The following verdict for mental anguish suffered because of the inability to be present at the funeral of a daughter has been declared excessive:

$5000.-Western Union Tel. Co. v. Skinner (Tex.) 128 S. W. 715 (mother prevented from attending daughter's funeral; verdict reduced to $1000).

The following verdict for mental anguish suffered because of the inability to be present at the funeral of a sister has been sustained as not excessive:

$500.-Western Union Tel. Co. v. Toms, 99 Ark. 117, 137 S. W. 559 (brother prevented from attending sister's funeral).

The following verdicts for mental anguish suffered because of the inability to be present at the funeral of a brother or sister have been declared excessive:

$1000.-Western Union Tel. Co. v. Freeman (Ark.) 180 S. W. 743 (sister prevented from attending sister's funeral; verdict reduced to $400); Western Union Tel. Co. v. Holcomb (Tex.) 175 S. W. 750 (brother prevented from attending brother's funeral; verdict reduced to $500);

$500.-Western Union Tel. Co. v. Scanlon, 115 Ark. 515, 171 S. W. 916 (sister prevented from attending sister's funeral; verdict reduced to $250).

Person Prevented from Seeing Remains of Relative before Burial.

The following verdicts for mental anguish suffered because of the inability to see the remains of a relative before burial have been sustained as not excessive:

$1475.-Western Union Tel. Co. v. Beringer, 84 Tex. 38, 19 S. W. 336 (son prevented from seeing remains of father and being present at his funeral);

$500.-Western Union Tel. Co. v. Jeanes (Tex.) 29 S. W. 1130 (son prevented from seeing father before burial and attending his funeral).

Person Deprived of Consolation of Relative at Death of Another Relative.

The following verdicts for mental anguish suffered because of being deprived of the consolation of a relative at the death or funeral of another relative have been sustained as not excessive:

$1207.87.-Western Union Tel. Co. v. Tucker (Tex.) 152 S. W. 199 (anguish of mother over failure of her parents to attend her child's funeral);

$225.-Western Union Tel. Co. v. Mooney (Tex.) 160 S. W. 318 (woman deprived of consolation of sister immediately following death of husband).

The following verdict for mental anguish suffered because of being deprived of the con

solation of a relative at the funeral of another relative has been declared excessive:

$500.-Western Union Tel. Co. v. Crow, 106 Ark. 117, 152 S. W. 1015 (husband deprived of consolation of wife at his father's funeral; verdict reduced to $100).

Person Deprived of Funds with Which to Bury Relative.

The following verdicts for mental anguish suffered because of the deprivation of funds with which to bury a relative have been sustained as not excessive:

$1500.45.-Western Union Tel. Co. v. McFarlane (Tex.) 161 S. W. 57 (mental anguish of husband because of improper transmission of telegram asking funds to bury wife, body decomposed, improper burial in distant county);

$600.-Western Union Tel. Co. v. Richards (Tex.) 158 S. W. 1187 (failure to transmit promptly message asking funds to bury wife, husband suffered many hours and wife buried as pauper).

Miscellaneous Verdicts.

The following miscellaneous verdicts for mental anguish suffered because of the failure promptly to transmit a telegram have been sustained as not excessive:

$1500.-Western Union Tel. Co. v. Rowell, 166 Ala. 651, 51 So. 880 (husband delayed two days in reaching sick wife, would have secured necessary medical attention, life

might have been saved);

$1000.25.-Western Union Tel. Co. V. Stephens, 2 Tex. Civ. App. 129, 21 S. W. 148 (suffering of parents because of failure of physician to reach sick child);

$375.-Robertson v. Western Union Tel. Co. 95 S. C. 356, 78 S. E. 977 (mental anguish of wife for fifteen hours by being deprived of the presence of her husband after sudden illness);

$300.-Western Union Tel. Co. v. Arant, 88 Ark. 499, 115 S. W. 136 (mother prevented from bringing home body of son, buried in another state, anxiety for weeks until body could be exhumed and brought home, unable to see remains on account of condition of body).

The following miscellaneous verdicts for mental anguish suffered because of the failure promptly to transmit a telegram have been declared excessive:

$1200.-Western Union Tel. Co. v. Riviere (Tex.) 174 S. W. 650 (daughter kept from dying father's bedside twelve hours; recognized her when she arrived and spoke to her by name, lived three days; verdict reduced to $600);

$1000.-Western Union Tel. Co. v. Flannagan, 113 Ark. 9, 167 S. W. 701 (suffering of

Tender

Evidence Sufficient. The pleading and evidence required a finding on the issue of tender of payment by the judgment debtor under which plaintiffs affected redemption. If the findings in this case are to be construed to the effect that, by direct authority of the judgment debtor, a tender in lawful money of the full amount of plaintiffs' judgment was not made to them personally prior to the time when they could use the same for redemption purposes, they are not justified by the evidence.

