Jones v. Porter , 29 Tex. 456 ( 1867 )

Donley, J.

This was a suit by the plaintiff in error, who was plaintiff below, alleging that the various agreements made between himself and defendant were in effect a mortgage of the lands, for the purpose of securing the debt owing to defendant, and a prayer that he might redeem, &c.

A decree was made, that the appellant redeem on paying to appellee the debt ascertained to he due during the term of the court at which the same was rendered; and that, upon the payment of the money ascertained by the decree to be due the defendant, the lands be discharged from the incumbrance held by defendant on same, and from any claim or incumbrance by appellee, and the title to the same be vested in the plaintiff". And it was further provided, that if pay-meat be not made of the sum found to be due, during the term at which the decree was rendered, an order of sale issue, as in ordinary cases.

It is not believed that the plaintiff has been deprived of any legal right by this decree, or that he has just cause of complaint. His application to redeem should have been accompanied with a tender of what was due from him on the mortgage, (if the writings for his benefit may be so construed.)

A mortgagor, bringing a bill to redeem, must allege and prove payment, or tender the amount due. (Terrell v. Merrell, 17 Mass., 117.)

On a bill to redeem, a decree for the plaintiff" ought not, in general terms, to say that on paying the money, with in-_ terest, the mortgagee shall convey to the mortgagor the premises, but that such conveyance shall be made upon payment within a time stated, and, if not then made, the mortgagor shall be forever foreclosed of all equity of redemption, and the mortgaged premises be sold. (Turner v. Turner, 3 Mumf., 66.)

The only relief a court of equity can grant a mortgagor is, to allow him to redeem on a bill for that purpose. (Croft v. Ballard, 1 Smedes & Marsh. Ch., 366.)

When a mortgagor offers to redeem, he must tender the consideration money. (Ogle v. Ship, 1 A. K. Marsh., 287.)

Hpon a bill to redeem or set aside a mortgage, a redemption cannot be decreed unless the bill contains an offer to pay the amount found due on the mortgage for principal and interest. (Beekman v. Frost, 18 Johns., 544.) It certainly is an essential part of a bill to redeem a mortgage that it offer in express terms to pay the amount with costs. The bill usually states a prior tender of the money, and a refusal to accept it. (Beekman v. Frost, 18 Johns., 544.)

When a mortgagor comes into a court to obtain a sale of the mortgaged premises he must offer to redeem, and a suggestion of his poverty will not help him. (Goldsmith v. Osborn, 1 Edw. Ch., 560, 563.)

The defendant in error does not ask that the judgment be reversed, but submits that it may be affirmed. The objection urged by the plaintiff, that sufficient time was not given in which to redeem, it is believed was not well taken. In fact, it was upon his petition that the matter was brought before the courts and we have cited authorities that an application to redeem must be accompanied by an offer to pay the money due. The decree of the court required that the money should be paid during the term at which the decree was rendered. The court was not compelled on the petition to give time to redeem, and the refusal of time is not an error for which the appellant is authorized to reverse the judgment. There certainly is no ground of complaint now of the want of time in which to redeem; the defendant has been delayed since judgment more than seven years.

In an additional argument by plaintiff, at the, present term of the court, it is insisted that the two notes of $10,000 each, due July, 1861, and January, 1862, are founded on an illegal agreement to pay usurious interest. This objection is not well founded in fact. If the decree of the United States district court is to be taken as the consideration of the notes, the notes must be sustained, allowing that the decree, bearing the highest rate of interest legal to be contracted for and received, will exceed the amount of the notes.

It is further clearly shown, that the appellee purchased the lands at a sale made in pursuance of and under a decree of the United States district court. The court having jurisdiction to render the decree and order of sale under which the lands were sold, it cannot be held void or as an insufficient foundation for a decree.

If the sale to the appellee was legal, and vested the title to the lands in him, he might have sold to the appellant at a price greatly exceeding what the debt at the highest rate of legal interest would have amounted to. If the purchase at the marshal’s sale by the appellee, and his subsequent sale to the appellant, were made in the usual course of trade, and not for the purpose of covering a usurious transaction, the sale must be sustained. The evidence does not tend to show that the transaction was for any illegal purpose.

There is no error in the judgment of which the plaintiff can complain, and the defendant asks that it be affirmed, which is done.

Judgment aeeirmed.