Nutter v. Occidental Life Ins.

OPINION OF THE COURT. HOLLOMAN, 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. [1] On the 3rd day of December, 1917, and within nine months of tbe time of tbe sale of tbe property, appellee attempted to redeem tbe land. In order to redeem it was necessary for him to pay the purchaser, this appellant, the amount of the purchase price, together with interest thereon. The amount due at that time was the sum of $4,729.50. This amount was offered by the ap-pellee to the appellant, but with the condition that the appellant execute some instrument by which the title of this appellee to the land should be cleared of record. The appellant offered to take the money, but refused to execute any such instrument as demanded by the ap-pellee. The condition thus imposed by the appellee vitiated the tender. Union Esperanza Mining Co. v. Shan-don Mining Co., 18 N. M. 153, 135 Pae. 78. [2] The appellee, however, claims that a proper tender was made in the bill of complaint in this cause, and that even though the tender made on December 3, 1917, was invalid, yet the one made in the complaint is valid. However, the entire theory of the complaint is based upon the assumption that the tender of December 3rd was valid, and the offer to pay alleged in the complaint is merely an attempt by the appellee to keep a former tender good. This view of the theory of the complaint, and the theory adopted by the parties at the trial of the cause, is supported by the finding of the court No. 10, which is as follows: “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. PaRker, C. J., and Roberts, J., concur.