13. Vann v. Marbury, 100 Ala. 438, 23 L. R. A. 325, 46 Am. St. Rep. 70, 14 So. 273; Napieralski v. Simon, 198 111. 384, 64 N. E. 1042; McCabe v. Farnsworth, 27 Mich. 52; Van Keuren v. Corkins, 66 N. Y. 77; Horstman v. Gerker, 49 Pa. St. 282, 88 Am. Dec. 501; Foster v. Carson, 159 Pa. 477, 39 Am. St. Rep. 696, 28 Atl. 356.

14. Ante, this subsection, note 93.

15. In Schultz v. Sroeldwitz, 191 111. 249, 61 N. E. 92, it appears to be decided that a payment by such subsequent transferee of the land to the assignor is not good, as against the assignee, since the latter was under no obligation to notify such transferee of the assignment.

-(d) Tender. It has been decided in a number of states that a tender of the debt secured by the mortgage, after default in payment, is, even though not kept good, effective to extinguish the mortgage lien, leaving the mortgage creditor to his personal remedy against the debtor.18 These decisions are based on the assumption that such a tender on the day of maturity will extinguish the mortgage, and it is argued that, under the modern view of a mortgage as subject to redemption at any time before foreclosure, there should be no distinction between the effect of a tender at and after maturity. There are on the other hand, decisions which deny such an effect to a tender after maturity 19

16. Biggerstaff v. Marston, 161 Mass. 101, 36 N. E. 785; Murphy v. Barnard, 162 Mass. 72, 44 Am. St. Rep. 340, 38 N. E. 29.

17. .Ante, this subsection, note 12.

18. Caruthers v. Humphrey, 12 Mich. 470; Potts v. Plaisted, 30 Mich. 149; Ferguson v. Popp, 42 Mich. 115, 3 N. W. 287; Moore v. Norman, 43 Minn. 428, 9 L. R. A. 55, 19 Am. St. Rep. 247, 45 N. W. 857; Willard v. Harvey, 5 N. H. 252 (dictum); Kortright v. Cady, 21 N. Y. 343, 78 Am. Dec. 145; Salinas v. Ellis, 26 S. C. 337, 2 S. E. 121; Murray v. O'Brien, 56 Wash. 361, 105 Pac. 840 (tender before suit to foreclose). So in the case of a debt secured by chattel mortgage. Bartel v. Lope, 6 Ore. 321; Thomas v. Seattle Brewing & Malting Co., 48 Wash.

560, 15 L. R. A. (N. S.) 1164, 125 Am. St. Rep. 945, 15 Ann. Cas. 494, 94 Pac. 116.

19. Perre v. Castro, 14 Cal. 519, 76 Am. Dec. 444; Himmel-man v. Fitzpatrick, 50 Cal. 650; Crain v. McGoon, 86 111. 431, 29 Am. Rep. 37; Tishimingo Sav. Inst. v. Buchanan, 60 Miss. 496; Smith v. Williams-Brooke, 111 Miss. 393, 71 So. 648; Hudson Bros. Commission Co. v. Glencoe Sand & Gravel Co., 140 Mo. 103, 62 Am. St. Rep. 722, 41 S. W. 450; Knollenberg v. Nixon, 171 Mo. 445, 94 Am. St. Rep. 790, 72 S. W. 41; Shields v. Lozear, 34 N. J. L. 496; Lincoln Sav. Bank v. Ewing, 12 Lea (Tenn.) 598 (semble). See New South Wales v. O'Connor, 14 App. Cas. 273, to the effect that a tender refused is not equivalent to payment.

Or, which is in practical effect the same, deny such an effect to a tender after maturity unless the tender is kept good.20

The view indicated in the decisions first referred to, that no distinction should be made in this regard between a tender at maturity and a tender thereafter, is, it is submitted, a proper and sensible one, and this irrespective of whether the legal title is or is not vested in the mortgagee, since it is the equitable and not the legal view which controls in determining the rights of the parties to a mortgage. But the assumption that a tender at maturity, not kept good, extinguishes the mortgage, though made in decisions denying such an effect to a tender after maturity,21 as well as in others,22 is, it is submitted, open to question. It is based, directly or indirectly, upon the statements by Littleton and Coke,23 that when a man enfeoffs another upon condition that if the feoffor pays a sum of money he may re-enter, and the latter tenders such sum, the condition is discharged. In the times of those writers this was a necessary consequence of the effect of a breach of the condition in causing an absolute forfei20. Maxwell v. Moore, 95 Ala. 166, 36 Am. St. Rep. 190, 10 So. 444, and Matthews v. Lindsay, 20 Fla. 962; Parker v. Beasley, 116 N. C. 1, 33 L. R. A. 231, 21 S. E. 955; Security State Bank v. Waterloo Lodge, 85 Neb. 255, 122 N. W. 992 {semble).

21. Crain v. McGoon, 86 111. 431, 29 Am. Rep. 37; Shields v. Lozear, 34 N. J. L. 496; Merritt v. Lambert, 7 Paige (N. Y.) 344, Dickerson v. Simmons, 141 N. C. 325, 8 Ann. Cas. 361, 53 S. E. 850; The language of the majority of the decisions cited ante, this subsection, notes 19, 20, appears to be that a tender even at maturity, if not kept good, will not extinguish the mortgage lien.

22. Shearff v. Dodge, 33 Ark. 346; McClellan v. Coffin, 93 Ind. 456 (semble); Darling v. Chapman. 14 Mass. 101; Eslow v. Mitchell, 26 Mich. 500; Moore v. Norman, 43 Minn. 428, 9 L. R. A. 55, 19 Am. St. Rep. 247, 45 N. W. 857; Kortright v. Cady, 21 N. Y. 343, 78 Am. Dec. 145; Salinas v. Ellis, 26 S. C. 337, 2 S. E. 121; McDaniels v. Reed, 17 Vt. 674; Mitchell v. Roberts, 5 McCrary (U. S.) 425.

23. Litt. Sec.Sec. 335, 338; Co. Litt. 209b; 9 Co. Rep. 79.

Ture of the feoffor's rights. Had such an effect not been given to a tender at maturity, one of two results must have followed, either that the mortgagee would always have it in his power, by refusing a tender, to compel a forfeiture, or that a payment after maturity would have the same effect in preventing a forfeiture as would a payment at maturity, a view entirely at variance with the rigid judicial attitude towards conditions which then prevailed. But after equity came to recognize the mortgagor's right of redemption, and to treat the mortgager's interest as that of a lienor merely, there was no necessity for giving such an effect to a tender in order to protect the mortgagor against possible bad faith on the part of the mortgagee in refusing to accept a tender of the sum due. The purpose and effect of a tender is ordinarily to throw upon the creditor the risk of further litigation, he being subjected, upon refusal of a rightful tender, to subsequently accruing interest and costs, and in some cases to liability for damages by reason of this refusal. And as this is sufficient for protection as against a claim not secured by mortgage, it is, it is conceived, sufficient for protection as against a claim which is so secured. In support of the view that a tender of the debt extinguishes the mortgage lien, reference is sometimes made, by way of analogy, to the doctrine that the right of distress is extinguished by tender of the rent and its refusal. But a tender of the rent does not render a distress unlawful unless it is kept good, that is, it takes away the right to distrain only until a subsequent demand of the rent is made.24 Reference by way of analogy is also made to the common law doctrine that the tender of a debt secured by pledge extinguishes the rights of the pledgee, so that, if he refuses to return the property, the pledgor may bring adjudication adverse to his right, subject the land to a continuance of the mortgage incumbrance, in spite of his previous refusal of the tender.