Pratt agt. Stiles. entitled cause is affirmed with costs; and the order appealed from in the second above entitled. cause is affirmed without costs to either party, on the appeal. SUPREME COURT. AVERY PRATT, respondent, agt. PHILANDER STILES and STEPHEN STILES, appellants. Although the mortgagee has the legal title to personal property under a mortgage, and the law day has passed for the payment of the money specified in the mortgage, yet, until foreclosure or sale, the right of redemption exists in equity. And, if the mortgagee sells the property, he will be liable to refund the excess over the mortgage debt, to the mortgagor. But the bill to redeem must be brought within a reasonable time. The facts in this case, as developed on the trial before the referee, present one where a private sale of the property was made under the mortgage by the mortgagee to a third person, and a tender by the mortgagor of the amount due after the law day had passed, and it was held by the referee, that the circumstances under which the sale was made rendered it void and of no effect, and the tender made by the mortgagor was held good. The question of costs of the trial, &c., in such a case, is properly within the discretion of the referee. Where the referee tried the cause upon the whole issues presented to him, and determined that the plaintiff was entitled to redeem, and ascertained and declared the amount he should pay, to fulfil such redemption, and decided that the plaintiff should recover the costs of the suit, and made, signed and delivered his report directing final judgment, Held, that this terminated the jurisdiction and powers of the referee. And where, several days after such report, the plaintiff, on application to the court, obtained an order for the referee to take an account of the value of the use of the horses (property in the mortgage) by the defendants, upon which the referee heard evidence and made a second or supplemental report, Held, that such last order of reference was irregular. The plaintiff not having made the offer on the trial of the issues, to have the ref eree take such account, there was no way in which the omission could be rectified, except by an application for a new trial, on the ground of newly discovered evidence, surprise or mistake. Pratt agt. Stiles. Monroe General Term, March, 1859. Present, T. R. STRONG, JOHNSON and SMITH, Justices. THIS action was brought to redeem a mortgage of personal property executed by the plaintiff to one Lucas, and by him assigned to the defendant, Philander Stiles. The mortgage is dated 1st of March, 1855; it transfers a span of bay horses with other property; and is conditioned, among other things, for the payment of $150, to the mortga gee, on the 1st of July, 1855, with one year's interest. It provides, that in case of non-payment at that time, the mortgagee may take possession of the mortgaged property, sell it, and apply the avails (after deducting expenses of sale and keeping) in payment of the debt; and that in case the mortgagee shall at any time deem himself insecure and unsafe, he may take possession of the property, sell it at public or private sale, previous to the time above mentioned for the payment of the debt, and apply the proceeds as aforesaid. And it contains a covenant by the mortgagor to pay any deficiency of debt, interest, costs and charges. The plaintiff paid ten dollars on the mortgage about the 1st of July, 1855, but nothing more, previously to the tender hereinafter mentioned. The plaintiff was a farmer; these horses were his only team; and he retained possession of them, until the defendants took them from him in December, 1856, as hereinafter stated. They were worth $250. The mortgagee was a brother-in-law of the plaintiff, and, not liking to force him to pay, he sold the mortgage to the defendant, P. Stiles, November 12th, 1856. In about a week the plaintiff first learned that Stiles had bought the mortgage, and immediately went to see him. In that interview, Stiles did not ask for immediate payment, on the contrary, he expressed a willingness to wait till the next January. On Friday, the 12th of December, following, nothing else having passed between them, Stiles went to the plaintiff's Pratt agt. Stiles. house, and said he had come for the horses, but consented to let them remain with the plaintiff on his promising to pay him on Saturday night of that week. The amount then due was about $165. On Saturday the plaintiff got $170 in money. About two o'clock he met Stiles at Cheshire, told him he then had $100, and that if he would wait till he saw one Booth, who lived about a mile from there, he would pay him the whole. Stiles said he could not wait, and told plaintiff to come to his house that evening. Plaintiff then went to Booth's and got the rest of the money, and in the course of the day started to go to Stiles' with the money to pay him, and, being told by Chamberlain that Stiles was at Canandaigua, did not go to his house. Chamberlain had left Canandaigua about 5 o'clock, and saw Stiles there shortly before he left. As the plaintiff was returning home about 8 o'clock, he met both defendants in the road with one of the horses, which they had taken from his premises in his absence. They demanded the other horse, which plaintiff was driving. Philander took the