Page:Harvard Law Review Volume 10.djvu/103

77 A BRIEF SURVEY OF EQUITY JURISDICTION. 77 Upon authority, the question must be answered in the affirmative in respect to pledges/ but in the negative in respect to Hens,^ though there seems to be no good reason for such a distinction. There is not hkely to be any occasion for equity to interfere in favor of the owner of the property, in cases of pledges or liens, unless there is a controversy between him and the creditor as to the amount of the debt; for, if there be none, the former should pay the debt, and then he can recover the property at law. If there is such a controversy, however, or if for any reason the credi- tor refuses to accept payment, the owner of the property is entitled to file a bill to have the amount of the debt ascertained and de- clared, and to have the property restored to him on his paying or tendering such amount.^ In the case of ordinary mortgages, indeed, a tender has the same effect as actual payment, so far as regards the mortgaged property. If made on the day named in the mort- gage deed, either payment or tender will devest the title of the mortgagee, and revest the title of the mortgagor, while, if made after that day, neither will have any legal effect upon the title to the mortgaged property ; and the reason is that a mortgage is a conveyance of the legal title to the mortgagee, subject to its revest- ing in the mortgagor on performance by him of a condition subse- quent, namely, making payment of the debt on the day named, and only in that event; and, though actual payment alone will be a performance of that condition, yet a tender and refusal will be a good excuse for non-performance, and so will have the same effect as performance.^ In the case of a pledge or lien, however, while ^ There are numberless dicta to the effect stated in the text, and that such is the law there can be no doubt ; and yet, strange as it may seem, the writer has not found a single authority directly in point. Kent says (2 Com. 582) the pawnee "may file a bill in chancery, and have a judicial sale under a regular decree of foreclosure; and this has frequently been done in the case of stock, bonds, plate, and other chattels, pledged for the payment of debt." All the cases which he cites, however, are cases of bills by pledgors to redeem the property pledged. 2 T. I. W. & S. Co., Lim., V. P. D. Co., Lim., 29 L. J. Ch. 714. Though the decision in this case is in point, the reason given for it is so extraordinary (namely, that the lien did not confer upon the creditor a power of sale), that it ought not, it seems, to be regarded as settling the question. Presumably, it was because the creditor could not make a sale by his own authority that he applied to the court for a judicial sale. 8 Demandray z/. Metcalf, Ch. Prcc. 419; Kemp v. Westbrook, i Ves. 278; Vander- zee V. Willis, 3 Bro. C. C. 21. payment thereof : if A tender the money to B, and he refuseth it, A may enter into the land, and the land is freed forever of the condition, but yet the debt remaineth, and may be recovered by action of debt." Co. Litt. 209 b.
 * " If A borroweth 100 £ of B, and after mortgageth land to B, upon condition for