Tender of Payment of Judgment.

No one in the line of redemptioners, nor an intermeddler, may by tender of payment of a judgment impair or destroy a judgment creditor's right to use the judgment to effect redemption.

[See note at end of this case.] Same.

To destroy a judgment creditor's right to use the judgment as a means for obtaining certain land through redemption, it is not indispensable that the judgment creditor, in addition to tender of payment, bring suit to compel satisfaction of the judgment and deposit the money tendered in court.

[See note at end of this case.]

Same.

A tender by the judgment debtor of the full amount due on a judgment, under which the judgment creditor has filed an intention to redeem land, before the arrival of the time when the judgment could be used for such purpose, and under circumstances clearly disclosing that both parties appreciated the purpose of such tender, destroys the right of the judgment creditor to thereafter use the judgment as a basis for redeeming such land.

[See note at end of this case.] Same.

But if a redemption is made by a judgment creditor whose right to make it, though

Assuming a valid tender proven, it is held: (a) That the defendant Torinus, the holder of the title acquired through the mortgage foreclosure sale, by accepting the redemption money paid by plaintiffs, judgment creditors, with full knowledge of the facts showing that they had no right to redeem, thereby suffered plaintiffs to succeed to his title and cannot now question the validity of their redemption.

(b) That the evidence does not show any rights or equities which required the court to relieve the defendant William Sutton, junior to plaintiffs in the line of redemptioners, who atempted to redeem under a mortgage, recorded without the prepayment of the registry tax. Nor has Sutton alone, or in conjunction with any other defendant, any equities through which to attack plaintiffs' title.

(c) That the defendant Sauntry, the owner, after the expiriation of the year of redemption, had no interest in the land so as to question plaintiffs' redemption, and his right to have the land applied to the payment of such of his debts as were liens thereon, depended entirely upon the lienholders making redemption in strict conformity with the stat

ute.

(Syllabus by Court.)

Appeal from District Court, St. Louis county: FESLER, Judge.

Action to quiet title. Charles N. Orr et al., plaintiffs, and William Sutton et al., defendants. DeJudgment for plaintiffs. fendants appeal. The facts are stated in the opinion. AFFIRMED.

J. N. Searles, Manwaring & Sullivan and Butler & Mitchell for appellants.

William G. White and Theodore Hollister for respondents.

[39] HOLT, J.-Action to quiet title. William Sauntry owned an undivided half of valuable mining lands in St. Louis county, this state, which he mortgaged to secure the sum of $30,000. He defaulted and the mortgage was duly foreclosed by advertisement. The year for redemption expired on September 20, 1911. The rights acquired by the purchaser at the sale were on the last named date held by Louis E. Torinus, the sheriff's certificate having been duly assigned to him. The mortgagor was insolvent, and unsatisfied judgments existed against him. Transcripts of the following judgments were docketed in St. Louis county prior to September 21,

1911: (1) A transcript of a judgment in favor of Nathan E. Franklin for $8,243.34, docketed July 22, 1910. This judgment was assigned to Louis E. Torinus and proper record made on September 23, 1911; (2) a transcript of judgment in favor of Fred Rossiter for $1,589.35, docketed October 24, 1910; (3) a transcript of a judgment in favor of John J. Kilty for $329, docketed at 5:15 p. m. September 20, 1911, together with proper records showing an assignment of the judg ment to William Sutton, September 18, 1911; and (4) a transcript of a judgment in favor of Robert W. Hunt & Co. for $741.38, docketed at 5:19 p. m. September 20, 1911, with proper records showing an assignment of this judgment to plaintiffs January 11, 1911. In the evening of September 20, 1911, William Sauntry executed a second mortgage on the land to William Sutton to secure a demand note

