Williams v. Rorer, 7 Mo. 556

■Opinion of the Court, delivered by Scott, Judge Williams commenced his action against Rorer, in a justice’s court, for fifty dollars, part of the supposed value of aunare which Williams alleged he had pawned to Ro-rer. ... It seems. Williams executed and delivered to Rorer The instrument The mare was delivered at the date of an. absolute bill of sale, for the mare was under seal. the bill of sale.

Rorer delivered to Williams an instrument, of which the following is a copy. eredpossession, and gave an absolute the samé E execu-rate paparla g^n^to A the right to redeem the mare, on the at law, on failure of A. to redeem within the prescribed time. payment of certainsumon a certain mortgage^and not a and that the title of B. at fattT'oifflie “This is to certify that I am willing that Benjamin Williams may redeem the Uncas mare, by refunding me one hundred dollars, any time between this and the first day of June, and if not, she is my property in full.

Given under my hand this third day of March, 1840- German A. Rorer.” It was proved that Rorer sold the mare to one of his neighbors, but on condition, that if Williams made application to redeem her before the first day of June, she •should be returned to Rorer, to enable him to comply with his undertaking to Williams. Williams tendered the money to Rorer on the first day of June, and was told by him that he was one day too late. The tender was in bank notes.

There was contradictory testimony as to the value of the mare, some of the witnesses believing ■she was worth one hundred dollars, the price paid for her, and some of them thinking she was worth more. Rorer •obtained judgment, and Williams sued out his writ of error. Itwas contended in the circuit court by Rorer, that the transaction amounted to a mortgage, or to a conditional sale, and consequently that the plaintiff was not entitled to recover, not having tendered the money within the time agreed on by the parties. Of this opinion was the court, and instructed the jury accordingly.

On the other hand it was insisted, that the agreement between the parties constituted a pledge, and that ■quently the plaintiff had a right to redeem the mare after , ° . the lapse of the time appointed by the parties for her redemption, and that even if such was not the law respecting the redemption of a pledge, yet Rorer having sold mare before the time for redemption had passed, Williams was released from all obligation to tender the debt. The court refused instructions embodying this view of the , . , .subject.

A tender made in bank bills is good,unless jl is objected to for the rea-so'made! ^ iS There is a distinction between-a mortgage and a-pledge, which is well ascertained both in the English and American law. A mortgage of goods differs from a pledge in this, that the former is a conveyance of title upon condition, and it becomes an absolute interest at law, if not re-a deemed by the prescribed time ; and it may be valid with- , ,. , . . . . .. ,, ’ , out delivery. A pledge, or pawn, is a- deposit ol goods, a r%ht of redemption, on prescribed conditions.

Delivery accompanies a pledge, and is essential to its exist-J . r . , 0 ence. Only a ■ special property passes to the pledgee; wtiile the general property remains with the pledger.— Cortleyou v. Lansing, 2 Cain’s Cases. The bill of sale from Williams to Rorer is absolute on its face, and conveys the general property to him j there-is nothing in it or the subsequent agreement, which shows that Williams intended merely a delivery of the mare to be kept for the security of a debt. If the general property passed, then the transaction is a mortgage, and not a pledge. In the case of Deslodge and Rosier v.

Ranger, 7 vol. Mo. R., we held an agreement very similar to the present, to be a mortgage. There is no doubt of the correctness of the position assumed by counsel for the plaintiff in error, that in the case of a pledge, the party has a right to redeem after the appointed time ; and if he will make a tender of the debt, he may, both at law and in equity, recover the value of the pledge, although the time of the redemption agreed on by the parties has elapsed.

But in the case of a mortgage, if there is a given time for redemption, the title of the mortgagee becomes absolute at law, if the mortgagor fails or neglects to redeem, or offer to do so, at the stipulated time, and he is driven to equity for relief. Story on Bailment. If, then, this transaction was a .mortgage, the plaintiff, . . . ..... .. . , ■ , . . . . in order to maintain his action at law, should have shown a payment within the time, or an offer to do so, or some L J. ... sufficient reason for his failure, caused by the conduct of the mortgagee.

The offer to pay the debt on the first day of June, was too late; it was not within the time prescribed ; and although the tender was made in bank bills, yet such a tender is always good, unless it is objected to for the reason that it is made in bank paper. But it is said by the plaintiff, that he was released from the obligation of making a tender of the debt, because before the time for redemption had elapsed, the defendant sold the mortgaged property. It is a general principle that the law does not require a party to do a nugatory act.

And if an individual has disqualified himself to comply with his contract, a demand would be a needless formality. It has been held, that, if a pawnee of chattels disposes of them without notice to the pawnor, no tender of the debt is necessary before instituting the suit, becanse he has incapacitated himself to perform his contract to return the pledge. Cortleyou v. Lansing, 2 Cain’s Cases. The disposition of the mare made by Rorer was not such a one as prevented him from complying with his undertaking to Williams, had he returned, or offered to return, the money.

The witness to whom the mare was sold states expressly that she was to be returned to Rorer in the event of an application by Williams to redeem within the prescribed time. It cannot then be said that Rorer had incapacitated himself to comply with his contract, nor does it appear, but that, if the money had been tendered in time, the mare would'have been restored to Williams. Williams, then, having let the time of redemption pass, the title of Rorer to the mare became absolute at law.

A tender after the day, was insufficient to divest him of the property, and his only recourse was to a court of equity, one of whose maxims is, “once a mortgage, always a mortgage.” Judgment affirmed. Napton, Judge, absent from the bench..