26 N.M. 140 | N.M. | 1920
Lead Opinion
OPINION OF THE COURT.
District Judge (after stating tbe facts as above). Many errors are assigned by appellant; but, as this ease must be reversed for tbe reason that no legal tender was ever made by tbe appellee, it will be unnecessary to consider tbe other assignments of error.
“That after the refusal of the said Occidental Life Insurance Company to accept the plaintiff’s said tender for the redemption of said real estate and water right, the plaintiff on, to wit, the 18th day of December, 1917, filed this his action for the redemption of said real estate, and thereby tendered in the court the said sum of $4,729.50, the amount tendered by him to said Occidental Life Insurance Company, on the said 3d day of December, 1917, for the purpose of redeeming said land •and real estate.”
This finding was evidently adopted and acquiesced in by the appellee, as he took no exception to it, and is thereby bound by it.
The tender made in the complaint, if any was really made, was, as the trial’court found, “the said sum of $4,729.50, the amount tendered by him to the said Occidental Life Insurance Company on the said 3rd day of December, 1917.” And coupled with the offer to pay, as set out in the complaint, is the same demand for proper conveyance, etc. It is apparent that the only tender the pleader or the trial court had in mind was the one made on December 3, and, if any tender was intended to be made in the complaint, certainly the ap-pellee would not have alleged any facts regarding the tender of December 3, and would necessarily have been compelled to tender a larger amount than was offered on December 3. It is also apparent that no action would lie against the appellant until after an unconditional offer to pay the amount due was made by the appellee to the appellant. If an unconditional tender had been made and had been refused, then, and then only, would the appellee have had the right to maintain this action. So the only tender that can be considered in passing upon the questions in this case is the one that ivas made on December 3.
If the law required the purchaser to execute the instrument demanded on tender being made, a different question would be presented. In the case o'f payment of taxes the law requires the treasurer to give a receipt, so a tender of taxes conditioned on the giving of a receipt therefor is perfectly valid; but there is no law requiring the execution and delivery of such an instrument as was demanded by the appellee, so it follows that the conditional tender was void, and this action could not be maintained.
For the reason above stated, the judgment will be reversed and the cause remanded, with instructions to. render a judgment for the appellant.
And it is so ordered.
Rehearing
On Motion for Rehearing.
HOLLOMAN, District Judge. The appellee has filed his motion for a rehearing of this cause based upon the claim that the court entirely overlooked and disregarded the well-known miles of law that the findings of fact by the court are entitled to the same weight as findings by a jury, and that, if the findings of fact by the court are supported by substantial evidence, they will not be reviewed or questioned by this court.
This court, in arriving at its former opinion, neither overlooked the findings of fact by the court, nor did it disregard the rules of law above mentioned. While it is true that the trial court found that the tender made on the 3rd day of December, 1917, was unconditional, that finding is unsupported by the evidence in the case. In fact, the only conclusion that can be drawn from the witnesses of the appellee is that the tender was conditioned upon the execution of some instrument by which the title of the appellee to the land should be cleared of record. The following from the testimony' of the ap-pellee himself is sufficient to show that the tender was not unconditional:
“Q. And you say that Mr. Simms offered this money to Mr. Mc.Millen? A. Yes, sir.
“Q. And Mr. McMillen said he would take it? A. He said he would take the money.
“Q. He didn’t take it? A. No.
“Q. You didn't permit him to take it? A. I didn’t when he said that he wouldn’t give us anything- to show that he had taken it.”
The same conclusion is necessarily drawn from the testimony of the witness Simms, who was appellee’s attorney and was present at the time the conditional tender was made, and testified as to what occurred at that time.
It might well be suggested, however, that the statement of the trial court in finding of fact No. 9, relative to the tender being unconditional, was not a finding of fact but merely a conclusion of law, and it is a conclusion of law which is erroneously drawn from the facts testified to by the appellee’s witnesses. In fact, we have searched the record carefully and have failed to find the testimony; of a single witness, or a single circumstance, that justifies the conclusion that the tender was unconditional. On the contrary, all of the testimony and circumstances in the case conclusively show that the tender was conditional, and that it was based upon the condition that an instrument of some character must be executed by appellant in order that the title of appellee to the laud in question would be cleared.
For the reasons above stated, the motion for a rehearing is denied.
