Lead Opinion
— On August 10, 1909, the district court in and for Ada county entered a judgment and decree in favor of C. K. Clark for the sum of $3,131.34, and adjudged and decreed the foreclosure of a certain mortgage on real estate situated in Boise City and for the sale of the property in payment of the judgment. In pursuance of this judgment and decree, the property was sold on the 2d day of October, 1909, and was bid in by C. K. Clark, the plaintiff in that action, who is defendant and appellant in this action. The time for redemption of the premises expired on October 2, 1910.
The whole controversy involved in this appeal centers in the transactions which took place between the parties on September 30, 1910, which was two days before the expiration of the period of redemption. On October 4, 1910, the sheriff of Ada county executed and delivered to Clark, the purchaser at the foreclosure sale, a sheriff’s deed to the property, and thereafter and on October 7th, Kelley commenced his action in the district court to quiet his title to the premises and secure a cancelation of the sheriff’s deed. Judgment was entered in favor of the plaintiff and the defendant Clark appeals.
The property had originally belonged to, and the mortgage had been executed by, John I. Wells and wife. The foreclosure had been against Wells and wife. On September 30, 1910, Wells and wife executed and delivered a deed to the property in favor of L. M. Kelley. Kelley succeeded to all the rights of Wells and all subsequent proceedings were taken in Kelley’s name. On September 30, 1910, and prior to the
“The payments mentioned in the last two sections may be made to the purchaser or redemptioner, or for him, to the officer who made the sale. When the judgment under which the sale has been made is payable in a specified kind of money or currency, payments must be made in the same kind of money or currency, and a tender of the money is equivalent to payment.”
This case was first tried before Hon. Fremont Wood, judge of the third judicial district, and Judge Woo'd found that a tender was made by Wells through his attorney and was refused by Clark. He made the further finding, however, ‘ ‘ That a controversy existed between said Clark and said Wells, and said tender was refused by the said Clark because of a claim put forward by him, and was not refused wantonly, nor said claim put forward by him as a cover to a wrong purpose, and said Clark acted in said matters in all respects in good faith, ’ ’ and entered judgment in favor of the defendant, refusing to quiet the title to said premises in the plaintiff.
The appeal is from an order denying a new trial.
(1) Appellant’s assignments of error may be considered under two heads: First, the insufficiency of the evidence to support the finding of facts to the effect that John I. Wells, through his attorney, made a tender to the appellant of the sum of $3,798.35 for the purpose of redeeming said property from sheriff’s sale; second, that the court erred in making its first conclusion of law from the facts, to the effect that a valid tender of the amount required to redeem lot 4 in block 84 of the original townsite of Boise, Idaho, from the sheriff’s sale of October 2, 1909, was made, and that such tender was refused by the defendant, and that the lien of the mortgage and of the sale on the foreclosure thereof was discharged thereby, and that the plaintiff is the own.er of the premises, free from the lien of said mortgage and the sale thereunder.
The evidence clearly supports said finding of facts that said tender was made in proper time and for the sole purpose of redemption. The appellant Clark made no claim whatever at the time the tender was made that said tender was not sufficient to discharge the mortgage debt and costs of foreclosure; neither did he ask for any time to ascertain whether such sum was sufficient, but he did then and there demand the payment of said $500 debt secured by another mortgage on said prémises, which mortgage and the debt secured thereby was purchased by the appellant on the 29th of August, 1910, more than thirty days prior to the time said tender was made, and he now contends that he was entitled to a reasonable time and opportunity to ascertain whether he was entitled to the payment of the last mentioned debt before a redemption could be made from said sheriff’s sale. He thus had had about thirty days in which to determine his rights under said second mortgage.
