Baldwin, J.
delivered the opinion of the Court—Cope, J. concurring.
Antonio Maria Castro executed on the 13th of August, 1852, a bond to John Davis for three thousand dollars, payable in three [527]*527years, with ten per cent, per month interest, and, to secure this sum, executed at the same time a mortgage upon one-half of the undivided interest of Castro in the estate of his late father, called the San Pahlo Ranch. This ranch contains four and a half leagues. This land the mortgagor held in common with his brothers and sisters, seven in number, “it being understood,” the deed recites, “ that the quantity conveyed shall not exceed the one-sixteenth part of the San Pablo Ranch, or fourteen hundred acres.” Then follows in the deed a specified parcel of the ranch, represented to contain one thousand acres, more or less.
On the same day with the mortgage, Castro made to Davis and Provizza a written lease for the period of three years, which, in its recital, refers to the mortgage, and describes the mortgaged premises as one-half of his interest in the San Pablo Ranch. It also refers to the specific quantity of one thousand acres. This paper provides that Davis and Provizza shall immediately take possession, and Castro covenants that they shall have the peaceable and quiet possession of the premises during the term of the lease. Davis and Provizza stipulate that if they have such possession they will remit the interest on the bond and mortgage for the three years; but if they should be interrupted in their possession, then the full amount of principal and interest shall become due. Also, that if Castro cannot pay the mortgage at the expiration of the term, both the term of the lease and the time of the mortgage shall bo extended one year longer, with the same conditions as to peaceable possession. The lease was not recorded, and it does not appear that the Respondent, prior to its being set up by the Appellant, had any knowledge of its existence. On the 9th of November, 1857, Davis assigned, under seal, to the Respondent, the bond and mortgage. On the 15th of December, 1854, Castro executed a second and subsequent mortgage of his entire interest in the San Pablo Ranch. Bradley and King became the holders of the mortgage and foreclosed. Provizza, Piper, Mathewson, Galvin, Emeric, and Tewksbury, through divers mesne conveyances, acquired various interests. Provizza is joined as defendant by reason of the apparent legal estate vested in him under the first mortgage as one of the mortgagees.
Davis and Provizza were interested together as partners about the time of the execution of this mortgage, in certain farming [528]*528.operations, on land in the San Pablo Ranch. Davis advanced to Castro three thousand dollars, or more, as a loan, and was to receive a mortgage on the land of Castro as security; also, a lease of a particular tract of agricultural land, which Castro was represented to own or control, with possession. Davis and Provizza came to a settlement of the firm matters, the result of which was the concession and agreement that Davis was entitled, as sole owner, to this mortgage debt due from Castro, and the Court below finds that he was equitably the owner, though no formal or written assignment seems to have been made to him by Provizza.
On the 81st of January, 1857, Piper and Mathewson—Tewksbury refusing to join—tendered, or attempted to make a tender to Provizza and Davis of the mortgage money, which was refused. The sum of three thousand two hundred dollars, in a bag, was offered, as appears by the proof. Emeric, who was a party defendant, was offered as a witness. Emeric held a mortgage on a portion of the premises, dated February 1, 1858; he discharged it July 23d, 1858. This was after the filing of the bill, but before service of process. He made no defense, and filed a disclaimer. But the Court rejected him as incompetent. It is not necessary to consider the question as to his competency, for we shall place the decision upon grounds broad enough to cover the case as made by his evidence. It will be perceived that the tender was made after the expiration of the three years mentioned in the lease, and also after the expiration of the one year of renewal—■ a period which was also subsequent to the assignment by Davis to the plaintiff.
The counsel for Appellant contends that this tender was sufficient in itself, and that the effect of it was to discharge the lien of the mortgage, and this though the law day of the mortgage had passed.
This proposition has been the one most elaborately argued by the respective counsel. We have considered it with care. It is very true that the proposition affirming this effect of a tender has the sanction of several decisions of the Courts of New York. In Jackson v. Crafts, (18 Johns. 110,) it was held that the tender and refusal, though after the law day of the mortgage, amount to a discharge. But this doctrine, though afterward apparently [529]*529affirmed in Edwards v. Farmers’ Insurance & Loan Co. (21 Wend.) was disputed by Mr. Justice Bronson in an able dissenting opinion. That case came before the Court of Errors, and is reported in 26 Wend. 451. Chancellor Walworth, who held in Merritt v. Lambert, (7 Paige, 344,) that the rule was otherwise, adhered to that opinion, observing “that it would remain for the other members of this Court to decide whether the Vice-Chancellor, and Mr. Justice Bronson and myself on the one side, or the two other Justices of the Supreme Court on the other, have taken the correct view of the important legal questions involved in the case.” Upon the vote the Chancellor and seven Senators voted for reversal. The President and. ten Senators for affirmance.
