99 Ala. 584 | Ala. | 1892
Lead Opinion
When this case was here on a former appeal, (90 Ala. 302), the equity of the bill was fully sustained, and it was held that a court of equity would enjoin the execution of a power of sale, when it appeared that the mortgagee was proceeding in an improper or oppressive manner, or was perverting the power from its legitimate purpose ; as where, having refused repeated tender, he files a bill to foreclose, dismisses it without prejudice when the cause was ready for hearing, and advertises the land for sale under a power in the mortgage with the avowed, purpose of compelling the payment of another claim which is disputed.—McCalley v. Otey, 90 Ala. 302; Strum v. Childs, 63 Ala. 473. The evidence reasonably satisfies us that a tender was made in December, 1887, of the full amount due, of the refusal to accept it, and an attempt, after the tender, on the part of the mortgagee to coerce the payment of a disputed claim, not embraced in the mortgage debt. In addition to the testimony offered by complainant on this question, the respondent, Jno. S. McCalley, testifying in regard to the tender made by John M. Hampton, says : “I refused to take it from him unless he paid also Mrs. Octavia A. Otey’s merchandise account.” The merchandise account constituted no part of the secured debt, and its correctness was controverted.
The present bill was filed on the 19th of July, 1889. It appears from the testimony of the witness Hampton that a tender of the same amount was made about the 1st of July, just before the present bill was filed, and refused upon the same grounds, as that admitted by the respondent, above referred to. After answer and demurrer to the bill, complainants amended their bill, on the 21st day of March, 1890, by averring a readiness and willingness to pay the debt ever since the 31st day of December, 1887, when the debt fell due, and a tender of the money was first made.
The only other assignment of error which we think it necessary to consider, applies to so much of the decree of the court, as denied to the respondent any interest upon his
The chancellor was of opinion that the proof sustained the averments of the bill as amended. We have examined the testimony very closely, and we fail to discover any proof tending to show, that complainant kept good the tender. We think it satisfactorily shows a tender on the 31st of December, 1887, and another of the same amount on the 2d of January, 1888, and another about the first of July, 1889, and that the amount previously tendered was paid into the court at the time the amendment to the bill was filed in March, 1890. There is no proof that the tender was kept good, that is a readiness to pay, as we have defined a valid tender, in the intervals from January 2d, 1888 to July, 1889, and from this latter period to March, 1890, when the money was paid into court. We do not think the evidence sufficient on this point, and hold that the chancellor erred in decreeing that respondent mortgagee was not entitled to any interest. In all other respects his decree is affirmed. We will not render any final decree here, but reverse and remand the cause, leaving it in the discretion of the Chancery Court to permit the taking of further testimony on this point, if deemed essential to promote the ends of justice.
Reversed and remanded.
Dissenting Opinion
dissenting. — I can not agree that in passing on the issue of tender, the law casts on him who pleads such defense the duty and burden of proving that he has at all times kept on hand the amount of money he claims to have tendered; and that failing to do so, the plea is not made good. I think, the sounder and better rule is, that if the tender is made, sufficient in amount, and when the tender is pleaded the money is produced and deposited in court, this is all the defendant need do, unless by a further act of the creditor he has been put in default. The person to whom a sufficient tender has been made and refused by him, may destroy the effect of such tender, by subsequently demanding the money tendered. If on such subsequent demand the debtor fails to pay the money, he thereby loses all benefit the tender had secured to him. He must have the money ready to pay token called on, and must pay it if called on. This is what I understand to be the proper meaning and extent of the maxim that the tender must be kept good. He must have the money when needed and called for. He need not have it between the time of the tender
There are authorities both ways on this question. I think the sounder and more reasonable theory — the one which will secure a mutually just administration of the law — is the one I have sketched. In Curtis v. Greenbanks, 24 Vt. 536, the principle is thus stated: “The person tendering is at liberty to use it [the money tendered] as his own. All he is under obligation to do, is to be ready at all times to pay the debt in currency when requested.” To the same effect are Colby v. Stevens, 38 N. H. 191; Mich. Cen. R. R. Co. v. Dunham, 30 Mich. 128; 7 Wait’s Act. & Def., 592. There is, to my mind, a sound, logical reason for this. The tender does not change the ownership of the money. It remains the property of the tenderer until accepted, or agreed to be accepted, or until it is deposited in court with the plea, when it passes into the custody of the court. He remains liable for its safe preservation. To me it is illogical to hóld that one who is, in every sense, the owner of money, may not use and utilize it, provided he thereby impairs the legal rights of no other person.