(2) - It is next contended that the court erred in concluding as a matter of law, that on the refusal of said tender the lien of the said first mortgage and the sale on the foreclosure thereof was fully discharged. The trial court no doubt based said conclusion of law upon the provisions of said see. 4494, above quoted, which provides, among other things, that a tender of money by one entitled to redeem is equivalent to payment. Said section was adopted from the statutes of California. It was enacted by the legislature of that state in 1872 (see see. 704, 3 Kerr’s Cyc. Codes of Cal. and notes thereto), and was thereafter adopted by Idaho territory in 1874 (see 8th Terr. Sess. Laws, p. 140, sec. 254), and o-ur attention has not been called to a statute of any other state similar to said section. In Hershey v. Dennis, 53 Cal. 77, the court had under consideration said section of the California statutes, and there held that the tender of the redemption money extinguishes the purchaser’s lien and is equivalent to payment.
In Haile v. Smith, 113 Cal. 656, 45 Pac. 872, the court held that “While the unaccepted tender did not release the defendant from his obligation to pay the money, it had the effect to release the land from any further claim thereto by the plaintiff and to remit the plaintiff to his personal claim for the money.”
In the well-considered case of Leet v. Armbruster, 143 Cal. 663, 77 Pac. 653, the court held that if the purchaser refuses a lawful tender of the redemption money, he does so at his own risk, and his refusal cannot prevent the legal effect of the tender to defeat the sale and to extinguish the purchaser’s interest in the mortgage lien; and the purchaser is remitted to his action -at law for the recovery of the money which still remains due.
In that case the court reviewed many cases, and there laid down the correct rule applicable to the facts of this ease. Of course, it goes without saying that the purchaser at a fore
In Moore v. Norman, 43 Minn. 428, 45 N. W. 857, 19 Am. St. 247, 9 L. R. A. 55, the court said: “If the mortgagor does not tender the full amount due, the lien of the mortgage is not extinguished, and he runs no risk in accepting it. If, upon the other hand, it is sufficient in amount, his debt is paid, and that is all he has any right to demand. It is his own folly if he attempts to exact more. But, in view of the serious consequences which might possibly result from a refusal to accept such a tender, the proof should be clear that it was fairly made, deliberately and intentionally refused by the mortgagee; that sufficient opportunity was afforded to ascertain the amount due, and that a sum sufficient to cover the whole amount due was absolutely and unconditionally tendered. ’ ’
See, also, Bunting v. Haskell, 152 Cal. 426, 93 Pac. 110.
Those cases rest on the proposition that a tender ipso facto discharges the lien, and that proposition finds much support among the decisions of the courts of last resort. (Ball v. Stanley, 5 Yerg. (Tenn.) 199, 26 Am. Dec. 263; Mitchell v. Roberts, 17 Fed. 779; Moore v. Norman, 43 Minn. 428, 45 N. W. 857, 19 Am. St. 247, 9 L. R. A. 55; Flanders v. Chamberlain, 24 Mich. 305; Bartel v. Lope, 6 Or. 321; Cass v. Higenbotam, 100 N. Y. 248, 3 N. E. 189; Kortright v. Cady, 21 N. Y. 343, 78 Am. Dec. 145.)
It is stated in 1 Jones on Mortgages, sec. 893, as follows: “The rule in several states, however, is that a tender of the amount due on a mortgage after the day fixed for payment is a discharge of the lien just as much as payment is, and in the same way that a tender at common law made upon the day named in the condition for payment has this effect. The lien of the mortgage is thereby ipso facto discharged, and
Referring to the principle under discussion, the court in Merritt v. Lambert, 7 Paige (N. Y.), 348, said: “So that if the mortgagee is so unwise as to refuse his money when it is tendered at the time and place and in the manner prescribed in the instrument itself, he necessarily must lose his security upon the land which was merely collateral to the debt; although the mortgagor may be still liable for the money, where there is an existing indebtedness. ’ ’
In Jackson v. Crafts, 18 Johns. (N. Y.) 115, the court quotes the rule laid down by Lord Coke to the effect that “if the mortgagor tender the money to the mortgagee and he refuseth, the land is freed forever from the condition, but yet the debt remaineth.”
Sec. 4492, Rev. Codes, provides what the judgment debtor .or redemptioner must do to redeem the property from the purchaser at foreclosure or execution sale. Said Wells was the judgment debtor in the ease at bar', and when he tendered the full amount due, as provided by said sec. 4492, that was a good and sufficient tender, and under the provisions of said sec. 4494 said tender was equivalent to payment, and ipso facto discharged the mortgage lien. The right of redemption is purely statutory, and the statute provides that in a redemption case the tender of the money is equivalent to payment.
