McCalley v. Otey

COLEMAN, J. When this case was here on a former appeal, (90 Ala. 302), the equity of the bill was fully sustained, and it was held that a court of equity would enjoin the execution of a power of sale, when it appeared that the mortgagee was proceeding in an improper or oppressive manner, or was perverting the power from its legitimate purpose ; as where, having refused repeated tender, he files a bill to foreclose, dismisses it without prejudice when the cause was ready for hearing, and advertises the land for sale under a power in the mortgage with the avowed, purpose of compelling the payment of another claim which is disputed.—McCalley v. Otey, 90 Ala. 302; Strum v. Childs, 63 Ala. 473. The evidence reasonably satisfies us that a tender was made in December, 1887, of the full amount due, of the refusal to accept it, and an attempt, after the tender, on the part of the mortgagee to coerce the payment of a disputed claim, not embraced in the mortgage debt. In addition to the testimony offered by complainant on this question, the respondent, Jno. S. McCalley, testifying in regard to the tender made by John M. Hampton, says : “I refused to take it from him unless he paid also Mrs. Octavia A. Otey’s merchandise account.” The merchandise account constituted no part of the secured debt, and its correctness was controverted. The present bill was filed on the 19th of July, 1889. It appears from the testimony of the witness Hampton that a tender of the same amount was made about the 1st of July, just before the present bill was filed, and refused upon the same grounds, as that admitted by the respondent, above referred to. After answer and demurrer to the bill, complainants amended their bill, on the 21st day of March, 1890, by averring a readiness and willingness to pay the debt ever since the 31st day of December, 1887, when the debt fell due, and a tender of the money was first made. The only other assignment of error which we think it necessary to consider, applies to so much of the decree of the court, as denied to the respondent any interest upon his [589] debt. A tender of the whole amount due, principal and interest, at any time after the debt falls due, but before suit is brought, stops the interest, and discharges the party from the cost of a subsequent suit. The actual proffer of the money is dispensed with, if the debtor is ready and willing to pay, and about to produce it, but is prevented by the creditor declaring he will not receive it.—Rudulph v. Wagner, 36 Ala. 702. In McCalley v. Otey, 90 Ala., siqora, it is said : “A tender refused does not operate to discharge the debtor from the debt, but only releases him from the payment of the interest subsequently accruing; and to have this effect the amount tendered must be in readiness to be paid at any time called for, and on plea must be followed by the payment of the money into court. It is not meant, however, that the identical money tendered must be kept; it is sufficient if the party holds himself ready to pay at all times.” We have already held that the payment of the money into court was not necessary to sustain the equity of the bill for redemption, nor was its payment into court essential under the facts of the case, to authorize a court of equity to enjoin the execution of the power of sale.—90 Ala. supra; McGuire v. Van Pelt, 55 Ala. 344; Carlin v. Jones, Ib. 624. We are'considering now the question of a tender as affecting the payment of interest. 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 his plea, the debtor is chargeable with interest. He can not make a tender to-day and then use the money for his profit, and escape the payment of interest. He is released from the payment of interestupon 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 his 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. The answer of the respondent creditor expressly denied the averment of complainant’s bill, that he was ready all the time and willing to pay the amount tendered.—Thayer v. Meeker, 86 Ill. 474; 77 Amer. Dec. 468, note p. 485; 7 Wait’s Act. & Def., 596, § 17. The case of Curtiss v. Greenbanks, 24 Vt. 536, is directly in line with McCalley v. Otey, 90 Ala., supra, that the “identical” money need not be kept on hand, and it lays down the general principle as we have declared it, that he must be ready and willing at all times to make- good his tender. [590] That case, (24 Vi, supra,) does not treat of the question of the burden of proof. The chancellor was of opinion that the proof sustained the averments of the bill as amended. We have examined the testimony very closely, and we fail to discover any proof tending to show, that complainant kept good the tender. We think it satisfactorily shows a tender on the 31st of December, 1887, and another of the same amount on the 2d of January, 1888, and another about the first of July, 1889, and that the amount previously tendered was paid into the court at the time the amendment to the bill was filed in March, 1890. There is no proof that the tender was kept good, that is a readiness to pay, as we have defined a valid tender, in the intervals from January 2d, 1888 to July, 1889, and from this latter period to March, 1890, when the money was paid into court. We do not think the evidence sufficient on this point, and hold that the chancellor erred in decreeing that respondent mortgagee was not entitled to any interest. In all other respects his decree is affirmed. We will not render any final decree here, but reverse and remand the cause, leaving it in the discretion of the Chancery Court to permit the taking of further testimony on this point, if deemed essential to promote the ends of justice. Reversed and remanded.