made by the mortgagee under the power of sale in the mortgage, after a proper tender has been made, it will be set aside if the purchaser had notice of the tender (m).

A mortgagee's solicitor may not accept a cheque in payment unless he has authority to do so; consequently the tender of a cheque is not a good tender in the absence of such authority (n).

(g) Jennings v. Major, 1837, 8 C. & P. 61.

(h) Lockridge v. Lacey, 1870, 30 U.C.R. 494.

(i) Rourke v. Robinson, supra, p. 497.

(j) Sweny v. Smith, 1869, L.R. 7 Eq. 324; Peers v. Allen, 1872, 19 Gr. 98.

(k) Peers v. Allen, 1872, 19 Gr. 98.

(l) Harmer v. Priestley, 1853, 16 Beav. 569.

(m) Jenkins v. Jones, 1860, 2 Gift*. 99.

Legal tender in Canada is governed by the Currency Act, 1910, and the Dominion Notes Act, 1914. Dominion notes, gold coins struck by the authority of the crown for circulation in Canada, British sovereigns and multiples or divisions thereof (at the rate of $4.86 2-3 to the sovereign), and gold coins of the United States coined since the 18th January, 1837, of the present weight and standard of fineness, are legal tender in Canada for a payment of any amount. Silver and bronze coins of the currency of Canada are legal tender for payments of any sums not exceeding ten dollars and twenty-five cents respectively (o). Bank notes are not legal tender, but a bank is obliged always to receive in payment its own notes at par at any of its branches, agencies or offices (p).