Mankel v. Belscamper

PiNNEY, J. The testimony in respect to the tender pleaded by the defendant is somewhat conflicting in some particulars, but the circuit court found that the tender was proved, and that the defendant was entitled, in consequence, to the relief sought by his counterclaim. It is -certain that there is no such decided preponderance of proof of evidence against the finding on any material point as would justify this court in coming to any different conclusion, in view of the fact that the circuit judge had advantages for testing the credibility ■ of the witnesses who testified in 223 open court on the trial which this court cannot possess. It is evident that, at or about the time of the tender, the plaintiff, in an angry mood, notified the defendant that unless the moneys then due on the contract were paid by the following Monday morning, an action would be brought against him, and, on application of the defendant, he was informed that the plaintiff would not take all the money called for by the contract, but would insist on receiving only that which had already become due, and this was after the defendant had made a loan for the purpose of paying up the entire sum secured, with interest. This wTas the matter in dispute between them. He desired to pay all, and she insisted that she would receive only a part of the moneys secured. The contract gave the defendant the right to make payment at any time before maturity. Tender of the entire amount was made to the plaintiff at her residence, and it is plain from the testimony that she had no intention of taking it, but was rather actuated by a disposition to subject the defendant to difficulty and embarrassment. It was her duty at that time to have received the money, and to have executed to the defendant the deed of conveyance of the premises in question. He was under no obligation to have taken with him a notary or other person to have prepared the deed. The tender wras not impaired by the fact that he demanded a deed, for he did not insist upon any condition except such as the plaintiff was clearly in duty bound to perform at the time of payment, by the contract. She was notified at the time that the money would be deposited in the bank at Lancaster, and the deposit was made accordingly. Subsequently her son called upon Mr. Watkins, in whose hands the defendant had left the matter, at Lancaster, and exhibited a sat-isfabtory deed to the defendant, when Mr. Watkins proposed to go with him to the bank and get the money. The son declined to do this, and perhaps denied his authority 224 to receive it; but we cannot consider that this point was well founded in fact, or raised for any other purpose than to embarrass the defendant and subject him to the trouble of taking the money out to where the plaintiff lived. He insisted that “ the money must go out there.” It is plain from what took place at the house, from his calling upon Mr. Watkins with the deed, and from all the facts and circumstances in the case, that he had ample authority to deliver the deed and receive the money. It is certain that both he and the plaintiff knew very well that they could get the money tendered at any time without difficulty, upon the delivery of the deed. They knew the money was awaiting her acceptance. Matters were suffered to remain in this condition for nearly two years without bringing an action. The evidence abundantly shows that there was not the slightest necessity for bringing it, and it seems to us to have been instituted through an unreasonable and litigious spirit. After the action was brought, the defendant paid the money tendered into court for the plaintiff’s use, and it remained there until the decision of the cause. The only real question in the case is whether the defendant, by failing to pay the money into court and to deliver a certificate thereof within five days after interposing his counterclaim, lost the benefit of his tender, and whether the case is within the provisions of Eule XYI of the circuit court rules, providing for tender and payment of money into court. The counterclaim is in the nature of an action for redemption of the premises and to compel a conveyance of the legal title, a tender of the amount due having already been made. It is strictly an equitable action. Had the mortgage been in form a legal mortgage, the tender would have discharged the lien, whether kept good or not (Breitenbach v. Turner, 18 Wis. 140; Kortright v. Cady, 21 N. Y. 343), and evidently in equity entitled the defendant to the conveyance he sought. In Breitenbach v. Turner, 225 supra, it was held that in equity it is sufficient for the party relying on a tender to offer to bring the money into court, and to be ready to comply with the direction of the court in regard to it. It is objected that the tender failed because the money was not paid in and certificate delivered within the five days specified by the rule. It is well established that the rules in respect to tender are much more liberal and flexible in equity than at law. It was not the intention in adopting .the rule in question to modify or change the decisions which had theretofore been made by the court in respect to tender of payment and readiness to pay in equitable actions. The rule evidently relates to legal actions on instruments for the payment of money only; that is to say, where the recovery of it is the sole purpose of the action, so that the party entitled to take the money out of court may do so as of right, and thus terminate the controversy. In equitable actions the disposition of the money, and the determination of the ultimate rights of the parties in respect to it, are usually subject to the control and determination of the court at the hearing. It is argued for the appellant that the statute (secs. 4265, 4266, R. S.). on the subject of tender applies to equitable as well as to legal actions. These provisions have been in force since the statute of 1849. R. S. 1849, ch. 93, secs. 1, 3, 4; R. S. 1858, ch. 126, secs. 7, 9, 10. The circuit court rule was not. intended to be broader than the statute, or to disturb or modify the decisions on the subject made in equitable' actions under it. We think, therefore, that the case of.' Breitenbach v. Turner, 18 Wis. 140, is decisive, and that the tender was originally good, and that it was kept in< force and maintained until the decision of the action. It therefore stopped interest; and, as the plaintiff was in default for not performing her duty in the premises by executing and delivering her deed, her action should have been dismissed, and the defendant granted the relief sought by 226 him. Costs were in the discretion of the court, and the plaintiff is in no position to claim that the coart exercised this discretion improperly. We think there is no error in the judgment of the circuit court, and that it ought to be affirmed. By the Court.— The judgment of the circuit court is affirmed.