Kelley v. Clark

• Decision Date: 27 August 1912
• Citation: Kelley v. Clark, 23 Idaho 1, 129 P. 921 (Idaho 1912)
• Parties: L. M. KELLEY, Respondent, v. C. K. CLARK, Appellant
• Court: Idaho Supreme Court

129 P. 921

23 Idaho 1

L. M. KELLEY, Respondent, v. C. K. CLARK, Appellant

Supreme Court of Idaho

August 27, 1912

ACTION TO QUIET TITLE-EVIDENCE-SUFFICIENCY OF-MORTGAGE-FORECLOSURE SALE-REDEMPTION MONEY-TENDER OF-REFUSAL-EQUITY.

(Syllabus by the court.)

1.The evidence held sufficient to support the finding of fact that a legal tender was made for the purpose of redeeming the mortgaged property from foreclosure.

2.Under the provisions of sec. 4494, Rev. Codes, if the purchaser at a foreclosure sale refuses to accept a lawful tender of the redemption money, he does so at his own risk and his refusal will not prevent the legal effect of the tender to defeat the sale and to extinguish the purchaser's interest in the mortgage lien.In such a case, the tender ipso facto discharges the mortgage lien, and is equivalent to payment of the mortgage debt so far as the mortgage lien is concerned; and the debtor is not required to keep the tender good, but the purchaser at such a sale is remitted to his action at law for the recovery of the money which still remains due on the mortgage debt provided the debtor refuses to pay it.

3.To hold that the tender must be kept good would completely nullify said provision of said section 4494, Rev. Codes, and inject therein a provision not contemplated by the legislature.

4.Held, under the facts of this case that the equities are with the plaintiff, and that the court did not err in quieting title in him.

(Ailshie J., dissenting.)

APPEAL from the District Court of the Third Judicial District for Ada County.Hon. John F. MacLane, Judge.

Action to quiet title to real estate.Judgment for plaintiff.Affirmed.

Judgment of the trial court affirmed, with costs in favor of the respondent.

Martin & Martin, B. F. Neal and Dean Driscoll, for Appellant.

In view of the serious consequences to an owner of a mortgage upon refusal of a tender, which may often amount to an absolute loss of the entire debt, and the strong temptation which must exist to contrive merely colorable and sham tenders not intended in good faith, the evidence should be so full clear, and satisfactory as to leave no reasonable doubt that the tender was made.(Potts v. Plaisted,30 Mich. 149;Proctor v. Robinson,35 Mich. 284;Tuthill v. Morris,81 N.Y. 94;Forrester v. Scoville,51 Mo. 268;Marlowe v. Benagh, 52 Ala. 112.)

Sec. 4494, Rev. Codes, calls for a tender of the money and not a written tender, and this section is a special provision, and the money must have actually been produced and tendered.(Colton v. Oakland Sav. Bank,137 Cal. 376, 70 P. 225;Hyams v. Bamberger,10 Utah 3, 36 P. 202;Ladd v. Mason,10 Ore. 308;Kuhns v. Chicago M. & St. P. Ry. Co.,65 Iowa 528, 22 N.W. 661;28 Am. & Eng. Ency. of Law, 531;Doak v. Bruson, 152 Cal. 17, 91 P. 1001.)

Good faith is a necessary element of the tender.(Leet v. Armbruster,147 Cal. 663, 77 P. 653;Hyams v. Bamberger, supra;28 Am. & Eng. Ency. of Law, 31;Moore v. Norman,52 Minn. 83, 53 N.W. 809, 38 Am. St. 526, 18 L. R. A. 359;Mann v. Roberts, 126 Wis. 142, 105 N.W. 785.)

The creditor is entitled to a reasonable time to determine whether he will refuse or accept the tender.He should have reasonable time and opportunity to examine and determine the sufficiency of that which is tendered, and to ascertain his rights in the premises.(28 Am. & Eng. Ency. of Law, 16, and cases cited.)

It is the rule undoubtedly that the tender discharges the security, but to produce such serious and heavy consequences the refusal must have been unqualified and unaccompanied by any bona fide claim of right, which was supposed by the party to justify his refusal.(Union Mut. Life Ins. Co. v. Union Mills Plaster Co.,37 F. 286, 3 L. R. A. 90.)

The statute has provided that a tender shall operate as a discharge or redemption.What the conditions of that tender should be is not provided by the statute, and it certainly cannot be allowed that the legislature meant to change in any way by the statute the rules of tender governing in either common law or in equity, and in equity such tenders must always be kept good.(28 Am. & Eng. Ency. of Law, 39, and cases cited;Ruppel v. Missouri Guarantee etc. Assn.,158 Mo. 613, 59 S.W. 1000;Landis v. Saxton,89 Mo. 375, 1 S.W. 359;Werner v. Tuch,127 N.Y. 217, 27 N.E. 845, 24 Am. St. 443;Shugart v. Pattee,37 Iowa 422;Murray v. O'Brien, 56 Wash. 361, 105 P. 840, 28 L. R. A., N. S., 998.)

When the debtor seeks affirmative relief of an equitable nature, he must have kept his tender good, or at least come before the court in an attitude of willingness to pay what is due from him.(Hole v. Van Duzer,11 Idaho 79, 81 P. 109;Portneuf Lodge v. Western Sav. etc. Co.,6 Idaho 673, 59 P. 362;Hall v. Arnott, 80 Cal. 348, 22 P. 200.)