Tender is the unconditional offer of a debtor to the creditor of the amount of his debt. This means the real amount of the debt as fixed by the law, and the purpose of the law' of tender is to enable the debtor to relieve himself of interest and costs and to relieve his property of encumbrance by offering his creditor all that he has any right to claim. This does not mean that the debtor must offer an amount beyond reasonable dispute, but it means the amount due, — actually due. Some of the decisions hold that tender must be kept good at least for a reasonable length of time such as would enable the creditor in good faith to ascertain and determine his rights both in fact and in law. Such a holding places the debtor at a great disadvantage, as the creditor might involve
The case of Mitchell v. Roberts, 17 Fed. 779, is an instructive ease upon the question here involved, -although it involves the extinguishment of a lien on personal property pledged to secure payment. The court said:
“Upon this question there is no conflict in the authorities. The rule is settled that a tender of the debt, for which the property is pledged as security, extinguishes the lien, and the pledgor may recover the pledge, or its value, in any proper form of action, without keeping the tender good or bringing the money into court; because, like a tender of the mortgage debt on the law-day, the tender having once operated to discharge the lien it is gone forever. This rule accords with justice and fair dealing. It would be an exceeding great hardship on the debtor if the creditor had the right to refuse to accept payment of the debt after it was due, and at the same time retain the debtor’s property or a lien upon it for the debt. Advantageous sales would be prevented, collections delayed, and credit lost by the inability of the debtor to free his property. In many eases debtors would be ruined before they could obtain relief by the slow process of a bill in equity to redeem. And on a bill to redeem a debtor would have to pay interest and costs down to the decree, unless he had kept the tender good. Thus the debtor, in order to protect himself against interest and costs, would be deprived of both his property and the use of his money at the pleasure of his creditor, or until the end of a chancery suit could be reached. On the other hand, a creditor who refuses
The equities and fair dealing in this ease, it seems to us, are all on the side of the debtor. The creditor did not question the amount of the tender, but had purchased a subsequent mortgage and debt secured thereby thirty days before the tender, and paid therefor $50, with the understanding that if he collected the whole amount due thereon he would pay to the mortgagee one-half of. what he collected. He made this purchase with the evident purpose of making the debtor pay it, or at least harassing him with it by declining to accept said tender. This transaction seems unfair to us, and we believe it is just such transactions that induced the legislature to adopt said section 4494. It is unreasonable for the appellant to contend that he ought to have a reasonable time to determine whether he was entitled to collect said note and mortgage at the time of redemption, as he had already owned said note and mortgage more than thirty days prior to the tender. There is no equity shown on his behalf, and the provisions of said sec. 4494 ought to be given some force and effect in favor of the debtor for whose protection the section was enacted. The statute has declared that tender is “equivalent to payment,” and under many well-considered cases it is held that upon tender the lien of the mortgage is thereby ipso facto discharged, and the holder of the mortgage can then only look to the personal responsibility of the person liable on the mortgage debt. It would completely nullify the provisions of said sec. 4494 to inject therein that in order to make tender “equivalent to payment” it must be kept good. Sec. 4492 provides that the debtor may redeem by payment, and sec. 4494 provides that tender is ‘ ‘ equivalent to payment,” and payment or its equivalent certainly discharges the lien. “Equivalent” is defined by lexicographers as “equal in value, force, measure, power and effect”; then “equivalent to payment,” under that definition, would be “equal in power and effect” to payment.
There is no question presented in this case in regard to the creditor’s having reasonable time to compute the amount
It appears that the debtor, had borrowed the money with which to make the redemption, and upon the refusal to accept the tender may 'have been placed in a position where he would have had to return the money in case the tender was refused, and might not have been able thereafter to borrow money for redemption. The creditor refused payment of his debt, which was lawfully tendered, and he cannot justly complain at the loss of his security for that debt ‘ because it shall be accounted to his own folly that he refused the money when a lawful tender was made unto him.”
