ANDREW HIMMELMANN v. JOHN FITZPATRICK et al., 50 Cal. 650

By the Court : We do not anticipate the serious consequences suggested "by appellant, as the result of an adherence to the rule laid down in Perre v. Castro, nearly sixteen years ago, and which has been regarded as the law of this State ever since the decision in that case, that mere tender after the law day does not discharge the lien of a mortgage. And we are the more indisposed to reverse that case, if, as asserted by appellant,

section 1504 of the Civil Code will prevent any further evil consequences from the rule as heretofore established. It has never been claimed that a tender paid the debt, but it has been urged, and in some States decided, that it should deprive the mortgagee of his peculiar remedy by action to foreclose. In the present case, if the tender was made in good faith, and was intended to be kept good, the mortgagor could have paid the money into court on the commencement of a proceeding to compel the mortgagee to accept it, and to satisfy the mortgage. But as we said, by Mr. Justice Baldwin, in Perre v.

Castro: “It would be very harsh to hold that the debt is lost—the general effect of losing the security—by a mere refusal at a particular moment to receive it—that refusal induced, too, it might be by a variety of circumstances, morally excusing it, or at least not grossly violative of any positive duty, and productive of little or no injury to any one.” (14 Cal. 530.) It is probable that, under the provision of the Civil Code referred to, a tender will hereafter stop the running of interest, but upon that question we are not called on to express an opinion. Judgment affirmed.