authorize the recovery of any sum.' It has been held that an answer under the code must allege that the money has been brought into court; and if it omits this allegation it does not state facts sufficient to constitute a defense, and the plaintiff may avail himself of the objection on the trial. And if issue be joined on the plea of tender where the money has not [469] been brought into court, it has been held that judgment should be given for the plaintiff, notwithstanding a verdict in favor of the defendant on that issue. But in other cases the omission to pay the money into court has been treated as an irregularity. And if the plaintiff accept the plea and reply thereto without receiving notice that the money has been paid in he waives the irregularity. The plaintiff is entitled to the money paid into a court of law, with a plea of tender, in any event. He may take it out, 3 Claflin v. Hawes, 8 Mass. 261. 4 Woodruff v. Trapnall, 12 Ark. 640; Sheriden v. Smith, 2 Hill, 538; Shepherd v. Wysong, 3 W. Va. 46; Roosevelt v. New York & H. R. Co., 30 How. Pr. 226. In this case the defendant set up in the answer a tender without paying the money into court. This answer was accepted, and the plaintiff afterwards applied to the court for an order requiring the defendant to pay to the plaintiff the sum tendered, under a provision of the code that "when the answer of the defendant expressly, or by not denying, admits part of the plaintiff's claim to be just, the court, on motion, may order defendant to satisfy that part of the claim, and may enforce the order as it enforces a judgment or provisional remedy.". The tender was held to be such an admission. The court say: "The money tendered in this case was not paid into court, and it is to be inferred from the fact that the answer is treated as part of the pleadings that it is accepted without the money being paid in. On the facts before me I must treat the plea of tender as sufficient. although the money has not been paid into court. But if the tender was irregular for the reason stated, the admission of the justice of the plaintiff's claim would be none the less distinct and unequivocal." See, also, Merritt v. Thompson, 10 How. Pr. 428; Thurston v. Marsh, 5 Abb. 389. 5 Foster v. Napier, 74 Ala. 393; Taylor v. Brooklyn E. R. Co., 119 N. Y. 561; Kansas City T. Co. v. Neiswanger, 27 Mo. App. 356; Dillenback v. The Rossend Castle, 30 Fed. Rep. 462; Supply Ditch Co. v. Elliott, 10 Colo. 327; Sweetland v. Tuthill, 54 Ill. 215. See Ruble v. Murray, 4 Hayw. 27. If money paid into court in a suit for unliquidated damages is taken out in good faith by the plaintiff's though he replies that the tender was not made before action brought. But the rule that the plaintiff is entitled absolutely to the amount tendered and paid into court has been held not to apply to an action brought to recover a penalty or other fixed amount, where, unless the plaintiff recovers the amount of the penalty or fixed sum, he is not entitled to judgment. Nor is it applicable to money paid into court by the plaintiff on a bill in equity to redeem, where the defendant for whom such money is paid successfully contests the right to redeem. By withdrawing money paid into court the solicitor and paid to his client the solicitor cannot be compelled to repay it after his client's death. Davys v. Richardson, 21 Q. B. Div. 202. question on the ground of equity or mistake, or any ground except fraud or imposition. "But the character of a payment 1 Le Grew v. Cooke, 1 Bos. & Pul. of money into court on a bill in equity 332. 2 Canastota & M. Plank R. Co. v. Parkill, 50 Barb. 601. 3 Putnam v. Putnam, 13 Pick. 129. In this case Shaw, C. J., said: "There is no analogy between the payment of money into court in a commonlaw action of debt or assumpsit and a like payment upon a bill in equity to redeem under our statute, and hence the authorities applicable to the former case afford no rule governing the present. By payment into court, in an action claiming debt or damages, the defendant admits, in the most formal manner, his absolute liability to that sum, and by the form of the rule or plea offers it in satisfaction and discharge of such admitted liability. If not accepted it is paid into court for the plaintiff's use, and the defendant derives the full benefit of it as if paid to and accepted by the plaintiff himself, because it operates as a bar pro tanto to all claims in respect to such sum. It is therefore upon the strongest reason held that such payment shall be deemed absolute, and the party shall not be permitted to draw it in to redeem a mortgage is entirely