#### Faulkner’s Administratrix v. Brockenbrough.

May, 1826.

Mortgages — Payment oí Money aiter Day Stipulated,† —Where itis stipulated In a mortgage, that money shall he paid on or before a given day, and it is paid after that day, the mortgagee is not deprived of his right of action at law on the mortgage.

Same — Same—Effect of Acceptance. — The acceptance of the money by the mortgagee, after the day appointed for payment does not change the rights of the parties, at law.

Austin Brockenbrough, brought an action of detinue against Catharine Faulkner, administratrix of Thomas Faulkner ■deceased, in .the Superior Court of King & Queen county, to recover a slave. The defendant pleaded non detinet, and issue was joined.

The jury found a verdict for the plaintiff, and the defendant moved for a new trial, which was refused by the Court. To this decision, the defendant filed a bill of exceptions, setting forth the evidence which was introduced on the trial. It states, that the plaintiff proved at the trial, that Elliott Muse and wife, had conveyed to him by deed of mortgage, for valuable consideration, the slave in dispute, on the 9th day of April, 1816. This deed recites, that the said Muse had executed his bond, with Walter Healy and George Healy his sureties, for the sum of *$3000, payable to Austin Brockenbrough, on or before the 18th day of *107April, 1817; and the said Muse, wishing further to secure the payment of the said sum of money, conveyed the property therein described, consisting of real and personal estate, and among other things, the slave in dispute; provided, that if Elliott Muse, Walter Healy or George Healy, should pay or cause to be paid to the said Brockenbrough, the said sum, on ■or before the 18th day of April, 1817, with interest, &c. the deed should be void.

T'he plaintiff also proved, that the defendant was at the institution of this suit, in possession of the said slave.

The defendant then proved, that the plaintiff, before the institution of this suit, had been paid by Walter Healy, one of the sureties to the bond above-mentioned, the whole amount of the money due to him, which the said mortgage was intended to secure; but that the said plaintiff had never executed a release; and that this suit was brought and carried on, for the benefit, and at the costs of the said Healy, the said plaintiff having consented thereto. On these grounds, the defendant moved the Court, at the trial, to instruct the jury, that the plaintiff could not recover in this action, if he was so paid off his debt; which motion being over-ruled, he moved for a new trial, which was aiso refused; judgment was rendered for the plaintiff, and the defendant appealed.

Leigh, for the appellant,

admitted that, at law, if there be a feoffment with a defeasance, the condition must be strictly performed; but he contended, that in this case, the facts were not stated with the necessary precision. But. even if the money was paid after the day, Brockenbrough, could not recover, after he was fully satisfied; and he could not surely recover for the benefit of another, what he could not recover for himself. But the acceptance of the money by Brockenbrough, waives the forfeiture. In Co. Litt. 211, b. sec. 341, 342, 343, 344, there are analogous cases, in which the forfeiture is waived, by acceptance of *money, &c. It appears by the same author, that a condition for a mortgagor to do some act, is always construed favorably for him, because its object is to create, and not to defeat the estate.

Stanard, for the appellee, denied that the record was uncertain, and insisted that It sufficiently appeared, that the money was paid after the day, appointed by the condition of the mortgage. The rule of law is express, that conditions of this sort must be strictly performed. The instances cited by Coke Littleton, do not apply. They only prove, that the place of performance may be changed by consent of parties. But the time of performance does not admit of such alteration. If a party receives money at a different place, from that stipulated, the payment is good, because if it was not there received, the debtor might go to the right place, if the money was not accepted there. But when the time has passed, he has no such option.

But it was incorrect in the appellant, to move for a new trial, on the ground of improper instructions given by the same Judge, before whom the motion is made.

Where there is a satisfied trust, an action may be maintained, either by the trustee, or the cestui que trust. Hopkins v. Stevens, 2 Rand. 423.

†

See monographic *note*on “Mortgages” appended to Forkner v. Stuart, 6 Gratt. 197.

May 23.

The PRESIDENT

delivered the opinion of the Court.

The only question in this case, on the merits, which is presented by the bill of exceptions filed in the record, is, whether the instruction to the jury, asked for by the defendant, was properly refused by the Judge? After the plaintiff had exhibited his evidence, to wit: that Elliott Muse and wife had conveyed to him, by deed of mortgage, for valuable consideration, the slave in the declaration mentioned, and also the deed of mortgage duly recorded; and also had proved, that the defendant was, at the institution *of the suit, in possession of the said slave; the defendant then proved, that the said plaintiff, before the institution of the suit, had been paid by Walter Healy, one of the sureties to the collateral bond, in the said mortgage mentioned, the whole amount of the money due to him, which the said mortgage was Intended to secure; but, that the said plaintiff had never executed a release, and that the said suit was instituted and carried on, for the benefit and at the costs of the said Healy, the said plaintiff having consented thereto. The defendant then moved the Court to instruct the jury, that the said plaintiff could not recover in this action, if he was. paid off his debt for the benefit of the said Healy; which instruction, the Court refused to give.

Upon these premises, it is not easy to imagine, in what the Court erred, in refusing the instruction. There is nothing in the mortgage, which, by any possible construction of it, would make a payment after the day stipulated in the mortgage, equivalent to a payment at or before the day; and, as it lay upon the defendant to prove the payment at or before the day, in discharge of the defeasance in the mortgage, he ought to have stated it in the bill of exceptions, if the fact was so. Having omitted to state it, it must be taken, that the payment relied on, was after the day in the defeasance; and in that point of view, the law is very plain.

The estate of the mortgagee in the property included in the deed, until forfeiture, continues as at the common law, before the interference of the Courts of Equity. He is entitled to an estate as tenant in mortgage in fee, or for a term of years, as the case may be; or to an absolute estate in personal property, as regards the title; subject to any agreement as to the possession, and defeasible at law, by performance of the condition. Ryall, &c. v. Rolle, &c. 1 Atk. 179. 1 Pow. on Mortgages, 204. After the forfeiture by failing to perform the condition, whereby the estate becomes absolute, the mortgagee may enter upon it, and take possession, without any possibility at law, of 'xbeing evicted by the mortgagor; 1 Pow. on Mortg. 185; or, if the possession be in the mortgagor, he may recover it by suit, unless there be some agreement in the deed, (which does not exist in this case,) varying the rights of the parties at common *108law. The judge, therefore, was correct in refusing the instruction to thé jury, asked for by the defendant. The mere acceptance of payment after the day in defeasance, cannot, by implication or inference, change the rights of the parties, as to personal or real estate, at law; or the Statute of 7 Geo. 2, chap. 20, (which is not in force here,) would have been unnecessary, as regards the latter, in England. The fact that the mortgagee agreed that this suit should be for thé benefit of Healy, the surety, who had paid the monéy, and at his costs, has no influence on the rights of the parties, at law, or in equity; as there also, a surety who paid the money would be entitled to the legal effect of the deed, upon the principle of substitution ; which jurisdiction of equity would be entirely frustrated, if payment after the day, by the surety, would divest the legal title of the mortgagee.

Judgment affirmed.