horse by the bit, and told plaintiff he had not come as he agreed; plaintiff said he had started for Philander's house, and learned he was not at home, but at Canandaigua; and Philander said he had been to Canandaigua; but was at home from 5 o'clock till 8. The plaintiff had the money in his pocket, and told Philander it was all ready for him; Philander asked if it was paper money; plaintiff said it was, and asked if that was not good; Philander said it was, but he wanted the other horse. They all then drove to Chamberlain's house, and Chamberlain, at plaintiff's request, came out and told Philander that plaintiff proposed to pay him the money, and offered it to him, and Philander replied that he did not take rags, but that it was too late, and if it was gold he would not take it, as he had sold the horses to Stephen. He also said that if Pratt "had been over to his house with the specie at sundown, he would have been smart, but he was too late." The defendant refused the money, unharnessed the horse Pratt was driving, and took both horses away. After Stephen had got possession of the horses, Phi Pratt agt. Stiles. lander said to plaintiff that, if he would give up a certain suit which was then pending against Philander about some hay, he would take the money and give up the horses but plaintiff replied he had nothing to do with the suit-and Philander then said he would not give up the horses. On Monday the defendants again refused to take the money. On Tuesday, the plaintiff tendered to Philander, at the Bank of Canandaigua, $170 in specie, in payment of the mortgage and expenses, and demanded the horses, and offered to redeem them, which sum was sufficient, but the defendant refused to receive it, or permit the plaintiff to redeem. On the next day he made the same tender to both defendants, at Huntley's office, but they refused. After this tender, plaintiff told the defendant he should deposit the money in the Bank of Canandaigua, and did so, and directed the bank to let the defendants have it when called for. It remained there till the bank suspended in September, 1857, when, to save it, a note was taken for it against one Jones. The circumstances attending the sale from Philander Stiles to his brother, which the referee held collusive and void, were these. After the plaintiff met Philander at Cheshire, on Saturday, and told him he had $100, and requested him to wait till he could go to Booth's and get the balance, Philander went to Canandaigua, took counsel, and was advised that he had a right to take the horses and sell them. He did not return till dark, and about eight o'clock he went to Stephen's and asked him if he did not want to buy Pratt's horses at the sum due on the mortgage, $165 and some cents. Pratt had agreed to bring them or the money at sundown, and he had not come, and he was going to take them. Stephen said he would take them, if Philander would stand between him and all harm. They went to Pratt's barn, and Stephen said he would take them, that they were cheap enough at that price-and he then took one of the horses-and afterwards took the other from Pratt, as before stated. Philander also said they were a cheap team, worth more than the mortgage, and, if Stephen He told Stephen that Pratt agt. Stiles. did not buy them, he would sell them to some one else. Stephen paid nothing for them that night. Some time afterwards (Stephen thinks it was the next Monday), he gave Philander his note for the horses, due in sixty days. That was torn up, and in July, 1857, he gave a new note, payable the next July. Philander said on the trial he had "disposed" of it, but in what way he disposed of it did not appear. Chamberlain testified that, when he asked Philander if he claimed to have taken the horses, he replied that if he had not he would, and he then directed Stephen to take them. Chamberlain's son testified to the same. After Stephen had taken the horses, Philander proposed, on certain conditions, to call Stephen back, take the money, and give up the horses. Huntley testified that when plaintiff made the tender at his office, Stephen did not say much, but Philander said to him, "I don't want the money, do you?" and witness did not hear Stephen's answer, it was so low. The Sunday after the horses were taken, Stephen told Booth, that it was not for him to decide whether to take the money offered by Pratt, he had no authority to do anything about it. In July, 1857, Philander took the horses to his own farm, and used them; and Stephen instructed the witness Doolittle to say to Philander, in case he spoke of their being poor, that they did not do anything only get the grain they ate. Philander took the team again, in December, 1857, and kept and used them till the time of the trial, in March, 1858. On this state of facts, the referee held, that the plaintiff had a right to redeem; that the sale to Stephen was void; that the tender was sufficient; and that the defendants having unreasonably refused it, they should pay costs. On the coming in of his report, the court ordered that he take proofs, and report the value of the use of the horses since the commencement of the action. The referee found the value of the use to be 116 dollars and 25 cents. From the judgment entered on the referee's reports, the defendants appeal to the general term. |