Canfield v. Conkling

2 N.W. 191, 41 Mich. 371, 1879 Mich. LEXIS 859

Opinion

Per Curiam.

The tender in this case was large enough to meet all that was actually due, unless the attorney fee mentioned in the mortgage was recoverable. We are satisfied the mortgagee never meant to accept a tender of any less, and he had done nothing which entitled him to this fee (if it was recoverable at all) under the rules laid down heretofore and especially in Myer v. Hart, 40 Mich., 517. He was bound to accept the tender, and complainant had made out a sufficient case for relief. But the question was one on which he might be mistaken without any serious fault, and we do not think it one where the mortgage ought to be held cancelled without payment, nor is it a case calling for the statutory penalty for a willful and knowing wrongful refusal to discharge the mortgage. On the other hand we do not think it proper to inquire into the alleged usury in the debt. Complainant has seen fit to place his claims to relief on a tender, and has kept this tender good and offered to pay it over at any time. We think he must keep to this offer and pay it. Defendant must discharge the mortgage on payment of the sum tendered less the costs of both courts, to which complainant is entitled, inasmuch as he made out a good case.