for $50. It appears that this indebtedness represented a portion of attorney's fees owing to one Grannis from Sauntry which Grannis assigned to William Sutton. This mortgage was filed in the office of the register of deeds at 10 p. m. on the same day. But no mortgage registry tax was paid thereon until long afterwards. No registry number was placed on the mortgage, nor was it indexed until the next morning after it then had been taken to the county treasurer and he had certified thereon that it was exempt from taxation. Proper notices of [40] intention to redeem were filed so that the respective judgment creditors were placed in line of redemptioners in the order above given and the mortgagee William Sutton last, provided each had a good right to redeem. Sauntry, the mortgagor and owner, did not redeem. Louis E. Torinus redeemed on September 25, 1911, as assignee of Franklin judgment. Fred Rossiter the next in line did not offer to redeem. Nor did William Sutton make any attempt to redeem as assignee of the Kilty judgment. On October 5, 1911, plaintiffs, as assignees of the Robert W. Hunt & Co. judgment, redeemed; and on October 9, 1911, William Sutton in turn redeemed as mortgagee in the $50 mortgage mentioned. The sheriff upon each of these redemptions issued his certificate to the redemptioner. October 10, 1911, William Sutton, claiming to be the owner of the land under his redemption, mortgaged the same to Louis E. Torinus to secure the payment of $10,000. The complaint sets out the various matters very fully, alleges conspiracy between the defendants to circumvent plaintiffs and deprive them of their right to redeem, and asks that the claims of each defendant to the land be barred and the cloud cast upon plaintiffs' title by the Sutton redemption, the Torinus mortgage, and the records thereof be removed. In addition to Torinus, Sutton and Sauntry, the latter's wife and one Lyman Sutton are

made defendants, also the lessees of the mine, but the latter are in no way affected. The court found plaintiffs to be the owners, that the defendants had no right, title or lien in or to the land, and directed judgment quieting title in plaintiffs and removing the cloud cast on their title by the record of the Sutton redemption and mortgage, and the mortgage to Torinus. Defendants appeal from the order denying their motion for a new trial.

The defendants contend for a new trial upon three grounds: (1) No mortgage registry tax was required upon the $50 mortgage under which Sutton redeemed, hence his redemption vested title in him; (2) plaintiffs lost their right to redeem by the tender of payment of their judgment prior to the time when such right could be exercised; (3) even if the tax be held applicable to this mortgage, equities will relieve defendants since its nonpayment was the result of an honest [41] mistake induced by the conduct of the administrative officers of the state and county, and the tax was paid before the trial.

In a former opinion in this case (Orr v. Sutton, 119 Minn. 193, 137 N. W. 973, 42 L.R.A. (N.S.) 146) we held that this mortgage, upon which the registry tax imposed by chapter 328, p. 448, Laws 1907, was not Faid before it was recorded, furnished no sufficient legal basis for redemption from the foreclosure sale here involved. This was following and applying the rule announced in State v. Fitzgerald, 117 Minn. 192, 134 N. W. 728, that all mortgages including those of $50 and less are subject to the registry tax. We are earnestly importuned to re-examine the question, on the ground that that decision is wrong and that the court was led astray, because counsel on both sides designedly took the position that the law violated the Constitution, unless it was held applicable to all mortgages however small. Even if the court, as now constituted, entertained doubts concerning the soundness of the Fitzgerald decision, a well-settled rule of law stands in the way of any re-examination of the question upon this appeal, for on this proposition our former decision herein is the law of the case and binding on us. There is nothing in the situation which calls for a deviation from this well-established doctrine. No application was made for reargument when the former appeal was determined. In Terryll v. Faribault, 84 Minn. 341, 87 N. W. 917, it is said: "The case was here on a former appeal and the notice of claim for damages was held sufficient. 81 Minn. 519, 84 N. W. 458. That decision, whether right or wrong, must be treated as the law of the case and the question cannot be re-examined at this time." The same rule was stated thus in Bradley v. Norris, 67 Minn. 48, 69 N. W. 624: "This court has the right to overrule the decision

made on the former appeal in some other case, but in this case it must be followed." See also Schleuder v. Corey, 30 Minn. 501, 16 N. W. 401; Smith v. Glover, 50 Minn. 58, 52 N. W. 210, 912; Tilleny v. Wolverton, 54 Minn. 75, 55 N. W. 822; Maxweli v. Schwartz, 55 Minn. 414, 57 N. W. 141; St. Paul Trust Co. v. Kittson, 67 Minn. 59, 69 N. W. 625; Phelps v. Sargent, 73 Minn. 260, 76 N. W. 25; Piper v. Sawyer, 78 Minn. 221, 80 N. W. 970; Hibbs v. Marpe, 84 Minn. 178, 87 N. W. 363. To the same effect many authorities may [42] be cited from other jurisdictions: Adams Co. v. Burlington, etc. R. Co. 55 Ia. 94, 2 N. W. 1054, 7 N. W. 471; Heffner v. Brownell, 75 Ia. 341, 39 N. W. 640; Bem v. Shoemaker, 10 S. D. 453, 74 N. W. 239; Bolton v. Hey, 168 Pa. St. 418, 31 Atl. 1097; and Case v. Hoffman, 100 Wis. 314, 72 N. W. 390, 74 N. W. 220, 75 N. W. 945, 44 L.R.A. 728.

