45 W. Va. 543 | W. Va. | 1898
This case was once before in this Court. 43 W. Va. 337, (27 S. E. 340). The bill claimed that a deed, absolute on its face, was in fact but a mortgage, and it sougnt to compel the parties claiming under that deed to so treat it, and allow a redemption of such mortgage. This Court decided that it was a mortgage, and directed that a redemption be allowed. When the case went back, it was referred to a commissioner to report the proper sum “to be paid in such redemption,” and his report fixed a sum which excluded interest for some years, because of a tender which Shank claimed he had made, and the court sustained the commissioner, and allowed a redemption at the sum fixed by him. To this abatement of the debt by the allowanceof said tender, Given, the party claiming the debt, objects and appeals.
I do not think that the evidence shows any tender. It seems to show rather a mere talk between the parties. Shank claiming the right to redeem, and the other parties denying it; a mere expression by Shank that he desired and was willing to pay the proper sum to redeem, not-even an actual offer, with money in his pocket to redeem. A mere proposition to redeem will not do. The strict law of tender requires the actual production of a precise and proper sum of money in the out-stretched hand, so that the creditor may take it. I know that circumstances will mitigate this strictness, but still there must be what shall be called an actual offer of the actual money ; it must amount to that. “Mere readiness and willingness to pay the debt amount to nothing without an offer or tender of payment, and a refusal by the creditors.” 25 Am. & Eng. Enc. Law, 916; Moore v. Harnsberger's Exr's, 26 Grat. 667; Moynahan v. Moore, 77 Am. Dec. 474. Though it is claimed in this case that the parties entitled to the money at the time of this alleged tender refused to allow a redemption, and that such refusal dispenses with the production of actual money, yet it must be clear that the offer to pay was an actual offer, with money present on the person of the tenderer, though not presented to sight. If the party had not the money, and* his proposals to pay were a mere pretense,
But there is another strong- argument against abating from the creditor’s debt interest by reason of the alleged tender. The money was not paid into court, nor deposited where the creditor could get it, nor, in a legal sense, kept ready for him. Shank seeks to cut the creditor out of interest, when he used the money himself, and derived interest therefrom. Money of one man, used by another, as justly calls for compensation by way of lawful interest as does the use of a horse or any other property, and the case must be plain to deprive its owner of this legal reward. All books say that the tender must be kept good, and many strong cases say that, if the tenderer use the money, it destroys the tender. Judge DeNt strongly presents this view in Thompson v. Lyon, 40 W. Va. 97, (20 S. E. 812). I quote from a strong opinion in McCalley v. Oley (Ala.) 42 Am. St. Rep. 90 (s. c. 12 South. 407), as follows: “Unless the tender is kept good all the time, — that is, unless the debtor is willing and prepared to make payment at any time after the tender, if the creditor should conclude to receive it, and until the money is paid into court upon a plea, — the debtor is chargeable with interest. He cannot make a tender to-day, and then use the money for his profit, and escape payment of interest. He is released from the payment of interest upon the supposition that he has been deprived of the use of the money by holding himself in readiness all the time to pay his creditor upon demand. The burden to make this proof, when the tender is denied, rests upon the debtor who seeks to avail himself of the benefit of a tender.” I held the view in the Thompson Case that generally the use of the money by the debtor did not deprive him of his tender; but where, as in this case, there is a claim of tender, and later a bill filed, and the party does not yet even pay the sum into court, but still uses it, his tender cannot stop interest. What right or justice has he to receive interest and pay none? I am not sure now but that Judge Dent’s position was right in all cases, though the authorities are divided on it. We think the sum proper to be decreed in this case
Reversed.