Adolph Flake & Co. v. Nuse

Bonner, Associate Justice. The deed of trust shows that it was given upon both lots, numbers 11 and 12, to secure jointly the two notes, and contains this recital: “ That if both said promissory notes are punctually paid at maturity, with the accrued interest,'then the said4William F. Stowe, trustee, or holder of said notes, will release said property from this conveyance.” There is no subsequent agreement shown that either lot was to be released upon payment of only one of the notes. In addition to the amount admitted to be due on the note assumed to be paid by plaintiffs, the record shows that there was a large remainder also due on the other note. Under these circumstances, we do not think that the plaintiffs had the right to demand, as a condition of their tender, that a release should be executed discharging the lot pur [103] chased by them from liability for the remainder due upon the other note. The tender, then, being made upon a condition which the plaintiffs had no legal right to demand, was not such lawful tender as would stop interest or make the defendant liable for costs subsequently incurred. The judgment below is accordingly affirmed. ; Affirmed.