different. It is in its nature entirely provisional; it is an offer to pay in discharge of a debt secured by mortgage on real estate, the purpose of which is to release such real estate from the incumbrance. But the defendant contests the right to redeem ; alleges that, by force of law and the lapse of time, the mortgage is foreclosed, that she has become the ablute owner of the estate, and of course that there is no longer any debt secured by mortgage, and, consequently, that she has no claim to the money offered in satisfaction of such debt. This defense prevails, and the conclusion of law is that the defendant was right in rejecting the money tendered and not releasing the estate. She cannot now be allowed to claim this money against her own formal act showing that she has no title to it. Nor ought the plaintiffs to be bound by a provisional offer of money to redeem an estate, where it appears that they cannot redeem, and the payment cannot avail them for the only purpose for which the money was offered." plaintiff accepts it for the purposes for which it was paid; he cannot claim that it was merely payment on account.1 § 276. Effect of tender when money paid into court. [470] A mere tender of a sufficient sum only has the effect to stop interest and protect the debtor against subsequent costs. It does not discharge the debt. But when the debtor has kept the tender good, and on being sued regularly pleads it and brings the money into court, it accomplishes such discharge whether the action proceeds to judgment or not. If the [471] action abate or be withdrawn, the defendant in a subsequent action may plead the tender and payment into court in the first action; and if these facts are established he will be entitled to judgment.3 § 277. Effect of tender on collateral securities. A sufficient tender, however, will discharge all liens and collateral securities; and for this effect it need not be kept good, nor be brought into court. Thus, where a mortgage of real estate is a mere security for the debt and the legal title remains in the mortgagor precisely the same after as before the debt is due, and until there is a foreclosure, the tender of the amount 1 Haeussler v. Duross, 14 Mo. App. 282. Keys v. Roder, 1 Head, 19, was 103. 2 Bac. Abr., Tender, F.; Coke, Litt. 207; Law v. Jackson, 9 Cow. 641; Carley v. Vance, 17 Mass. 389; Haynes v. Thom, 28 N. H. 386, 400; Barnard v. Cushman, 35 Ill. 451; Raymond v. Bearnard, 12 Johns. 274; Coit v. Houston, 3 Johns. Cas. 243; Jackson v. Law, 5 Cow. 248; Cornell v. Green, 10 S. & R. 14. See Jeter v. Littlejohn, 3 Murph. 186; Staat v. Evans, 35 Ill. 455; Teass' Adm'r v. Boyd, 29 Mo. 131; Wheeler v. Woodward, 66 Pa. St. 158; Pennsylvania Co. v. Dovey, 64 id. 260; Dixon v. Clark, 5 C. B. 365; Waistell v. Atkinson, 3 Bing. 289; Johnson v. Triggs, 4 G. Greene, 97; Freeman v. Fleming, 5 Iowa, 460; Shant v. Southern, 10 id. 415; Mohn v. Stoner, 11 id. 30; Hayward v. Munger, 14 id. 516. 3 Robinson v. Gaines, 3 Call, 243. See Warder v. Arell, 2 Wash. (Va.) an action of debt commenced in a justice's court. It was held that a mere offer by the defendant to the plaintiff of the sum claimed before the issuance of the warrant could not be pleaded as a valid tender in bar of the action. The money should have been produced and offered also at the time of the trial before the justice; and upon appeal to the circuit court, it should have been brought into that court at the time of filing the papers, and still held ready and produced as a continuous offer. A mere offer of the amount to the plaintiff by the defendant's counsel, in the progress of the argument in the circuit court, was not sufficient. 4 Willard v. Harvey, 5 N. H. 252; Swett v. Horn, 1 id. 332; Maynard v. Hunt, 5 Pick. 240. due after the law day and before foreclosure will discharge the mortgage; and if the mortgagee is in possession the mortgagor may recover in ejectment. But to establish a tender and refusal such as will discharge the lien of a mortgage without the tender being kept good, the proof must be clear that the tender was fairly made and deliberately and intentionally refused by the owner of the mortgage, and that sufficient opportunity was afforded to ascertain the amount due; at least it should appear that a sum was absolutely and unconditionally tendered sufficient to cover the whole amount due.? Though the tender be sufficient, yet if the mortgagor asks for affirmative relief, even for extinguishment of the lien, he must do equity; this obliges him to keep the tender good; he must pay the amount equitably due the mortgagee. Where the incidents attached to a mortgage of real estate are those which prevailed at the common law, the mortgagee having an estate on condition which becomes absolute by reason of non-payment on the day named, a tender will not discharge the lien unless it is made punctually and is kept good. A tender will discharge a mechanic's lien for the repair of personal prop 1 Kortright v. Cady, 21 N. Y. 343; S. C., 5 Abb. 358; Jackson v. Crafts, 18 Johns. 