Morrison v. Jacoby

• Decision Date: 07 March 1888
• Docket Number: 12,833
• Citation: 15 N.E. 806,114 Ind. 93
• Parties: Morrison et al. v. Jacoby et al
• Court: Indiana Supreme Court

15 N.E. 806

114 Ind. 93

Morrison et al. v. Jacoby et al

No. 12,833

Supreme Court of Indiana

March 7, 1888

Original Opinion of December 22, 1887, Reported at: 114 Ind 84.

OPINION

Elliott, J.

The appellees' counsel, in their brief on the petition for a rehearing, thus state the point which they argue "Though other questions are stated in the petition for a rehearing, the only one which we desire to present is whether the complaint, or any paragraph of it, is bad because it is not averred that the money alleged to have been tendered to Morrison is brought into court for his use and benefit."

The contention of counsel is, that an averment that the plaintiffs "are able, ready and willing to pay, and offer to pay, whatever sum shall be found or adjudged the defendant in this action on account being taken, or otherwise, and they offer to pay whatever sum the court shall adjudge in this case," is sufficient, and that it is not necessary to bring the money into the court for the benefit of the defendant. The argument proceeds upon the theory that the equity rule that an offer without an actual tender is sufficient, governs the case, and we are referred to the cases which hold that in suits for specific performance a strict tender is not necessary. These authorities are, it is manifest, not in point in an action like this, where the plaintiff asks to be relieved from a demand which the law imperatively made it his duty to pay, and which another had paid for him. But the cases are by no means harmonious upon this question, even in cases of specific performance, for, as Mr. Pomeroy shows in his note, many of the cases require a strict tender. 3 Pomeroy Eq. Jur., p. 453, n.

As we said in our former opinion, there are cases where an offer to pay should be deemed sufficient, as, for instance, where the amount can not be ascertained without an accounting and an adjustment of the accounts between the parties; but we showed, as we still think, upon principle and authority, that a taxpayer should not be allowed to secure the cancellation of a tax certificate merely upon an offer to pay when the decree is entered. He ought not to be allowed to secure a cancellation of the certificate without paying, or at least making a strict tender of the money which it was his duty to pay, and which he admits to be due, for the duty is incontestable, and there is no need for an accounting nor for an adjustment of accounts.

There are cases where an offer is all that need be pleaded, as, for instance, where the plaintiff is bound to pay only on condition that the defendant execute a deed to him. Of that class are the cases cited by appellees. Hunter v. Bales, 24 Ind. 299; Lynch v. Jennings, 43 Ind. 276.

By no possible stretch within the bounds of reason can that class of cases be made relevant here, for here there is no condition; the plaintiffs are bound absolutely and unconditionally to pay what the defendant paid for them before they can secure a cancellation of his certificates or a destruction of his lien. There is a condition precedent to their right of relief, but not the semblance of a condition obstructs the defendant's right to the money paid for the plaintiffs.

We are referred to this statement of Mr. Pomeroy: "In general the rules of equity concerning the necessity of an actual tender, are not so stringent as those of the law." 3 Pomeroy Eq. Jur., p. 453, n.

This we affirmed in our former opinion; but we also affirmed that in a case like this equity required a strict tender. Mr. Pomeroy, in the same note to which counsel refer, cites authority showing that there are cases where an actual tender is required. If there are such cases it is difficult to perceive why this is not one of them, for it is not easy to conceive one in which equity more strongly demands either an actual payment or an absolute tender.

Counsel say: "We ask the careful attention of the court to the following tax cases decided by the Supreme Court of the United States: Bennett v. Hunter, 76 U.S. 326, 9 Wall. 326, 19 L.Ed. 672; Tacey v. Irwin, 85 U.S. 549, 18 Wall. 549, 21 L.Ed. 786; Atwood v. Weems, 99 U.S. 183, 25 L.Ed. 471; Hills v. Exchange Bank, 105 U.S. 319, 26 L.Ed. 1052." These cases have had careful study, but without benefit to the appellees. In these cases it is decided that a tender, under the act of Congress, before a sale for direct taxes, is valid, although not made by the owner of the property. Obviously, they do not bear upon the case before us, where the question is, what must be done by the taxpayer to secure the cancellation of a certificate issued after sale to a purchaser who has acquired the lien of the State?

