Thompson v. Lyon , 40 W. Va. 87 ( 1894 )

English, Judah:

By a deed dated the 14th day of May, 1873, Hugh Thompson conveyed to Thomas Thompson a tract of land, in consideration of three hundred and thirty three and one third dollars to be paid by said Thomas Thompson to Nancy J. Lyon and Elizabeth Payne equally, one year after the death of the said Hugh Thompson, and, to- secure the same, a vendor’s lien was therein retained on said tract of land until paid, and for the further consideration of natural love.

It appears that two. or three days before the expiration of the year after the death of said Hugh Thompson, the said Thomas Thompson went to the house of Nancy J. Lyon, and offered to pay her the sum of money she was entitled to under said deed, and counted the money down on a stand to her, and she said she could not take it, and did not take it.

On the 31st day of August, 1893, said Thomas Thompson had a notice served upon said Nancy J. Lyon that on the 14th day of September, 1893, he would move the Circuit Court of t'he County of Harrison to direct the clerk of the County Court of said county to execute a release of the lien reserved in a certain deed of conveyance made to Mm by-Hugh Thompson on the 14th day of May, 1873, to secure the payment to said Nancy J. Lyon and Elizabeth Payne of the sum of three hundred and thirty three dollars and thirty three and one third cents to be paid to them equally one year after the death of said grantor, Hugh Thompson, on the tract of land therein mentioned, describing it, as he had theretofore tendered her her portion of said sum and she refused to accept the same.

On the 14th day of September, 1893, an order was entered, in pursuance of said motion in which it is stated that the court Raving heard the evidence and argument, of counsel, and it appearing to said court that said Thomas Thompson duly tendered to the said Nancy J. Lyon her portion of said sum secured to her in said deed, in pursuance of the terms and provisions thereof, which she then refused to' receive, .and now here pays into court for the said Nancy J. Lyon, the sum of one hundred and sixty six dollars and sixty six and two third cents, her share'of the sum so secured to he paid her by said deed; and it further appearing that the sum due Elizabeth Payne has been paid her; and the court being now of opinion that Thomas Thompson is now entitled to have a release of the lien retained in said deed, which the said Nancy J. Lyon refuses to execute — it was ordered that P. M. Long, clerk of the County Court of Harrison county, do execute to said Thomas Thompson a release of the lien reserved in said deed for the benefit of the said Nancy J. Lyon, and that he the said Thomas, recover against her his costs herein expended; and from this order the said Nancy J. Lyon obtained this writ of error.

It is assigned as error that the court held there was a sufficient tender, although the same was made before the money was due. Now7, it must be conceded that the weight •of authority is that, where one party contracts to pay another money on a certain day, the tender, in order to be available, must be made on the day it falls due. When, however, we look at the circumstances of this transaction, it is apparent that there really was no contract between said Thomas Thompson and Nancy J. Lyon, by which he promised to pay her any money at any specified time. The deed which Hugh Thonipsón made to his son Thomas imposed upon him, as a condition precedent to his acquiring the title to said land, that he should pay to his sisters Nancy J. Lyon and Elizabeth Payne the sum of three hundred and thirty three dollars and thirty three and one third cents one year after the death ■of said Hugh Thompson. This length of time, one year, w7as allowed said Thomas Thompson as a favor, not by Nancy J. Lyon, but by his father, and she was no party to the contract fixing the date of payment, and she could not object if, in pursuance of the terms and conditions imposed upon liim by liis father’s deed, said Thomas paid said sum before the year expired. His father had conferred upon him the privilege of waiting a year before he paid said money, and Nancy J. Lyon could not complain if he did not exercise the privilege thus conferred to the last moment and to the fullest extent. Again, the money said Thomas was to pay was not bearing interest at the time he offered to pay it to her. Parsons on Contracts (volume 2, 8th Ed., top page 642) says: “It has been said that a tender can not be made-before the debt is due, as the creditor .is not then obliged to-accept it, even if it does not draw interest. But we should be inclined to believe that the courts of this country would generally hold a tender valid that was made before the debt was due, provided the debt did not draw interest, or if, when the debt did draw interest, the tender included interest to the maturity of the debt.” In speaking of the effect of the plea of tender, Prof. Minor, in his Institutes, volume 4, point 1, side page 611, says: “The effect of the plea of tender, in a few cases to which it is not needful to advert, is to extinguish the obligation; but, in general, it is merely to relieve the debtor from subsequent interest and costs”— citing Bac. Abr. “Tender,” F, where it is said: “The effect of a tender, when lawfully made, is to discharge the debtor from subsequent interest and costs.” See Jackson v. Law, 5 Cow. 248; also Raymond v. Bearnard, 12 Johns. 274.