In the case of Arnot v. Post, (6 Hill, 67,) the same point came up, and Mr. Justice Bronson acquiesced in the doctrine of Jackson v. Crafts—saying, however, “that it was a decided departure from the old law.” But in Post v. Arnot, (S. C. 2 Denio, 344,) the point was made again. Several Senators delivered opinions condemning the doctrine of Jackson and Crafts, Mr. Senator Johnson among them, whose reasoning was addressed to show that Mr. Justice Woodworth had misapprehended the doctrine in Bacon and Viner, upon which, in great part, he predicated his opinion in Jackson v. Crafts. Although the question was not precisely the same as in the case of Jackson and Crafts—the point being as to the effect of a tender after a sale under decree of foreclosure—yet that case is a strong authority for holding the decision in 18 Johns, to be erroneous. Post v. Arnot reverses the judgment of the Supreme Court in 2 Denio. It may therefore be set down as certain that the case of Jackson v. Crafts is, as mere authority, so shaken, if not overruled, as to be of little or no weight in this discussion. The case in 21 Wend, though apparently affirming that in 18 Johns.'is shown not necessarily to have involved the principle held in the latter case.
In Merritt v. Lambert, (7 Paige, 344,) Chancellor Walworth clearly and ably reviews the case of Jackson and Crafts, and exposes the error upon which the opinion of the Court rests.
Authorities maintaining the opposite doctrine -to that held in 18 Johns, are numerous. (Maynard v. Hunt, 5 Pick. 242; Crosby v. Chase, 17 Maine, 371; 3 Mass. 559; 18 Id. 419.)
[530]*530The rule is the same in England. In Horner v.
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Baldwin, J.
delivered the opinion of the Court—Cope, J. concurring.
Antonio Maria Castro executed on the 13th of August, 1852, a bond to John Davis for three thousand dollars, payable in three [527]*527years, with ten per cent, per month interest, and, to secure this sum, executed at the same time a mortgage upon one-half of the undivided interest of Castro in the estate of his late father, called the San Pahlo Ranch. This ranch contains four and a half leagues. This land the mortgagor held in common with his brothers and sisters, seven in number, “it being understood,” the deed recites, “ that the quantity conveyed shall not exceed the one-sixteenth part of the San Pablo Ranch, or fourteen hundred acres.” Then follows in the deed a specified parcel of the ranch, represented to contain one thousand acres, more or less.
On the same day with the mortgage, Castro made to Davis and Provizza a written lease for the period of three years, which, in its recital, refers to the mortgage, and describes the mortgaged premises as one-half of his interest in the San Pablo Ranch. It also refers to the specific quantity of one thousand acres. This paper provides that Davis and Provizza shall immediately take possession, and Castro covenants that they shall have the peaceable and quiet possession of the premises during the term of the lease. Davis and Provizza stipulate that if they have such possession they will remit the interest on the bond and mortgage for the three years; but if they should be interrupted in their possession, then the full amount of principal and interest shall become due. Also, that if Castro cannot pay the mortgage at the expiration of the term, both the term of the lease and the time of the mortgage shall bo extended one year longer, with the same conditions as to peaceable possession. The lease was not recorded, and it does not appear that the Respondent, prior to its being set up by the Appellant, had any knowledge of its existence. On the 9th of November, 1857, Davis assigned, under seal, to the Respondent, the bond and mortgage. On the 15th of December, 1854, Castro executed a second and subsequent mortgage of his entire interest in the San Pablo Ranch. Bradley and King became the holders of the mortgage and foreclosed. Provizza, Piper, Mathewson, Galvin, Emeric, and Tewksbury, through divers mesne conveyances, acquired various interests. Provizza is joined as defendant by reason of the apparent legal estate vested in him under the first mortgage as one of the mortgagees.
Davis and Provizza were interested together as partners about the time of the execution of this mortgage, in certain farming [528]*528.operations, on land in the San Pablo Ranch. Davis advanced to Castro three thousand dollars, or more, as a loan, and was to receive a mortgage on the land of Castro as security; also, a lease of a particular tract of agricultural land, which Castro was represented to own or control, with possession. Davis and Provizza came to a settlement of the firm matters, the result of which was the concession and agreement that Davis was entitled, as sole owner, to this mortgage debt due from Castro, and the Court below finds that he was equitably the owner, though no formal or written assignment seems to have been made to him by Provizza.
On the 81st of January, 1857, Piper and Mathewson—Tewksbury refusing to join—tendered, or attempted to make a tender to Provizza and Davis of the mortgage money, which was refused. The sum of three thousand two hundred dollars, in a bag, was offered, as appears by the proof. Emeric, who was a party defendant, was offered as a witness. Emeric held a mortgage on a portion of the premises, dated February 1, 1858; he discharged it July 23d, 1858. This was after the filing of the bill, but before service of process. He made no defense, and filed a disclaimer. But the Court rejected him as incompetent. It is not necessary to consider the question as to his competency, for we shall place the decision upon grounds broad enough to cover the case as made by his evidence. It will be perceived that the tender was made after the expiration of the three years mentioned in the lease, and also after the expiration of the one year of renewal—■ a period which was also subsequent to the assignment by Davis to the plaintiff.
The counsel for Appellant contends that this tender was sufficient in itself, and that the effect of it was to discharge the lien of the mortgage, and this though the law day of the mortgage had passed.