At least one of the distinguished members of the Supreme Court has emphatically declared a doctrine directly opposed to that for which appellant contends. We refer to the case of Bailey v. Atlantic, etc., R. R. Co., 1 Cent. L. J. 502, where Mr. Justice Miller, Dillon and Treat, JJ., concurring, declared that an allegation that the plaintiff "is ready and willing to pay" is not sufficient. We may observe here, as well as elsewhere, that in the well reasoned case of Hagaman v. Commissioners, 19 Kan. 394, that decision is fully approved.

The case of Smith v. Humphrey, 20 Mich. 398, does not decide what is required in a case like this, for the question of the sufficiency of the bill upon the point here involved was not before the court. It was neither discussed nor decided. It is true that the court reversed the case, with instructions to modify the decree so as to require the plaintiff to pay the sum due, but it did not discuss the question we have before us. The court said: "But although we think the circuit judge was right in his construction of the act of 1869, we do not understand the principle on which he enjoined the sale of the lands, without making it a condition that the complainant should pay the sum which was lawfully demandable, and which had been previously tendered." This exhibits the point of the decision, so far as it even remotely approaches the question here under discussion, and certainly the case can not be considered as authority upon that question.

We have thus examined the cases outside of our own reports to which the appellees refer, and we feel confident that they do not conflict with what we here decide, or what we have heretofore decided, nor with what the authorities cited in our former opinion declare.

We have not contented ourselves with an examination of the authorities cited by counsel, but have searched for others. We find, as we declared in our original opinion, and declare in this, that in many cases, but not in all, an offer is sufficient in equity where a strict tender would be exacted at law. An offer is not in strictness a tender, nor, as appears, when we go to the foundation, is it so regarded in equity. This a simple illustration will make clear. It is necessary, in a case like this (and so much the counsel concede), to make a tender of lawful money before suit, and surely an offer would not supply the place of a tender. We suppose no one will contend that a mere offer would be sufficient. At all events, if an offer is the same as a tender, all our decisions, from first to last, are radically wrong. It is not, we affirm, the same as a tender; and an offer where a tender is required, whether in law or in equity, whether before suit or after suit, can not take the place of a tender.

There was a reason for the equity doctrine of offer or modified tender in former times which does not now exist, and where the reason of a rule fails, so, also, does the rule. The reason for the rule was that, where the mortgagor failed, or where one occupying a similar position failed, in an effort to redeem from the mortgage, his adversary acquired an immediate title. No sale was essential. The title was lost at once. No other thing was essential to vest title in the one party and take title from the other except the decree barring the redemption. But it is now very different even in mortgage foreclosures. A sale is essential to divest the one party of title and vest it in the other. The holder of a lien under the present law does not obtain an immediate title. He can only acquire title after sale on the decree. He must suffer the delay incident to a sale, and, in ordinary cases, he must pay the expenses occasioned by it if he acquires title, for they are usually taken out of the bid or paid by him. It is very apparent, therefore, that the reason for the old rule has entirely failed even with respect to mortgages.

Not only has the reason for the old rule failed even in mortgage foreclosures, but there was never any reason for applying it to the foreclosure of tax liens. It is unjust and unconscionable as applied to such liens. Not only does it burden one who assists the government in collecting its revenues with the annoyance of delay and expense, but it also, in effect, rewards one who has failed to do what it is the duty of every good citizen to do--contribute his just proportion to the maintenance of the government.

It was said, with great force and elegance, in Harrison v Haas, 25 Ind. 281, by Ray, J.: "The plaintiff has not waited until the defendant should bring his action for possession of the property, when his defence could be made in a court of law, but has asked the court to interfere under its equity power and protect him from the consequences of his own default. The complainant does not allege that the tax was illegal, but that through his own failure to pay what was due, the officer had proceeded to sell his real estate when he had personal property which was first liable to be sold. He now asks that the purchaser who has paid the tax due from him, and which was before sale a legal...