(3) It is next contended that one who asks equity must do equity, and that under that rule respondent must pay the amount due on the Wells mortgage foreclosure decree before a court of equity will quiet the title in the respondent. There is nothing in the record to show that respondent owes that debt. If respondent does not owe the debt, why should he pay it? Would it be equitable to require him to do so? The record shows that Wells owes the debt, and since the statute has made a legal tender by a mortgagor redemptioner, equivalent to payment, and thereby discharged the lien, why should a court of equity compel a subsequent purchaser of said real estate to pay the debt of his grantor when the mortgage lien had been already discharged by the tender made before respondent purchased the property? The sheriff’s deed was issued subsequent to the purchase made by the respondent Kelley, and the sheriff, without any authority of law whatever, executed the deed that now casts a cloud upon said title. The wrongful act of the sheriff created the cloud, as the lien was discharged ipso facto by the tender. Unless the. plaintiff in this action owes said debt, a court of equity
The court, therefore, did not err in concluding as a conclusion of law from said findings that on the refusal of the appellant to accept said tender the lien of the mortgage and the lien created by the judgment on the foreclosure thereof were fully discharged. The judgment of the trial court must be affirmed, and it is so ordered, with costs in favor of the respondent.
Dissenting Opinion
Dissenting. — The conclusion reached by my associates in this case goes so wide of what seems to me to be justice and equity that I feel constrained to express my views in the matter.
Stripped of all disguise, the case involves the question, pure and simple, of the respondent avoiding the payment of a debt aggregating $3,798.35. Under the decision reached by the majority of this court, respondent will be successful in this attempt, and by solemn decree of court will be enabled to defeat the collection of this sum of money. I shall not attempt to make any additional statement of facts in the case except as in the course of the discussion I may deem it necessary to a clear understanding of my position to restate some of the facts or state some additional fact not embodied in the majority opinion.
In the very outset, let it be understood that the law question here involved is not whether a tender made under sec. 4494, Eev. Codes, shall be kept good from that time on, but the important question here is rather the facts and cireum
There is even a direct conflict in the evidence as to whether any payment was tendered or any money was in sight, and appellant’s counsel testifies that payment was not refused but that, as he understood it, the matter was left open until he could have time to further investigate the question as to whether his client was entitled to have the second mortgage paid as a condition of redemption under sees. 4492 and 4493 ■of the Rev. Codes. Now, in the face of all these facts, my associates suggest that the appellant was acting unfairly and was endeavoring to oppress and harass the respondent. They even seem to think there was something wrong, inequitable or unjust about the appellant urging that respondent pay an honest debt, the justice of which he did not question. Since when, I ask, has it become unfair, oppressive or wrongful for a creditor in Idaho to urge that his debtor pay an honest debt overdue? Why should he be mulcted out of his security for a debt approximating $4,000 because he has urged his debtor to pay an additional debt he owes? And, I may further ask, since when has it become inequitable or unjust for a creditor to purchase an additional claim against his debtor? By reverting to the legal phase of this case, we discover that Judge Wood upon the original trial found “that a controversy existed between said Clark and said Wells, and said tender was refused by said Clark because of a claim put forward by him, and was not refused wantonly, nor said claim put forward by him as a cover to a wrong purpose, and said Clark acted in said matters in all respects in good faith.” Judge MacLane, on the second trial, did not reverse or disturb this finding nor has he made any finding in conflict therewith. On the contrary, it is admitted that the foregoing finding by Judge Wood is in fact true and correct.
As above stated, there is no occasion in this case for considering or discussing the question as to whether a tender under our statute must be kept good until a suit to remove cloud and quiet title can be prosecuted, and I shall not attempt to discuss that question at this juncture. The only question here involved is the rule applicable to a tender and the good faith of the transaction. I shall first briefly address myself to some of the eases cited in the majority opinion.
