84 Wis. 218 | Wis. | 1893
The testimony in respect to the tender pleaded by the defendant is somewhat conflicting in some particulars, but the circuit court found that the tender was proved, and that the defendant was entitled, in consequence, to the relief sought by his counterclaim. It is -certain that there is no such decided preponderance of proof of evidence against the finding on any material point as would justify this court in coming to any different conclusion, in view of the fact that the circuit judge had advantages for testing the credibility ■ of the witnesses who testified in
The only real question in the case is whether the defendant, by failing to pay the money into court and to deliver a certificate thereof within five days after interposing his counterclaim, lost the benefit of his tender, and whether the case is within the provisions of Eule XYI of the circuit court rules, providing for tender and payment of money into court. The counterclaim is in the nature of an action for redemption of the premises and to compel a conveyance of the legal title, a tender of the amount due having already been made. It is strictly an equitable action. Had the mortgage been in form a legal mortgage, the tender would have discharged the lien, whether kept good or not (Breitenbach v. Turner, 18 Wis. 140; Kortright v. Cady, 21 N. Y. 343), and evidently in equity entitled the defendant to the conveyance he sought. In Breitenbach v. Turner,
By the Court.— The judgment of the circuit court is affirmed.