Kelley v. Clark , 23 Idaho 1 ( 1912 )

ON REHEARING.

(February 10, 1913.)

SULLIVAN, J.

— The original opinion in this case was handed down August 27, 1912. Thereafter a rehearing was granted and the cause has been reargued and resubmitted for decision.

The writer of this opinion prepared the former opinion, and he does not intend by anything said in this opinion to change the views expressed in the former opinion in regard to the construction placed upon see. 4494, Kev. Codes, but we have concluded that since this is an equitable suit to quiet title, and as it appears from the record that the refusal to accept said tender was withdrawn within a very few hours after the tender was made, and that the redemption money was available at the time of the withdrawal of said refusal to accept the tender, it is only equitable and right to require the judgment debtor or his assignee to pay to the proper party the amount of money so tendered. One of the best established rules of equity is that he who seeks equity must do equity, and we think it only equitable, upon a review of all the evidence in this case, that the plaintiff or his grantor be required to pay to the defendant, or his assignee, the amount of money tendered for the redemption of the property, before a redemption can be made. If said money be not paid to the defendant or his assignee within thirty days from the date of this opinion, whatever title was procured at said foreclosure sale shall be quieted in the defendant.

The cause is remanded, with instructions to make findings and enter decree in accordance with the views expressed in this opinion, each party to pay his own costs on this appeal.

Stewart, J., concurs.