In the first place, I may say, — and a reading of the decisions will amply justify me in it, — that not a single case cited in support of the majority opinion deals with the question here directly involved or is parallel with the facts of this case. Hershey v. Dennis, 53 Cal. 77, the first California case relied on by my associates, was an ejectment case, and does not touch the question here involved, nor . does it cite or consider the California statute corresponding with our sec. 4494. The syllabus to the case was not written by the court, but rather by the reporter, and does not correspond with the opinion itself.
Haile v. Smith, 113 Cal. 656, 45 Pac. 872, was another suit in ejectment, and involved the construction of a contract to sell real estate and a specific perforjnance thereof and a tender of payment provided for in the contract. It in no sense or particular deals with or. cites the statute here under consideration, nor was any such question presented to the court in that case.
Leet v. Armbruster, 143 Cal. 663, 77 Pae. 653, was also an action in ejectment, and the question there involved and considered was the necessity for keeping a tender good under
Mitchell v. Roberts, 17 Fed. 779, discusses the same question considered in Leet v. Armbruster, and in no way touches upon the good faith of the tender or the good faith of the refusal. That case, however, was dealing with a pledge of personal property instead of a mortgage on real estate, and the judge who wrote the opinion premised his discussion by pointing out the difference between the two, and showing that in a pledge of personal property the pledgee holds the possession, and that in such case an action might be maintained for the possession of the property as soon as a valid and legal tender has been made.
I shall not pursue an analysis of the cases cited further than to say that an examination of the remaining citations will disclose that they were each dealing with pledges of personal property or with common-law tenders, and that none of them was dealing with the statutory redemption from foreclosure, nor were they dealing with a question of good faith and bona fides on the part of either the debtor or creditor. So I dismiss the authorities cited in support of the majority opinion with the assertion that not a single one of them deals with or supports the doctrine enunciated by my associates.
I am not, however, without authority on the direct question involved in this ease, and that, too, from modern, eminent .and respectable jurists.
As late as May, 1911, the supreme court of South Carolina, in Reynolds v. Price, 88 S. C. 525, 71 S. E. 51, had before it a case involving a state of facts parallel with the case at bar. In that case a tender was made and the creditor demanded the sum of $2, which he called a renewal fee, for extending the time of the payment of the loan, and the sum of $10 as attorney’s fee for preparing summons and com
“But to produce such serious and heavy consequence the refusal must have been’ unqualified, and unaccompanied by any bona fide claim of right, which was supposed by the party to justify his refusal. The claim of right may have been one that could not be supported as matter of law; still if it was believed in, and was not wantonly put forward as a cover to a' wrong purpose, it is sufficient to prevent the forfeiture of the security.”
The majority have quoted at length from the opinion of the federal district judge reported in 17 Fed. 779, dealing with the straight question of the effect of a tender. I find the question, however, involved in the present case considered in 37 Fed. 286, 3 L. R. A. 90, in the case of Union Mutual Life Ins. Co. v. Union Mills Plaster Co., wherein another federal district judge holds that a refusal to accept the tender under a Iona fide claim of right does not extinguish the lien. The court said:
“But to produce such serious and heavy consequence the refusal must have been unqualified, and unaccompanied by any Iona fide claim of right, which was supposed by the party to justify his refusal. The claim of right may have been one that could not be supported as matter of law; still, if it was believed in, and was not wantonly put forward as a cover to a wrong purpose, it is sufficient to prevent the forfeiture of the security. So, here, while it is clear enough that the complainant had no right to make it a condition of receiving payment, that the defendant should enter into stipu
The majority opinion in this case holds that it would be inequitable and unjust to require the debtor to keep the tender good “for a reasonable length of time such as would enable the creditor in good faith to ascertain and determine his rights both in fact and in law.” That contention on the part of my associates strikes me as both remarkable and alarming. I confess that no authority whatever has been called to my attention which goes to any such length or intimates such a doctrine. Mr. Jones, in his work on Mortgages, sec. 893 (6th ed.), says: “If a mortgagee acting in good faith refuses a tender through a mistake as to-his legal rights, the lien of the mortgage is not discharged”; and again, in the same section, the author says: “One designing to make a tender with the purpose of insisting, in case of refusal, that the mortgage lien is discharged, is bound to act in a straightforward way and distinctly and fairly make known his true purpose without mystery or ambiguity, and allow reasonable opportunity for intelligent action by the holder of the mortgage.” The same doctrine is clearly and tersely stated by the supreme court of Michigan in Benard v. Klink, 91 Mich. 1, 51 N. W. 692, 30 Am. St. 458. Judge Black, in his text on Mortgages, at 27 Cyc. 1406, says: “A tender of payment or performance of a mortgage, to be effective, must be open, fair and reasonable, so clear and explicit as to leave no doubt of the intention to satisfy and discharge the mortgage.....” (See, also, 20 Am. & Eng. Ency. 1062.)
