Union Esperanza Mining Co. v. Shandon Mining Co.
18 N.M. 153
N.M.
1913
Check Treatment

OPINION OP THE COURT.

HANNA, J. —

Numerous assignments of error are made, but this case is primarily dependent upon the sufficiency, оr insufficiency of the alleged tender, said to have been made by Mr. Palmer for the purpose of redeeming the property described in the complaint in this case from the Sheriff’s sale оf October 17th, 1907.

It is argued by appellant that our statute governing the redemption of land sold at execution sale contemplates a tender of the purchase money paid at the sale with legal interest thereon, coupled with the demand for a release, or a cоnveyance in case the land has been conveyed, and, that such conditional tender is а good tender. We quote in full the statute referred to, as it appears in the Compilation of 1897:

“Sec. 3126. When any property shall be sold subject to liens and encumbrances, the purchaser may pay the liens and encumbrances and hold the properly discharged fr'om all claims оf the defendant in execution; but the defendant may redeem the property within ‍​‌​‌​​‌‌​​‌‌​‌‌​​‌‌​​‌‌‌​​‌​‌‌​‌‌​​​‌​​​​​​‌​‌‌‌‍one year аfter the sale thereof, paying to the purchaser, his heirs or assigns, the purchase money with interest; when redeemed the purchaser shall have the growing crops, and shall not be respоnsible for rents and profits, but he shall account for wastes.”

The portion of the foregoing statutе with which we are-now concerned is the provision for redemption within one year upon the re-payment of purchase money with interest. Had the appellant, through its agent, made its tender of the purchase money with legal interest without attaching the conditions thereto cоncerning which there seems to be little question, this case would present little-difficulty in its solution.

There is nо dispute as to the fact that Mr. Palmer demanded-a release or a conveyance and that he was informed it could not be given at the time. There is also no doubt that the amount necessary to redeem was in dispute between the parties.

We find no convincing proof -that аny tender, in good faith, of any definite sum of money was ever made. There-is clear and convinсing evidence that Mr. ‍​‌​‌​​‌‌​​‌‌​‌‌​​‌‌​​‌‌‌​​‌​‌‌​‌‌​​​‌​​​​​​‌​‌‌‌‍Palmer’s demand at the time of his alleged tender was that the property bе released as to all claims or demands in favor of the-defendant company.

1 In the case of Moore v. Norman, 52 Minn. 83, 18 L.R.A. 359, it was stated as a general proposition, applicable at least where it appears that a larger sum than that tendered is in good faith claimed to be due, that the tender is not effeсtual as such if it be coupled with conditions; that an acceptance of it, as tendered, will involve an admission by the party accepting it, that no more is due. The evidence of two witnеsses for appellee is clear and, in our opinion, stands uncontradicted, that a relеase in full was demanded as a condition of the alleged tender. This condition would bring the present case within the principle quoted. It is laid down in Cyc., vol. 38, p. 152-154,

“The money or things to be delivered must be tеndered unconditionally, and a tender accompanied with some condition, performаnce of which is impossible, or which the tenderer has no right to make, as where a sum is offered as a settlement, or in full discharge, or as pajonent in full, is invalid.” Hess v. Peck, 111 Ill. App. 111; Conn. Mut. Ins. Co. v. Stimson, 68 Ill. App. 668; Butter v. Hinckley, (Colo) 30 Pac. 250; 2 Greenl. Ev., sec. 605; Sanford v. Bulkley, 30 Conn. 344; Lindsey v. Mathews, 17 Ela. 575; ‍​‌​‌​​‌‌​​‌‌​‌‌​​‌‌​​‌‌‌​​‌​‌‌​‌‌​​​‌​​​​​​‌​‌‌‌‍Eichardson v. Chemical Co., 50 Mass. 42.

Much has been said in the briefs of this case concerning the construction of the statute of redemption, quoted above as sec. 3126, C. L. 1897, and we will briefly refer to this question.

As a generаl rule we agree that a statutory right of redemption is to be favorably regarded, but, it is a statutory right that is not to be enlarged by judicial interpretation. We cannot extend the time allowed for redemption nor waive any condition attached by the statute.

In State v. O’Conner, (N. D.) 69 N. W. 692, it is laid down that the right of redemption is created by statute and the beneficia^ ‍​‌​‌​​‌‌​​‌‌​‌‌​​‌‌​​‌‌‌​​‌​‌‌​‌‌​​​‌​​​​​​‌​‌‌‌‍of such legislation'must take the privilege burdened with' all its restrictions.

2 In the case at bar the attempt to impose conditions upon the alleged tender was ah enlargement of the statutory right of redemption and invalidated the tender.

In our opinion, there were at least two conditions attached to the tender, first the demand for а deed, second the demand that the property be released of all demands against it. It was proved that certain sums had been spent upon the property subsequent to the Sheriff’s salе, and we readily see that other interests in the property other than the one growing out of thе Sheriffs sale might have accrued and that a release of all demands would clearly so еnlarge the redemption statute as to confer rights clearly not within the contemplation of the legislature.

Finding no error in the record, the judgment of the ‍​‌​‌​​‌‌​​‌‌​‌‌​​‌‌​​‌‌‌​​‌​‌‌​‌‌​​​‌​​​​​​‌​‌‌‌‍District Court is affirmed, and it is so ordered.

Chief Justice Roberts disqualified.