The opinion
The opinion of the court was delivered by
Bennett, J.
The simple question in this case is, whether the plaintiff’s right of action is barred by reason of the tender, which is insisted upon in the defence. When the money was tendered, the note secured by the mortgage was demanded, and the defendant re *226 fused to part with the money, unless the note was surrendered. The note was at that time mislaid, but Seymour proposed to receive the money and discharge the note and mortgage; but the defendant declined to leave the money on such terms. This note was payable to Jesse Stratton or order, and has never been negotiated by the payee. The plaintiff might have recovered in an action at law upon the note, provided it had been shown to have been lost. The right of the holder, in such case, at law, is fully recognized in the case of Lazell v. Lazell, 12 Vt. 449 . If the plaintiff could maintain an action on the note, at law, upon proof of its loss, without producing it, it would seem that the defendant, to have such action, must have made an absolute and an unconditional tender. A tender, with a condition annexed to the acceptance, is invalid. The party has not a right to demand a receipt, or a surrender of the security, or obligation, upon which the money is tendered. Laing v. Meaden, 1 C. & P. 257. Evans v. Judkins, 4 Camp. 156. Cole v. Blake, Peake 180. Loring v. Cooke, 3 Pick. 51 . The case of Hansard v. Robinson, 14 E. C. L. 20, cited by the counsel for the defendant, is a case in which the lost paper had been negotiated, and it was correctly held, that in such case there could be no remedy at law. The remedy must be in equity, where it is within the province of the court to order an indemnity to be furnished against such out-standing paper, before the court will grant relief. In the case cited from Campbell’s Reports the paper had also been negotiated.
If the tender would not have barred an action on the note, much less would it bar an action of ejectment on the mortgage deed. The fact that Seymour offered to give a discharge of the note and of the mortgage is of no particular importance, except as it evinced a willingness on his part to make the defendant safe against any future attempt to enforce a second payment of the note.
We can see no ground for claiming that Seymour was an incompetent witness.
Judgment of the county court affirmed.