110; Edwards v. Farmers' F. Ins. & L. Co., 21 Wend. 467; Farmers' F. Ins. & L. Co. v. Edwards, 26 id. 541; Arnot v. Post, 6 Hill, 65; Post v. Arnot, 2 Denio, 344; Tiffany v. St. John, 5 Lans. 153; S. C., 65 N. Y. 314; Hartley v. Tatham, 1 Robt. 246; S. C., 1 Keyes, 222; Trimm v. Marsh, 54 N. Y. 599; McDaniels v. Reed, 17 Vt. 674; Eslow v. Mitchell, 26 Mich. 500; Caruthers v. Humphrey, 12 id. 270; Van Husan v. Kanouse, 13 id. 303; Saltus v. Everett, 20 Wend. 267; Salinas v. Ellis, 26 S. C. 337; Thornton v. Nat. Exchange Bank, 71 Mo. 221. See Harris v. Jex, 66 Barb. 232; Merritt v. Lambert, 7 Paige, 344; Ketchum v. Crippen, 37 Cal. 223; Bryan v. Maume, 28 Cal. 238; Wilson v. Keeling, 1 Wash. (Va.) 194; Werner v. Tuch, 52 Hun, 269. 2 Tuthill v. Morris, 81 N. Y. 94; Parks v. Allen, 42 Mich. 82; Jewett v. Earle, 53 N. Y. Super. Ct. 349; Waldron v. Murphy, 42 Mich. 668. 3 Tuthill v. Morris, 81 N. Y. 94; Landis v. Saxton, 89 Mo. 375. See Salinas v. Ellis, 26 S. C. 337. 4 Crain v. McGoon, 86 Ill. 431; Matthews v. Lindsay, 20 Fla. 962; Schearff v. Dodge, 33 Ark. 340; Alexander v. Caldwell, 61 Ala. 543; Greer v. Turner, 36 Ark. 17; Currier v. Gale, 9 Allen, 522; Holman v. Bayley, 3 Met. 55; Phelps v. Sage, 2 Day (Conn.), 151: Shields v. Lozear, 34 N. J. L. 496: Rowell v. Mitchell, 68 Me. 21; Storey v. Krewson, 55 Ind. 397; Collins v. Robinson, 33 Ala. 91; Slaughter v. Swift, 67 id. 494; Frank v. Pickens, 69 id. 369; Tompkins v. Batie, 11 Neb. 147. 2 erty; an attorney's lien; a pledge or mortgage of personal property; the right to distrain for rent; and will re- [472] lease a surety. Whether a judgment which is a lien on land, or under which an execution has been levied, will be discharged by a tender is not very clearly settled. It has been held that to make a tender effectual for this purpo. the money should be brought into court and the judgment satisfied of record. Being a debt of record, and a tender not discharging it, the lien being a legal consequence, must subsist while the debt continues in that form. But the weight of reason, if not authority, is in favor of holding an execution lien discharged by a tender the same as a conventional lien would be. In each case the lien exists as a collateral advantage to the creditor. It is incidental to the debt. In each case, if the lien is not satisfied, there is a power to sell. Payment will extinguish one as well as the other. A plea of tender should conclude by praying judgment [473] whether the plaintiff ought to recover any damages by rea 1 Moynahan v. Moore, 9 Mich. 9. 2 Stokes on Lien of Att'ys, 81, 172; Jones v. Tarleton, 9 M. & W. 675; Scarfe v. Morgan, 4 id. 280; Irving v. Viana, 2 Y. & Jer. 71. 3 Loughborough v. McNevin, 74 Cal. 250; McCalla v. Clark, 55 Ga. 53; Wildman v. Radenaker, 20 Cal. 615; Ball v. Stanley, 5 Yerg. 199; Cooley v. Weeks, 10 id. 141; Coggs v. Bernard, 2 Ld. Raym. 909; Comyn's Dig., tit. Mortgage, A. But not after the day it is due. Tompkins v. Batie, 11 Neb. 147. See Frank v. Pickens, 69 Ala. 369. Sickler, 64 N. Y. 231; Second Nat. 6 Jackson v. Law, 5 Cow. 248; Law v. Jackson, 9 id. 641; Halsey v. Flint, 15 Abb. 367. See Shumaker v. Nichols, 6 Gratt. 592; Flower V. Elwood, 66 Ill. 447, 449; Redington v. Chase, 34 Cal. 666. But see also Mason v. Sudam, 2 Johns. Ch. 172; Tiffany v. St. John, 5 Lans. 153; S. C., 65 N. Y. 314. 7 Tiffany v. St. John, 65 N. Y. 314. In this case Dwight, C., said: "There is, undoubtedly, a stage in a proceeding in an action where property is in 4 Hunter v. Le Conte, 6 Cow. 728; the custody of the law, that a tender Davis v. Henry, 63 Miss. 110. 5 Spurgeon v. Smitha, 114 Ind. 453; Joslyn v. Eastman, 46 Vt. 258; White v. Life Ass'n of America, 63 Ala. 419; McQuesten v. Noyes, 6 N. H. 19; Sailly v. Elmore, 2 Paige, 497; Fisher v. Stockebrand, 26 Kan. 565; Hayes v. Josephi, 26 Cal. 535; Solomon v. Reese, 34 id. 28. Compare Clark v. VOL. I-36 will not destroy the lien, as that might interfere with the proper disposition of the case. After the action is over, and judgment obtained, and execution levied, the case becomes clearly assimilated to that of an ordinary lien; and if tender is made and not accepted the lien will be extinguished. This distinction |