42 Me. 296 | Me. | 1856
Lead Opinion
The money in the hands of the party summoned as trustee, was tendered by the wife of the principal defendant, to Charles Pike, to pay certain notes, given by her husband to Pike, and to redeem real estate, conveyed in mortgage for their security. It does not appear by the disclosure, whether the creditor positively refused to receive the money or not, when it was offered, but it not being taken, it was deposited in the hands of the supposed trustee, subject to Pike’s order, or to lier order.
The money so tendered and deposited, is claimed by the
If the money had been received by Pike, it would not probably be contended that it would be subject to attachment in Ms hands as trustee. It being due to him from the husband, whose money it is claimed to have been, by the facts disclosed, it would become Ms property. It was deposited for him, in payment of her husband’s notes, and could be taken at any time, it not having been withdrawn, at the time of the service of the writ. The husband has not denied her authority to make the payment, in discharge of his notes, and it is not in the power of a stranger, to treat the tender and deposit as a nullity, and thereby divert it from the designed direction.
The inducement under which the wife acted, to make her interest in the land mortgaged, available to her, by the payment of her husband’s notes, cannot change the principle, which is otherwise applicable. Exceptions overruled.
Dissenting Opinion
did not concur in the foregoing opinion, but made the following memorandum:—
Till the tender is accepted, the money may be withdrawn at any time. Whether withdrawn or not, the title to it remains in the person tendering. If lost, it is his loss. It is in no respect the property of the person to whom it is tendered till acceptance.
The evidence does not satisfactorily show that the money tendered belonged to the defendant’s wife. If it belonged to the defendant, when tendered, it still remains Ms.