37 N.H. 549 | N.H. | 1859
The word tender, used in the statute, is a legal term, and ordinarily implies that the sum tendered is kept ready for the creditor, and that if the tender is relied on in a suit brought for the money, it must be pleaded with a proferí in curia. "Was it the intention of the statute that the money tendered by an execution debtor, to discharge his land from an extent, should be kept by him for the creditor, and brought into court, when relied on in a suit brought to recover the land ? Or is the extent absolutely avoided by the mere offer of tbe money, without any obligation on the part of the debtor to keep it for the creditor and produce it in court ?
There are some cases in which the mere offer of money discharges the party who makes the offer from all obligation to pay the money; as, where the monev tendered is not a sum due by the party tendering it, but the payment or tender of the money operates as a defeasance of some collateral obligation. In such case, if a suit is brought on the collateral .obligation, the money tendered cannot be recovered, because it is not part of the sum due by that contract; and, not being due by any other contract, the right to the money is forfeited and gone, by the refusal to accept it when tendered. Trevett v. Aggas, Willes 107; Cotton v. Cliston, Cro. El. 755; Bacon’s Ab., Tender, F ; Co. Lit. 207, a.
In such case it would seem that the party who refuses the money tendered loses it forever, as it is not due by any contract on which he can maintain an action to recover it, and the property in the money tendered does not pass by
Chipman, in bis work on contracts, 94 and 95, says, after an examination of tbe authorities : “ It is, then, perfectly clear that in tbe time of Coke tbe common law required that every plea of tender should contain an averment that tbe defendant is still ready to pay, or that tbe property is still ready, except in those cases only where tbe property was lost by tender and refusal';” and the general rule undoubtedly is that where a tender of money is made, it must be kept good, and tbe money brought into court when tbe tender is relied on in any legal proceedings, except in cases where tbe party to whom tbe tender is made loses tbe money by refusal to take it when tendered. In this case of an extent, if tbe creditor does not lose bis money and all remedy for bis debt, by refusing to take tbe amount when tendered, tbe general rule will apply, which requires tbe debtor, when be relies on tbe tender, to produce tbe money in court.
If we follow tbe literal language of tbe statute, tbe levy is to be void upon payment or tender of tbe appraised value of tbe land, and costs. It could not, however, have been intended that all tbe proceedings on tbe levy were to be wholly avoided by payment or tender, so as to revive tbe debt due by tbe judgment. On that construction tbe debtor, after having once paid tbe debt to tbe execution creditor, in discharge of tbe levy, would still be liable for tbe same debt on tbe judgment. Tbe statute provides in express terms that tbe land shall be set off in satisfaction of tbe execution. Tbe judgment, therefore, must be regarded as paid and satisfied, in whole or in part, as tbe case may be, by tbe levy, and tbe original cause of action is merged in the judgment. Tbe creditor, then, after tbe levy, can maintain no action for tbe recovery of tbe debt, which was satisfied by tbe levy; nor has be any remedy by coming on tbe money tendered; for I find no authority
When the amount of a judgment is paid by the debtor, after an extent on land, it must be regarded as the payment of a debt, and of a sum of money due from the judgment debtor to the judgment creditor. The money tendered must be considered as offered, not merely to save a forfeiture, but to pay the debt; and the rule which in such case requires the money tendered to be kept at all times ready for the creditor, is not peculiar to the common law, but is found in other codes, and is so much a dictate of natural justice that Chipman regards it as founded on natural law. Chipman on Contracts 78.
We cannot suppose it to have been the intention of the legislature that the judgment creditor, who, for any reason, might once decline to receive the money tendered, should forfeit his debt. The debt is not the less due. The moral obligation of the debtor to pay is certainly not diminished by his neglect to satisfy a just demand until the judgment has been extended on his land; and we are unable to discover any reason for supposing that the legislature intended to discharge the debtor, when they use the word tender in the statute, from the ordinary legal obligation of a debtor, who relies on the tender of money due,
The ease has a good deal of resemblance in substance to the payment or tender of money on a contract for the conveyance of land. The judgment has been satisfied by the levy; the title in the land has passed to the creditor, subject to the right of the debtor, under the statute, to pay the creditor the appraised value, within one year, and have the land back again, and on such payment or tender the statute provides that the creditor shall release his right to the land. In any proceeding to obtain a release under this provision of the statute, the debtor would stand in much the same situation as a purchaser, who had paid or tendered the liquidated price of land according to a Avritten contract for a conveyance, and brought his bill for specific performance. In such case, if the complainant relied on a tender of the money agreed to be paid for the land, his bill would be required to offer payment of the money tendered; and so in the bill or other proceeding to obtain a release after tender of the appraised value of land set off* on execution, I cannot doubt that the debtor would be required to show himself ready to pay the money tendered.
It is not easy to see how the debtor in this case would be more burdened or embarrassed by requiring him to produce the money tendered, than other debtors to whom the general rule is applied. He is not obliged to wait the movements of the judgment creditor; for if the creditor is in possession under the levy, the debtor may forthwith commence his action for the land, and bring the money tendered into court. In the present case it was not necessary for the debtor to delay, during his oavu life-time, and leave it for his heir to bring this suit. Instead of putting the money into the hands of a third person, there was nothing to hinder him from commencing his action immediately, and
Depositing the money tendered with a third person will not excuse the production of it, if otherwise necessary. The debtor being still bound, notwithstanding the tender, to pay the money due when demanded, could not transfer the obligation to another party. If the money were deposited in a bank of unquestionable credit, or were kept in specie by the debtor, and in either case lost by unforeseen accident, we are not now called upon to say whether the debtor might not, by showing that state of facts, excuse himself from producing the money. But the, fact stated in this case, that the money was left in the hands of a third person for the creditor, can have no legal bearing on the present question. If the money is still kept in the hands of that person, the debtor may obtain it, and produce it in court; if not, it is no fault of the creditor, who had no partin selecting the depositary. Town v. Trow, 24 Pick. 169.
We think it would be dangerous and against the general policy of the law, if a debtor were allowed to defeat a levy by proof of a mere offer to pay the appraised value of the land, without requiring him to bring the money into court. There would be no limitation of time for offering the evidence, and when verbal evidence is offered to defeat a title derived under a levy on land, we think the evidence should be accompanied by a profert of the money tendered.
On the whole, we are of the opinion that, under the statute, the mere act of offering to the creditor the amount at which the land has been set off on execution, will not, of itself, unconditionally avoid the levy and discharge the land from the incumbrance; we think that the statute uses the word tender in the ordinary legal sense of that term; and that a tender in this case, as in that of any
Verdict set aside.