John O. Matthews et al., Appellants, vs. Wm. B. Lindsay et als., Appellees, 20 Fla. 962

The Chief-Justice delivered the opinion of the court. The first ground on which appellants pray a reversal of the decree is that the court erred in sustaining the demurrer to Harris’ cross bill. This cross bill alleged that by the tenders by Matthews the lien of the mortgage was extinguished ; that he had become the owner of Matthews’ in-est by his sheriff’s deed under executions against Matthews, and he prayed a partition as between himself and complainants.

As to the tenders, without examining .the question as to the amount tendered, the allegations and proofs show that Matthews offered complainants the money, but the tender was not followed by a proferí in curia. Such a tender was held to be ineffectual in Spann vs. Baltzell, 1 Fla., 301; Forcheimer vs. Holly, 14 Fla., 239; Co. Litt., 207, a. But it is argued that the tender discharged the mortgage. A mortgage is but a security for the payment of the debt mentioned in it. That which discharges the debt will discharge the mortgage lien.

To discharge the debt by a tender, such tender must be kept good, and a plea of tender, as has been decided in the above cited cases, is ineffectual unless it appear that the-creditor can have, his money when he wants it. “ It ought to appear that the mortgagor from that time [of the tender] always kept the money ready,” otherwise the interest will run on. Gyles vs. Hall, 2 P. Wms., 378, per Lord Chancellor Hardwicke.

Should the mortgagee, after tender and refusal, demand his money and find the mortgagor not ready to pay in accordance with his previous tender, interest will run on as if no tender had been made, until the money is paid or brought into court. Columbian B. Asso. vs. Crump, 42 Md., 192. “The appropriate office of a tender is to relieve the debtor from subsequently accruing interest and the costs of enforcing, by a suit, the obligation which by the tender of payment he was willing to perform.

The debt still remains. * * * The tender does not pay or discharge the debt; and though it will avail to arrest the accruing of interest and to free the debtor from costs, it will be deprived of that efficacy by a subsequent demand and refusal. If legal analogy is to be pursued, it could lead no further than to deprive' the mortgage of operation beyond the amount due when the tender was made, leaving the question of subsequently accruing interest and costs to be varied by the subsequent demand and refusal.

The instances in which a tender and refusal amount to payment and will operate as an extinguishment, are those in which the obligation is in the nature of a gratuity, without any precedent debt or duty, and the discharge is an accidental and not a necessary consequence of the tender and refusal, there being no debt or duty remaining whereon to ground an action.” 6 Bac. Abr., 456, tit. Tender; Shields vs. Lozear, 34 N. J. L., 505-6.

The rule prevailing in Kew York and in Michigau that a tender after a debt became due operates to discharge the mortgage and to leave the mortgagee only a personal remedy for his debt, has not been adopted in other States. Says the court in Crain vs. McGoon, 86 Ill., 433: “We fail to appreciate why a court of equity, while interposing its authority to mitigate the rigor of the common law rule against the mortgagor, should, at the same time, extend and make more rigorous the rule against the mortgagee. We do not perceive how this can be said tó be in pursuance of the natural principles of justice.

If a tender is made but not accepted, and is kept ■ good, it is plainly right that the mortgagee shall have only the tender. The mortgagor has been deprived of the use of his money and the mortgagee has had ample time to reflect upon, his rights and has been at liberty to have them, whenever he would, by the acceptance of the tender.

But when the tender is not kept good the mortgagor has the use of the money and fhe mortgagee, however ill advised he may have been at the time of tender, has no opportunity for revising and reconsidering his judgment and thereafter accepting the money tendered. * * When it is reflected that no serious hardship is imposed on a party making a tender by requiring him to keep it good, it would seem clearly unjust, under circumstances like those alluded to, to require a party to whom a tender is made, after the day of payment has passed, to elect at once to accept or reject it, at the peril of losing his security if he misjudges as to his rights. * * The policy of the courts of equity is against forfeitures; and in this State, to discharge the mortgage would be, in very many instances, in effect to forfeit the debt.

We think the preferable rule is, where the tender is made after the day the debt secured by the mortgage is due, to require that it shall be kept good in order that it may operate to discharge the mortgage.” A tender, to be effectual, as has been decided in this State, must be kept good ; there must be profert in curia. Otherwise the debt is not discharged, nor is the interest stopped.

If a mere tender and refusal of it operates to discharge the debt or the security, a subsequent demand or an offer to accept the money would not create a right of action at law or in equity, because the debt has ceased to exist as the result of the tender. If there be a tender and a refusal of it, and the creditor afterward sues, a plea of tender with profert and bringing the money tendered into court will give effect to the tender and extinguish the debt and the security.

As to Harris’ title under the sheriff’s deed, while it may be good as against Matthews, (though we cannot determine it here) yet it cannot avail as against the mortgage. Matthews never had a title or right which was not from its inception subject to the payment of the money demanded by complainants. As to the prayer by Harris for a partition, it cannot be entertained in this suit brought to foreclose a mortgage on the very land he claims. Buckmaster vs. Kelly, 15 Fla., 199; Mattair vs. Payne, Id., 685. The .cross bill seeks to put in issue and establish his legal title.

This must in all such cases be established or unquestioned before partition can be had. The second error alleged is in sustaining the demurrer to Matthews’ cross bill.