The refusal must have been unqualified and unaccompanied by any bona fide claim of right which was supposed by the party to justify his refusal.(Waldron v. Murphy,40 Mich. 668;Canfield v. Conkling,41 Mich. 371, 2 N.W. 191;Gerdine v. Menage,41 Minn. 417, 43 N.W. 91;Benson v. Bunting,127 Cal. 533, 59 P. 991, 78 Am. St. 81;Myer v. Hart,40 Mich. 517, 29 Am. Rep. 553;Lane v. Holmes,55 Minn. 379, 57 N.W. 132, 43 Am. St. 508;Reynolds v. Price,88 S.C. 525, 71 S.E. 51;overrulingSalinas v. Ellis, 26 S.C. 337, 2 S.E. 121.)

The lien of a mortgage will not be discharged because of the mortgagor's refusal to accept a tender of the mortgage debt where that refusal is under the mistaken and bona fide belief as to the mortgagor's legal rights, though refusal is without legal right.(Crain v. McGoon,86 Ill. 431, 27 Am. Rep. 37;Renard v. Clink, 91 Mich. 1, 51 N.W. 692, 30 Am. St. 458.)

Alfred A. Fraser and Robert R. Wedekind, for Respondent.

Where there is a conflict in the evidence, the findings of the trial court will not be disturbed.(Deeds v. Stephens,10 Idaho 332, 79 P. 77;Robertson v. Moore,10 Idaho 115, 77 P. 218;Abbott v. Reedy,9 Idaho 577, 75 P. 764;Cowden v. Finney,9 Idaho 619, 75 P. 765;Cowden v. Mills, 9 Idaho 626, 75 P. 766.)

To effect a redemption from a mortgage it is not necessary for the mortgagor to tender, nor can the mortgagee demand, the payment of any debt or claim not included in and covered by the mortgage, although it be a just debt due from one to the other.(Parmer v. Parmer,74 Ala. 285;Veach v. Schaup,3 Iowa 194;Hays v. Cretin,102 Md. 695, 62 A. 1028, 4 L. R. A., N. S., 1039;Weller v. Summers,82 Minn. 307, 84 N.W. 1022;Bacon v. Cottrell, 13 Minn. 194.)

The right of redemption is purely statutory, and it depends upon the construction of the statute as to whether or not the tender of the amount due releases the lien.Our statute bearing upon the subject is found in sec. 4494, Rev. Codes.This statute is taken from California, and has been construed by the supreme court of that state in a number of cases.The one distinguishing feature between this statute on redemption and the statutes generally enacted in other states is found in the last sentence, to wit: "And the tender of the money is equivalent to payment."

Sec. 4493, Rev. Codes, provides, among other things: "If the debtor redeem, the effect of the sale is terminated and he is restored to his estate."

The leading case in California construing these statutes is Leet v. Armbruster,147 Cal. 663, 77 P. 653.See, also, Hershey v. Dennis,53 Cal. 77;Phillips v. Hagart,113 Cal. 552, 45 P. 843, 54 Am. St. 369;Haile v. Smith,113 Cal. 656, 45 P. 872;Bunting v. Haskell,152 Cal. 426, 93 P. 110;Ball v. Stanley, 5 Yerg. (Tenn.) 199, 26 Am. Dec. 263;Salinas & Son v. Ellis,26 S.C. 337, 2 S.E. 121;Mitchell v. Roberts,17 F. 779;Moore v. Norman,43 Minn. 428, 45 N.W. 857, 19 Am. St. 247, 9 L. R. A. 55;Flanders v. Chamberlain,24 Mich. 305;Bartell v. Lope,6 Ore. 321;Mitchell v. Vermont Copper Co.,67 N.Y. 280;Cass v. Higenbotam,100 N.Y. 248, 3 N.E. 189;Balme v. Wambaugh,16 Minn. 116;Nelson v. Loder,132 N.Y. 288, 30 N.E. 369;Kortright v. Cady,21 N.Y. 343, 78 Am. Dec. 145;Werner v. Tuck,127 N.Y. 217, 27 N.E. 845, 24 Am. St. 443;Mitchell v. Roberts,17 F. 779;Haynes v. Thom,28 N.H. 386;Jones on Mortgages, sec. 886;Halpin v. Phoenix Ins. Co., 118 N.Y. 166, 23 N.E. 482.

SULLIVAN, J. Stewart, C. J., concurs.AILSHIE, J., Dissenting.

OPINION

SULLIVAN, J.

On August 10, 1909, the district court in and for Ada county entered a judgment and decree in favor of C. K. Clark for the sum of $ 3,131.34, and adjudged and decreed the foreclosure of a certain mortgage on real estate situated in Boise City and for the sale of the property in payment of the judgment.In pursuance of this judgment and decree, the property was sold on the 2d day of October, 1909, and was bid in by C. K. Clark, the plaintiff in that action, who is defendant and appellant in this action.The time for redemption of the premises expired on October 2, 1910.

The whole controversy involved in this appeal centers in the transactions which took place between the parties on September 30, 1910, which was two days before the expiration of the period of redemption.On October 4, 1910, the sheriff of Ada county executed and delivered to Clark, the purchaser at the foreclosure sale, a sheriff's deed to the property, and thereafter and on October 7th, Kelley commenced his action in the district court to quiet his title to the premises and secure a cancelation of the sheriff's deed.Judgment was entered in favor of the plaintiff and the defendant Clark appeals.

The property had originally belonged to, and the mortgage had been executed by, John I. Wells and wife.The foreclosure had been against Wells and wife.On September 30, 1910, Wells and wife executed and delivered a deed to the property in favor of L. M. Kelley.Kelley succeeded...