Hefflin v. Bell

The opinion of the court was delivered by Redfield, Ch. J. Two questions are raised in the present case: I. Whether the tender px-oved in the case is sufficient, under the statute of 1854, to enable the officer to hold the property under the attachment, discharged of the plaintiff’s claim. The statute in terms requires a “ tender to the vendor’, his agent or attorney, within ten days after such attachment, of the residue of such purchase money.” The evidence of some attempt at a tender by the attorney, after the ten days had expired and the suit was commenced, may be laid out of the case as not coming within the statute. And it is only by virtue of the statute that any tender could be made available. The evidence of tender within the ten days seems to fall far short of what is required for a tender. No definite sum was offered and no money brought into court, both of which are indispensable to a tender. This is attempted to be excused by the difficulty of ascertaining the sum to be tendered. But the statute only allows a tender of the “ residue of the purchase money,” and there [138] did not seem any difficulty in ascertaining this. The testimony seems to show that the plaintiff stated this, according to the fact, that seventy-five dollars only had been paid towards the price, which was one hundred and twenty-five dollars. And it is necessary that the party, to have any benefit, should make a tender, and it would seem he must do this at his peril. For it is necessary, at all events, to put the matter in such a train that the vendor may accept the sum offered at any point in the proceeding, and that he may also have it secured to him in the event of the litigation being determined against him. For which purpose it is necessary the money should be paid into court and there remain, subject to the event of the litigation. We have no occasion to say what will be the consequence of the vendor giving false information in regard to the sum due or refusing to give any information. II. It is claimed the suit should he dismissed for want of jurisdiction. This will depend upon the construction of the statute. If the statute gives the right to attach the vendee’s interest in the property so situated, and the attachment is perfectly valid to hold the vendee’s interest, without reference to the tender, and that is important only in regard to the vendor’s interest, then of course there was no very good reason to expect that the plaintiff could recover more than one hundred dollars. But if the right to attach depended upon the tender being made, and the statute conferred no right except upon the performance of such condition, then, under the former decisions of this court, the plaintiff might fairly have calculated that he should recover the value of the property. And if this question is fairly to be regarded as doubtful, the cause is not to be dismissed for want of jurisdiction, according to repeated decisions of this court. And that this is a doubtful question it need only be said that, after argument, the court are not now prepared to decide it. But as the plaintiff waives all exception upon that ground, he is entitled to have the judgment affirmed.