One of the main defenses pleaded is, plaintiffs were tendered payment of their judgment before the time arrived at which it might be used to effect redemption, therefore the one made by them was wrongful and of no validity to pass title. It is undisputed that on September 27, 1911, Lyman Sutton, accompanied by defendants' attorney, brought $785 in gold coin to plaintiffs' office and tendered the same to them personally in payment of the judgment held by them. The amount was sufficient and was verified by one of plaintiffs. Beyond quibble written authority from Sauntry to Lyman Sutton to make the payment was exhibited to plaintiffs. The money was not Sauntry's. It was furnished by Lyman Sutton. When plaintiffs refused to accept, Sutton placed the money in his safe, where it remained ready for plaintiffs until some time in the following December. Defendants insist a valid tender was proven and should have been definitely found by the court, and, in case the findings should be construed as negativing a tender, they contend the evidence does not justify the same. is commendable to find only the ultimate facts. But in this case tender was set up as a specific defense or ground for contesting the validity of plaintiffs' redemption. Whether William Sauntry actually offered plaintiff's lawful money in sufficient amount to pay their judgment prior to their redemption, was a matter of pure fact. Whether such fact constituted a legal defense, is a question of law. The court below may have been satisfied of the existence of the fact, but may have concluded that the legal effect was of no consequence to defendants. This court may take a different view. It is thus apparent that an absence of a specific finding upon the issue of tender is not fair to defendants, nor, indeed, to plaintiffs were they appellants. It is true the request to make Ann. Cas. 1916C.-34.

It

findings on this issue was not in the proper form (Hall v. Sauntry, 72 Minn. 420, 75 N. W. 420, 71 Am. St. Rep. 497), nevertheless tender was so important [43] a matter to a right decision that the findings should not leave the fact of its being made in doubt. This is a case where a definite finding should have been made on this issue. Turner v. Fryberger, 99 Minn. 236, 108 N. W. 1118, 109 N. W. 229. Moreover, even if the findings, coupled with the court's refusal to amend the same to show tender, should be construed equivalent to a finding that tender was not proven, we are of opinion that the evidence as it now stands does not so warrant. The money was there. Plaintiffs were lawyers. They knew as well as defendants what it was intended for, and what was at stake. Their refusal to accept payment was no doubt a deliberate act with full knowledge of the situation. They took the chance of defendants not being able to establish that the tender was made by authority and direction of Sauntry, or else that the law did not give the debtor the right to stop plaintiffs at that time from resorting to the land for the satisfaction of their judgment. We shall therefore assume that plaintiff's were tendered payment of their judgment before the arrival of the time when they could use it for the purpose of redemption.

True, no one in the line of redemptioners, either ahead of or behind plaintiffs, nor any intermeddler, could extinguish or impair their right to redeem by offering to pay their judg ment. The only one who possessed this right on September 27, 1911, was the judgment debtor. His right was absolute. It is immaterial who furnished him the money, or what his motives were, he was then entitled to pay the judgment or cause it to be paid, for the time had not arrived when plaintiffs could use it for redemption purposes.

It is asserted the tender was unavailing because when refused the only way to keep it good was to pay the money into court and begin an action to compel a satisfaction of the judgment. Section 7908, G. S. 1913, is cited. This provision does not in terms apply to this case. But we may admit that the procedure suggested by respondent is not improper. However, it is not absolutely necessary in order to give effect to the tender. The testimony shows that the gold was kept intact for plaintiffs for some time after this action was brought and the answer served. In the answer Sauntry still asserts a readiness to pay. At any time after Sutton's redemption [44] plaintiff's could have received from the sheriff full payment of their judgment and all moneys paid by them in their attempt to redeem, including the wrongful payment of the Kilty judgment. We think the tender was kept good and the money is

available now. Dunn v. Dewey, 75 Minn. 153, 77 N. W. 793; Murray v. Nickerson, 90 Minn. 197, 95 N. W. 898.

