Hummel v. Brown

The opinion of the Court was delivered by Woodwabd, J. Can mere readiness to pay a debt excuse from payment of interest ? Certainly not, and this was all that was offered in defendant’s first bill. A legal tender will stop interest, and if the creditor be not at hand, a bond fide effort to find him for purposes of tender and payment, ought, I should think, to be submitted to the jury as a material fact bearing on continued liability for interest; but possession of the means with disposition to pay, which is all that readiness can import, is not, alone, a fact to be submitted to the jury. The offer was properly rejected as irrelevant, therefore, even if the medium of proof had been competent. But we think it was not. The admissions and confessions of one of two administrators, made in prejudice of the estate and of those in inheritance, have often been ruled inadmissible, and the Court was right in rejecting them here. 2d. The second bill is no better. What the family of George Hinkle said about his having been in this county was competent on no principle whatever. It was not pedigree — it was not the [313] proof of death — but the offer of a fact tending to impeach the title of the plaintiffs to administration. The letters of administration were founded on the presumption of death from long absence unaccounted for; and without pleading in abatement, or contesting their validity in any form on record, the defendant offered to prove by hearsay a faot that tended directly to their impeachment. It is a general rule that a defendant who means to question the character in which a plaintiff sues should plead in abatement. The general issue admits the character claimed on record by the plaintiff. And here again the medium of proof was in fault. The sayings of George Hinkle’s family might mean, and probably did mean, the declarations of living persons, brothers and sisters, who, for aught that appears, would have been competent witnesses to the fact alleged. Neither the fact nor the mode of proving it was competent. 3. As to the charge. There are cases in which liability for interest is a question for the jury upon all the circumstances in proof: 16 Ser. <f* R. 266; 2 W. §• Ser. 371; but this is not one of them. Here the debtor enjoyed undisturbed possession of the land purchased, no doubts pertained to his title, he made no inquiries for his creditor, and he was under a positive engagement to pay interest. The recognisance and bond entered into by John Hinkle, the electing heir, stipulated for the payment of the two instalments for which this suit was brought, with interest; and it is part of the statement of the plaintiff in error, that John Hinkle afterwards sold this real estate to Hummel, “who, by writing endorsed on the same, agreed to pay the bond.” This was as much an express undertaking to pay the interest as if he had been the original obligor, and brings the case within the principle ruled in Schaeffer’s Case, 9 Ser. R. 268. In such cases, where the terms of the obligation comprehend interest, it is inaccurate to say that interest is added by way of damages; for it is a substantive part of the debt, as much as the principal is, and is subject to the same remedies: Bank v. Chester, 1 Jones 282. The absence of the creditor, it is conceded, was no defence against the action of the administrators as to the principal sum; how, then, can it be as to the interest ? They have no better title to the principal than to the interest; the defendant is no more bound for the one than the other. Both are in the bond his intestate agreed to pay; both were liens on the land he purchased and enjoyed. Where the purchaser has been harassed in his possession, or rendered insecure in his title, or prevented from paying by the wrongful act of his vendor, he has some ground to claim exemption from interest, as damages against the vendor; but where he has enjoyed, without let or hindrance, the property purchased, and done nothing to look up a lien creditor or his representative, to tender payment of a debt which, by express agreement, is to bear interest, it is no [314] hardship to hold him to the payment of all that is nominated in the bond. The judgment is affirmed.