This cross bill alleges that by reason of the refusal of complainants to accept the tenders and their assertion of title, their bringing suit against him to recover possession under their mortgage, driving him to bring suit to enjoin their suits at' law, slandering and clouding his title and destroying his credit, and putting -Jiim to great trouble, annoyance and expense in defending and prosecuting his rights, all on account of the illegitimate and wrongful claims and conduct of the complainants under the mortgage, he has sustained great damage and expended large sums of money, to an amount larger than their demand, and prays that the same may be set-off against the mortgage debt.

The claims sought to be set-off are for tort. It is not a debt or demand capable of computation as in matters of contract. Damages arising out of tort are not the subject of set-off, either at law or in equity. 7 Wait’s Act. & Def., 483, and citations. Our statute prescribes that debts or demands mutually existing between the parties shall be proper subjects of set-off. A set-off can be allowed in an action on contract of matters only growing out of contract. Robinson vs. L’Engle, 13 Fla., 482. The third ground of error is the refusal of the court to allow Matthews to file an amendment to his answer.

The amendment offered was a repetition, in more detail, of his plea of set-off and it was rightly refused. The fourth ground of appeal is that the court allowed complainants’ solicitors to read upon the final -hearing a copy of the record of the judgment of Williams vs. Matthews, as it had not been offered in evidence before the Master who took the testimony. This was within the discretion of the court. 1 Daniel Pr., 890.

But even if the court had been wrong, the paper offered was of no consequence and the existence of the record of the judgment was immaterial for any pui’pose in this case and no error in the decree was occasioned by putting in the paper. The fifth ground is the admission in evidence of the original deed of Matthews to complainants without proof of its execution. This might have been error if it was material to have the original deed before the court for the purposes of the case.

The defendants had in their pleadings and in Matthews’ testimony admitted the execution of the deed, though denying its delivery to complainants. The deed itself if proved did not show,anything not admitted by defendants in their answers, to wit: that it had been signed, and the description of the land. The question of its delivery was fully investigated without its presence, its existence and contents being admitted by both parties. Its in troduction having been unnecessary and immaterial to either party, no error in the decree did or could flow from it.

The sixth and seventh grounds are the sustaining the exceptions to the report of the master and in rendering the final decree against the defendants. These grounds involve a consideration of the whole evidence material to the case. The record is comprised of over 550 pages and we have read and considered the whole of it, but we cannot be expected to quote or recapitulate it. It would unnecessarily swell the volume of the report of the case without benefit to any one. The master reported in favor of the defendants.

The Chancellor took an opposite view of the case, set aside the conclusions of the master and decreed the prayer of the complainants. Our conclusions are that the complainants established their mortgage and the debt secured by it; that the debt remains unsatisfied; that Matthews’ several tenders were ineffectual to destroy the lien of the mortgage or to abate the interest accruing after tender for the reason that the tender was not kept good by paying the money into court. The defendant cannot be allowed thus to destroy the mortgage and keep his money beside.

The parties had made and signed December 3, 1875, an agreement in writing to make a partition of their joint possessions ; a survey was made of which both parties had copies written by Matthews and the one in the hands of complainants is certified by Matthews to be a true copy, which bears date December 6th, 1875, on the back of which are figures in Matthews’ handwriting indicating the quantity of land each party would get by the division line as run by the surveyor, to wit: 91 and 79; the quit claim deeds executed by the parties December 25, 1875, were drawn in the handwriting of Matthews, describing the division line as in the surveyor’s certificate, conveying to complainants ninety-one acres, and to Matthews seventy-nine acres ; both parties occupying and improving thereafter on their respective sides of this line > complainants building a fence on the line in the presence of Matthews without his objecting; all these facts, fully established by the proofs, show that the deeds were the deliberate acts of the parties.

But Mr. Matthews says that according to their agreement of December 3, 1875, complainants were to have but six acres more than himself and that the deeds after being executed were not delivered to the respective releasees, but were mutually delivered to a custodian in escrow, and not to he delivered until a satisfactory survey should be made, and knew nothing of any survey being made after the agreement, and before executing the deeds.

But the facts appear that he drew up the deeds from a definite certified survey on December 25, copying the description of the dividing line from the surveyor’s certificate dated December 6th, 1875, some days after the date of the agreement to.make division, the deeds specifying the acres in each portion conveyed. The proof is overwhelming that the deeds were delivered to and received by the respective releasees after being executed, and afterwards on the same day were delivered by them severally to a third party for safe-keeping, not in escrow, with no condition except they were to be kept till called for.

Both deeds were afterwards delivered by mistake by the depositary to one of the complainants, who carried them away and who sent the deed executed by complainants, as soon as he discovered he had it, to a person in Ocala to be delivered to Mr. Matthews and it was subsequently left at the clerk’s office for him, where he found it. Again, Mr. Matthews, after this, drew up a mortgage from himself to another party on the land, describing it as seventy-nine acres, not as an undivided half of any parcel, but as his several property.

He also testifies that his attention was first called to the fact that his deed called for seventy-nine acres only, instead of what he was entitled to, several years afterwards by his attorney and about the time the bill in this case was filed. There is a large mass of testimony in the record to which it is unnecessary to refer farther. According to the Whole evidence the delivery and acceptance of the deeds is proved by a very strong preponderance of evidence; such a preponderance as would inevitably control the verdict of a jury. The decree is affirmed.