The claim is also presented that the tender unaccepted was of no effect. Harking back to the early case of Jackson v. Law, 5 Cow. (N. Y.) 248, Law v. Jackson, 9 Cow. (N. Y.) 641, text books and decisions state that a judgment lien cannot be discharged by tender. There must be actual payment. The argument is that so long as the judgment remains a lien it furnishes a basis under the statute for the right to redeem. But there is quite a unanimity among the authorities, in states where the mortgagee's estate is considered a lien or pledge merely, that a tender of the debt discharges the lien. Kortright v. Cady, 21 N. Y. 343, 78 Am. Dec. 145; Moore v. Norman, 43 Minn. 428, 45 N. W. 857, 9 L.R.A. 55, 19 Am. St. Rep. 247. That there are inherent differences in the quality of a judgment lien and a mortgage lien which Justify the rule that a tender of payment of one does not discharge a tract of land from its lien, while it does as to the other, may be doubted. The owner of the debt in either case may voluntarily release any real estate from the one as well as from the other without discharging any part of the debt. Be that as it may, this court has recognized the distinction in Rother v. Monahan, 60 Minn. 186, 62 N. W. 263. But that case also clearly establishes the principle applicable here, namely, that a tender of payment of a judgment by the judgment debtor destroys and extinguishes the right to make the judgment the basis for a redemption. It may well be that, before any notice of intention to use the judgment as against any particular land is filed, a tender of payment does not impair or destroy the judgment creditor's right to make use of or enforce the judgment generally. But when, after he has so done, the judgment debtor tenders payment, the creditor must accept the money and let that land alone. Any further attempt to proceed against the land in question after such tender must be considered wrong. ful. Mr. Justice Mitchell thus states the [45] view of the court in the case cited: "The act of the defendant in attempting, under the circumstances, to use this judgment for redemption purposes was wholly in his own wrong. lf, under similar circumstances, he had attempted to enforce the judgment by execution, a court would have unquestionably enjoined him from doing so, or, if a sale had been made on the execution, set it aside as wrongful, and an abuse of the process of the court, and compelled defendant to accept the tender and satisfy his judgment. Mason v. Sudam, 2 Johns Ch. (N. Y.) 172. The same principle applies where, as in this case, the defendant has wrongfully attempted, notwith

standing the tender, to use the statutory process of redemption for the purpose of collecting his judgment out of this land. It is wholly immaterial what the object of the debtor and mortgagor was in making the tender, even if it was to prevent a redemption by defendant. He must be presumed to have some interest in preventing such a redemption. It may be that he had made some advantageous arrangement with the plaintiff, the holder of the certificate of sale. But what his intent or motive was it is not for the courts to inquire. He had a legal right to pay the judgment, and thereby prevent a redemption by defendant. Defendant's duty and only right, under the circumstances, was to accept the tender and satisfy the judgment. His refusal to do so and his attempt to use his judgment for redemption purposes were wrongful and a clear abuse of the statutory right of redemption. The court will, under such circumstances, set aside the attempted redemption, and compel defendant to do what he ought to have done in the first instance,— accept his money and satisfy his judgment.” And we think it has been definitely determined in Roberts v. Meighen, 74 Minn. 273, 77 N. W. 139, that it is not necessary, in order to make the judgment creditor's attempt to redeem wrongful, that the judgment debtor prior to redemption bring the money into court and commence suit to compel satisfaction of the judgment. In that case payment was merely tendered, no money was brought into court and no action brought until after redemption. The point was distinctly made in appellant's brief that such tender was not sufficient to destroy the right to use the judgment as a basis for redemption. Chief Justice Start, who tried the case [46] of Rother v. Monahan, supra, in the court below and therein adverted to the rule that tender of payment of a judgment does not release its lien on real estate, writes the opinion sustaining the court below in the ruling that the tender as made destroyed the right to use the judgment for redemption

purposes.

Is any defendant in position to object to plaintiffs' redemption? When the owner fails to redeem from a mortgage foreclosure sale, the purchaser acquires the title the owner had when the mortgage was given. If lienholders redeem under the statutory provisions, the title acquired by the purchaser at the foreclosure sale is thereby vested in such redemptioners. Even when the redemptioner has no right to make it, or does not conform to the law in so doing, the title nevertheless passes to him, if the one from whom redemption is made accepts the redemption money, unless there exists some lienholder whose redemption is interfered with or prejudiced. Willard v. Finnegan, 42 Minn. 476, 44 N. W,