This proposition has been the one most elaborately argued by the respective counsel. We have considered it with care. It is very true that the proposition affirming this effect of a tender has the sanction of several decisions of the Courts of New York. In Jackson v. Crafts, (18 Johns. 110,) it was held that the tender and refusal, though after the law day of the mortgage, amount to a discharge. But this doctrine, though afterward apparently [529]*529affirmed in Edwards v. Farmers’ Insurance & Loan Co. (21 Wend.) was disputed by Mr. Justice Bronson in an able dissenting opinion. That case came before the Court of Errors, and is reported in 26 Wend. 451. Chancellor Walworth, who held in Merritt v. Lambert, (7 Paige, 344,) that the rule was otherwise, adhered to that opinion, observing “that it would remain for the other members of this Court to decide whether the Vice-Chancellor, and Mr. Justice Bronson and myself on the one side, or the two other Justices of the Supreme Court on the other, have taken the correct view of the important legal questions involved in the case.” Upon the vote the Chancellor and seven Senators voted for reversal. The President and. ten Senators for affirmance.
In the case of Arnot v. Post, (6 Hill, 67,) the same point came up, and Mr. Justice Bronson acquiesced in the doctrine of Jackson v. Crafts—saying, however, “that it was a decided departure from the old law.” But in Post v. Arnot, (S. C. 2 Denio, 344,) the point was made again. Several Senators delivered opinions condemning the doctrine of Jackson and Crafts, Mr. Senator Johnson among them, whose reasoning was addressed to show that Mr. Justice Woodworth had misapprehended the doctrine in Bacon and Viner, upon which, in great part, he predicated his opinion in Jackson v. Crafts. Although the question was not precisely the same as in the case of Jackson and Crafts—the point being as to the effect of a tender after a sale under decree of foreclosure—yet that case is a strong authority for holding the decision in 18 Johns, to be erroneous. Post v. Arnot reverses the judgment of the Supreme Court in 2 Denio. It may therefore be set down as certain that the case of Jackson v. Crafts is, as mere authority, so shaken, if not overruled, as to be of little or no weight in this discussion. The case in 21 Wend, though apparently affirming that in 18 Johns.'is shown not necessarily to have involved the principle held in the latter case.
In Merritt v. Lambert, (7 Paige, 344,) Chancellor Walworth clearly and ably reviews the case of Jackson and Crafts, and exposes the error upon which the opinion of the Court rests.
Authorities maintaining the opposite doctrine -to that held in 18 Johns, are numerous. (Maynard v. Hunt, 5 Pick. 242; Crosby v. Chase, 17 Maine, 371; 3 Mass. 559; 18 Id. 419.)
[530]*530The rule is the same in England. In Horner v. Priestly, (21 Eng. L. & E. R. 497,) held, that the mortgagees were entitled to a decree for account of the principal, interest, and costs; and that after tender, if the principal did not appear to be lying idle, the interest must be continued to the time of taking the account, and that if the sum tendered did not amount to the sum due, the plaintiff must pay the costs; but if it exceeded the amount found due, the defendants must pay the same.
The proposition stands as clear for the Respondent upon its equity as upon authority. The debtor is as much in default for not paying when the debt is due as the creditor is in default for not receiving the money afterward when offered. 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, as 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. We think therefore that the tender was not effectual to discharge the lien.
The next question is as to amount. The decree is for interest at the agreed rate in the note, from the time of the notice of the assignment of the Davis bond and mortgage to the plaintiff. It has been seen that the lease provided for the extinguishment of the interest, or was the consideration for such extinguishment. But the term of the lease had expired before this notification, and, indeed, the whole interest of the lessor, Castro, had before that time passed to other hands. Conceding that the plaintiff is bound by this agreement, as to the lease and as to the interest, Davis and Provizza could not, after the assignment, especially after notice .of if to these parties, continue after the expiration of the lease to occupy the premises, and thus, in effect, make a new contract, which bound the plaintiff, the assignee of the bond, and prevent her from enforcing the contract according to its terms. If the mere remaining in possession of a part of the leased premises is to be adjudged a renewal of the lease upon its original terms, it is difficult to see how this renewal could be implied or take effect after both the parties to the lease had parted with all their interest in the subject matter of the lease and the consideration for it.
[531]*531Several other points are made, but they are more technical than sound, and we have not time, in the pressure of business, to examine them in detail. To show that we have not overlooked them, we merely say:
1. That, as to the objection that no transfer has been shown from Provizza to Davis, it does sufficiently appear that Davis advanced the money, and on settlement with Provizza, it was agreed that Davis was the owner of the debt, and that Provizza assents to this arrangement, and no one else has any interest in disputing the fact—the decree being a complete protection to the other parties, as Povizza is a party.
2. That there is no proof of collusion between Tewksbury and the plaintiff in the record.
3. That this whole tract, embraced within the mortgage, being at the time of the mortgage subject to the debt and lien, it is imposssible to apportion the debt among the several holders or claimants who subsequently acquired interests in the land, they having so acquired these interests at the same time. The rule invoked is absolutely impracticable, and would lead to endless confusion. If there be any rule of equitable apportionment in this instance, the record fails to give us the facts upon which we could apply it.
Decree affirmed.