Sophia Bacon, et al. v. Margaret Conn, 1 Miss. (S. & M. Ch.) 348

By the Chancellor. Two questions are presented to me, by the facts of this case : 1, as to the sufficiency of the tender, and 2, as to the defendant’s claim to dower in the premises. It is contended, in the answer of Mrs. Conn, that the alleged tender, by the complainant, was coupled with a condition that she was not bound to comply with, and which destroyed its claims to be considered a legal tender. And her counsel, in argument, insist strenuously, upon the same position.

If the position taken in argument be true, that the tender was made upon a condition, not obligatory upon the defendant, it would not be a legal tender. To constitute a valid tender it müst be unconditional, and must always be of a definite and certain character. Eastland v. Longshorn, 1 Nott & M’Cord, 194 ; Evans v. Judkins, 4 Camb. 156 ; Huxham v. Smith, 2 Camp. 21. It becomes, then, important to inquire how far the position assumed is sustained by the facts.

The language of the bill upon that subject is this : “ That on the 23rd day of March, 1841, within twelve months from said sale, your oratrix, Sophia Bacon, learning, for the first time, that said lot had been sold for taxes, did, on that day, tender to said Margaret Conn, the sum’so paid by her, and all charges since her said purchase, if any, and interest at the rate of one hundred- per centum per annum, and requested said Margaret Conn to inform her, if she had any other claim for taxes or charges than as thus above stated, and to receive the same, payment of which was then tendered ; and that, upon such receipt, said Margaret Conn would deliver up, cancel, or transfer to said Sophia Bacon, and the other parties interested in said lot, the deed so acquired from the tax-collector, and also give possession of said lot 90, in square 16.” The bill goes on to say, that “ the said Margaret, not objecting to the amount or form of said tender, but admitting the sufficiency thereof, refused to receive the money, and to comply with the requests aforesaid.” The answer of Mrs.

Conn, admits the offer to pay the entire sum that was due to her, but states, that “ said offer of Sophia Bacon was coupled with conditions, set forth in said bill, which this respondent could not, and would not, comply with;” she denies, therefore, the legality of the tender; and this is the point for my decision'. I can have no doubt, that if the demand of possession of the premises had been made by the complainant as a condition precedent to the payment of the tendered money, that it would not have amounted to a legal tender. (Glascot v. Day, 5 Esp. N. P. C.48 ; Ryder v.

Lord Townsend, 7 D. & R. 119, cited by defendant’s counsel, where it was held, that even the demand of the receipt, for the money tendered, vitiated the tender.) But I apprehend it will be found, upon a close examination of the statements of the'bill upon that subject, and the admissions of the answer, that the tender, in this case, was a full, adequate, and absolute tender of the money due, trammelled with no condition whatever.

That the money offered was in amount equal to the sum due, and that it was offered within the proper period, as limited by statute, are facts not more explicitly stated than explicitly admitted. The bill states, that on the 23d of March, the complainant tendered the sum due. Had it stopped there, the defendant could have made no objection.

The obnoxious qualification would not have existed; but the bill continues, and states, that the complainant requested the defendant to disclose whether or not she had any other claims for taxes, and if so to declare them and she would pay them, and that upon their receipt, the defendant would deliver up her tax deed to be cancelled, and would give possession of the lot to those entitled to it.

Claiming the latter, by virtue of her supposed right of dower, she refused to deliver the possession, and rejected the tender, because, as she alleges, the bill states it was made on condition she would transfer the possession; she did not make this objection at the time, to the complainant, but peremptorily refused to receive the sum offered to her, assigning no reason for it; or, at least, if any was assigned, it does not appear to me, either from the bill or' answer, and no proof has been made by either party on the subject of the tender.

From the silence of the defendant on that point, the inference is a fair, just, and doubtless true one, that her refusal to receive the tender was unqualified. Had she stated her objection at the time, it might, if it existed at all, have been removed.

The object of the complainant seems to have been to free the property from the difficulty occasioned by the tax sale, and her tender was promptly made, as soon as .knowledge of the sale reached her, and she would doubtless have relieved it from the alleged obstacle, if the defendant, as in good faith she was bound to have done, had disclosed her objections to the form and wording of the tender, and given the complainant an opportunity to remove them.

The inclination of my mind, and of the authorities, is, that this silence of the defendant, as to objections to the mode of the tender, accompanied with a peremptory refusal to receive the money offered, would forever preclude the defendant from urging at any subsequent period any such objection. It is not necessary, however, for me so to decide in this case. From a careful examination of the allegations of the bill, and an inspection of the guarded denials of the answer, I think it is apparent that the tender in this case was unobjectionable.

The supposed conditions were not attached to the tender, and formed no part of it; they were mere requests of the most reasonable kind, made after the tender, compíete and perfect in itself, had been formally made. The tender and requests were both refused. And the defendant cannot now be permitted to give as a reason for refusing the tender, that which-at the time was not a condition attached to it, and the refusal to comply with which was in keeping with the rejection of the money tendered, and naturally grew out of it.

I consider this objection to the relief prayed for as invalid, and, unless I find something in the other objection more tenable, I shall make the decree asked. The bill alleges, that the defendant united with her husband in the deed, to Joseph and others, of the 10th of March, 1836 ; the answer denies the execution of such a deed; and the one offered in evidence is dated not the 10th, but 13th of Marchy 1836. The variance is fatal. The deed must be excluded as testimony.

If this is a mistake, or oversight of counsel, as I must suppose it to be, and the fact is so shown to me, I shall grant the complainant leave to amend, and insert the true date of the deed. The deed of the 13th of March is properly executed, the relinquishment of dower is in due form, and if the deed alluded to in the-bill, with which it in all respects corresponds, except the dates, it completely disproves the denials of the answer, on'the subject of the defendant’s dower interest in the property.

If the mistake in the date of the deed can be agreed upon by counsel, and corrected by their consent, I am prepared to pronounce a decree for the complainant. It was said in argument, that the complainant’s remedy wTas at law ; this may be true, so far as the recovery of the possession of the property extends ; with reference to the cancelment of the tax deed, however, the case is clearly one for equitable cognizance ; and also for the purpose of having an account with reference to the rents.