In the case at bar, at the time the alleged tender was made no intimation was given that the debtor intended to rely on the tender so made as discharging the security, nor was it intimated that the respondent meant to rely on the tender thus made as a discharge ipso facto of the security. The authorities are all agreed, so far as I have been able to find, that the proof should be clear and unmistakable that the
It is everywhere held that either debtor or creditor may be relieved and the time be extended by a court of equity on account of mistake, fraud or other circumstances appealing to the discretion of a court of equity. (Bunting v. Haskell, 152 Cal. 426, 93 Pac. 110.)
My associates tell appellant that although his security i,i wiped away, and in the meanwhile the property held as se
My associates have construed sec. 4494 in the light of an old common-law rule which prevailed before these statutes were enacted, but that rule had no reference to redemption after sale on foreclosure. It had reference solely to the payment of the debt on the day of maturity, whieh was known at common law as the “law-day” for the debt. (Murray v. O’Brien, 56 Wash. 361, 105 Pac. 840, 28 L. R. A., N. S., 998.) Our statute says, however, that “a tender of the money is equivalent to payment, ’ ’ not merely equivalent to a discharge of the security, but equivalent to “payment” of the debt. I call attention to this simply as an illustration of the futility of a court'sweeping away the creditor’s security merely because he has been ill advised or has made a mistake in believing himself entitled to demand, as a condition of redemption, the payment of a second lien against the property and then trying to console him by telling him that the debtor, though a bankrupt he may be, is still indebted to him.
There is another aspect to this case whieh should not be passed over lightly, and in which this case differs from the eases cited in support of the majority opinion. Here the respondent came into a court of equity and sought to have his title quieted and the cloud upon his property caused by the foreclosure sale removed, at the same time admitting his indebtedness and refusing to pay the same and making no offer
In Tarr v. Western Loan & Savings Bank, 15 Ida. 741, 99 Pac. 1049, 21 L. R. A., N. S., 707, this court in a suit in equity declined to cancel a'mortgage and remove the cloud cast by the same from the property where the debt had not been paid, although the court at the same time declined to give the lender a judgment and decree of foreclosure because it had failed to comply with the foreign corporation laws of this state. This was done upon the principle that one who is seeking an inequitable and unconscionable advantage over his adversary will be left in statu quo or granted no relief by a court of equity until such time as he himself offers to do equity. (For a holding to same effect, see New York & C. B. & L. Assn. v. Cannon, 99 Tenn. 345, 41 S. W. 1054.)
Jones in his work on Mortgages, at sec. 893, in considering the effect of a tender upon the mortgage security, saysj “But even if a sufficient tender be made out, the mortgagor cannot come into a court of equity to have the mortgage decreed to be surrendered or extinguished, without paying the amount equitably due under it.” The author then proceeds with the proposition that the rule with reference to a sufficient tender extinguishing the mortgage lien is limited in its operation to defenses to the enforcement of the mortgage. “It does not,” says the author, “avail a mortgagor who seeks a discharge of his mortgage; for when he seeks relief in a court of equity he must do equity, and must pay the mortgage debt. The tender then avails merely to stop the interest and
It has likewise been repeatedly held that even though the statute of limitations has run against a debt secured by mortgage, a court of equity will not grant a decree canceling the mortgage and removing the cloud from the debtor’s title, unless he pays the debt or tenders payment into court.
