E. T. Bailey and a. vs. Levi Willard, 8 N.H. 429

Richardson, O. J., delivered the opinion of the court. We shall not stop to enquire whether the amount tendered to Willard was sufficient to discharge the mortgage given by Harvey to Fuller, or whether a tender made by Harvey in his own name could have been adopted by these petitioners so as to enable them to maintain this petition. For, admitting that a sufficient sum was tendered, and that these petitioners might have adopted the tender, we are clearly of opinion, that they were bound to proceed in a reasonable time, and have the question of the sufficiency of the tender settled.

The tender was made in February, 1824 : Bailey died in 1825. It does not appear that Bailey, in his lifetime^ or his executor or administrator after his decease, ever thought of adopting the tender. Nor does it appear that these petitioners attempted to adopt that tender till the 15th March, 1832, eight years after it had been made, when they brought an action to recover the land. 6 N. H. R. 156.

And we are of opinion, that after a lapse of eight years it was quite too late to permit the heirs of Bailey to adopt the tender, and that they must be considered as having abandoned and waived whatever right they may have originally had to adopt it. And we are farther of opinion, that had they adopted the tender in season, their neglect to follow it up by a petition to redeem, for eight years, must be considered as an abandonment of it. It must be exceedingly inconvenient to the mortgagee to have the question as to the sufficiency of the tender remain long undecided.

And it is doing the mortgager and those who claim under him, no injustice to hold that if he do not pursue his remedy in a reasonable time lie must be considered as having waived the tender. What is to be deemed a reasonable time, need not be now settled, because it is clear that an attempt to set up the tender in this case now, cannot be considered as made in due season.

But possession was taken under the Ralston mortgage on the 26th December, 1821; and unless the assignment of that mortgage to Willard, on the 24th October, 1822, must be considered, under the circumstances, as a discharge, he is entitled to hold this land under that mortgage. The question then is, whether Willard’s agreement with Fuller, on the 6th December, 1821, to save Fuller harmless from the Ralston mortgage, made the payment to Fox by Willard a discharge of that mortgage ? In order to determine this question, it is necessary to examine the situation of the parties to that agreement at the time it was made.

Fuller was indebted to Fox, on the Ralston mortgage, about $1700. The written agreement between Willard and Fuller mentions three mortgages assigned by Fuller to Willard. What two of them were is not stated in this case. But in Willard vs. Harvey, 5 N. H. R. 253, it appears that besides Harvey’s mortgage, there was one given by Dort for $264, and one given by Robbins for $300. The three mortgages assigned to Willard by Fuller, with interest, amounted to about $1700, and it seems that they embraced the whole of the Ralston farm.

Fuller’s object in his contract with Willard was, to make the three mortgages clear him from the Ralston mortgage. He did not probably wish to be called upon to pay that mortgage, or to be liable to Harvey, Dort and Robbins, on his covenants of warranty with them, in case they should discharge that mortgage. Willard might have been willing to take. the three mortgages and save Fuller harmless from the Ralston mortgage, and not willing that the Ralston mortgage should he discharged ; because, in that case, a part of the Ralston farm might he redeemed and the rest left in his possession.

And Harvey, Dort and Robbins were placed in no worse situation by Willard’s taking an assignment of that mortgage than they were before. They could not before hold the land without discharging that mortgage. If, before the. contract with Willard, they had paid the Ralston mortgage, Fuller had their mortgages to meet any claim they might have had against him on his covenants of warranty. And after that contract, if they paid and discharged the Ralston mortgage, Willard had their mortgages to meet their claims against Fuller on the covenants of warranty, and thus save Fuller harmless.

So far as the situation and probable views of Fuller arid Willard are disclosed in this case, there seems to he no reason to suppose that the understanding between them was that the Ralston mortgage should be discharged. In a case like this, the mortgage is to he considered as discharged, or as still subsisting, according as under the circumstances the justice of the case may seem to require. But there is nothing disclosed in the case of these petitioners that seems to us to entitle them to have the Ralston mortgage considered as discharged.

We are, therefore, of opinion that for this reason the petition cannot be sustained. Judgment for the defendant.