In Hall v. Hooper, 47 Neb. 111, 66 N. W. 33, the Nebraska supreme court said: “A mortgagor, in order to remove the cloud cast upon his title by a sheriff’s deed, executed in pursuance of a void foreclosure, must offer to pay what is equitably due under the mortgage, ’ ’ and this though the statute of limitations has barred the right to foreclose on the mortgage. To the same effect, see Michigan Trust Co. v. Frymark, 76 Neb. 634, 107 N. W. 760; Henry v. Henry, 73 Neb. 746, 107 N. W. 789; New York etc. Assn. v. Cannon, 99 Tenn. 344, 41 S. W. 1054; 28 Am. & Eng. Ency. of Law, 39; Werner v. Tuch, 127 N. Y. 217, 27 N. E. 845, 24 Am. St. 443 (holding tender not good for affirmative relief in equity); Ruppel v. Missouri Guarantee Assn., 158 Mo. 613, 59 S. W. 1000; Hall v. Arnott, 80 Cal. 348, 22 Pac. 200; Murray v. O’Brien, 56 Wash. 361, 105 Pac. 840, 28 L. R, A., N. S., 998 (holding that a tender will not entitle the debtor to have the cloud cast by the mortgage removed without an offer to pay into court).
I opine it would be difficult to find an authority sustaining the position that a debtor can have relief by way of removing the cloud cast upon his property by a mortgage or other lien where he admits, the tona fide existence of the .debt and refuses to make the payment.
From the foregoing considerations, I cannot escape the following conclusions:
Second: That the appellant acted honestly, fairly and in good faith when he procured the advice of his counsel, and, acting upon that advice, declined to accept the tender unless the second mortgage held by him was also paid.
Third: That the tender meant and intended by the provisions of sec. 4494 is a fair and straightforward offer to pay the amount when due with a present ability to make the payment in cash or in the specified kind of money or currency in which the judgment is made payable, and that this tender must be kept good for such a reasonable length of time as will enable the creditor in good faith to ascertain and determine his rights both in fact and in law.
Fourth: That a tender of payment under see. 4494, Rev. Codes, cannot afford a foreclosure debtor an affirmative cause of action in a court of equity to remove the cloud from the property cast by the sale unless he pays or offers to pay the debt secured thereby.
Fifth: That those who seek the aid of a court of equity must themselves do equity, and that it would be inequitable and unjust, and a recognition of dishonesty, for a court of equity to cancel and remove the cloud from the debtor’s property on the grounds that he had tendered payment where he refuses to make the tender good or to pay the debt which he admits is justly and honestly owing.
The foregoing are some of the salient reasons why I dissent from the majority opinion and believe that the judgment of the trial court should be reversed.
Concurrence Opinion
— I concur in the judgment and order entered, and still adhere to the views expressed by me in my dissenting opinion filed upon the original hearing.
Rehearing
ON REHEARING.
(February 10, 1913.)
— The original opinion in this case was handed down August 27, 1912. Thereafter a rehearing was granted and the cause has been reargued and resubmitted for decision.
The writer of this opinion prepared the former opinion, and he does not intend by anything said in this opinion to change the views expressed in the former opinion in regard to the construction placed upon see. 4494, Kev. Codes, but we have concluded that since this is an equitable suit to quiet title, and as it appears from the record that the refusal to accept said tender was withdrawn within a very few hours after the tender was made, and that the redemption money was available at the time of the withdrawal of said refusal to accept the tender, it is only equitable and right to require the judgment debtor or his assignee to pay to the proper party the amount of money so tendered. One of the best established rules of equity is that he who seeks equity must do equity, and we think it only equitable, upon a review of all the evidence in this case, that the plaintiff or his grantor be required to pay to the defendant, or his assignee, the amount of money tendered for the redemption of the property, before a redemption can be made. If said money be not paid to the defendant or his assignee within thirty days from the date of this opinion, whatever title was procured at said foreclosure sale shall be quieted in the defendant.
The cause is remanded, with instructions to make findings and enter decree in accordance with the views expressed in this opinion, each party to pay his own costs on this appeal.