As we have seen, the debt in the case under consideration did not bear interest at the time Thomas Thompson offered to pay the amount to his sister Mrs. Lyon, the year had not expired from the date of the death of Hugh Thompson, and it is difficult to perceive how -she could have been prejudiced by receiving the money at the time it was offered to her. The evidence shows that the money was counted down toiler, and, without assigning any reason whatever for her action, she simply said “she could not take it,” and -did not take it. Now, what is the effect of this conduct on the part of Nancy J. Lyon? Lawson in his work on Rights and Remedies, section 2534, says: “A. tender may be waived by the creditor either expressly or impliedly, as where he states that nothing is due him, and that he will accept nothing, or says, simply, that be will not receive tbe money or chattels.” So, in Litt. Sel. Cas.(Ky.) 204,it was beld, in tbe case of Dorsey y.Barbee, that “thepositive declaration of one towbom money is to be paid, witbin a certain time, that be will not receive it, will excuse tbe tender of tbe money, provided tbe declaration is made before tbe expiration of tbe time.” It was also beld by tbe Supreme Court of Tennessee in tbe case of Farnsworth v. Howard, 1 Cold. 216, that tbe production of tbe money is dispensed with if tbe party is ready and willing to pay, and is about to produce tbe money, but is prevented by tbe party to whom tbe money is going refusing to receive it; but tbis bare refusal to receive tbe amount proposed, and demanding more, is not, of itself, sufficient to excuse an actual tender. Again, in tbe case of Bellinger v. Kitts, 6 Barb. 274, it was beld that “tbe general rule is that a strictly legal tender may be waived by an absolute refusal to receive tbe money, on tbe principle that no man is bound to perform a nugatory act.” And in 10 Cush. 267, in tbe case of Hazard v. Loving, tbe court beld that, “ in making a tender, actual production of tbe money is not necessary, if tbe defendant refuses to receive it.” See, also, 2 Pars. Cont. p. 643. Tbis question was also before tbis Court in tbe case of Koon v. Snodgrass, 18 W. Va. 320, where it was beld that “tbe proper mode of making a legal tender is to actually produce and proffer tbe exact sum due; but tbis may be dispensed with by tbe party to whom tbe money is to be paid, when be refuses to receive tbe money, not on tbe ground that tbe money is not produced, nor on the ground that tbe amount produced was not tbe exact amount offered, but on some collateral and entirely distinct grounds;” and tbis case is quoted with approval in 38 W. Va. 80 (18 S. E. Rep. 379) by tbe court, in tbe case of Poling v. Parsons. Where tbe money is tendered in proper time, and is refused, all tbe elements of a technical tender are waived and the effect is precisely tbe same as if a tender, legal and proper in every respect, bad been made; just as where protest of a negotiable note is waived, the indorsers are bound to tbe same extent as if all tbe technicalities of a legal process bad been complied with, including notice, etc. To illustrate, Parsons on Contracts, volume 2, top page 642, says: “To make a tender of money valid, the money must be actually produced and proffered, unless the creditor expressly or impliedly waives this production, and he does this by declaring that he will not receive it.” In the case of Rudulph v. Wagner, 36 Ala. 698, the court held that “a tender of the amount due, including interest, at any time between the maturity of the debt and the commencement of the suit, stops the interest and discharges the debtor from the costs of the suit.” 2 Pars. Cont., at top page 638, speaking of the effect of a tender, says: “But it puts a stop to accruing damages or interest for delay in payment, and gives the defendant costs.” So in Curtiss v. Greenbanks, 24 Vt. 536, it was held that, “where money is “tendered and refused, the person tendering it is at liberty to use it as his own. All he is under obligations to do is to be ready at all times to pay the debt when requested.” And Lawson on Rights and Remedies (volume 5, § 2526) says: “The debtor must keep the money safely, so as to be ready at any time to produce it, but he may use it, and he need not have the identical money ready. * * * But the benefit of a tender is lost by subsequent demand and refusal.” And in Jackson v. Law, 5 Cow. 248, it is held that “the effect of a tender, when made in season is merely to discharge the debtor from subsequent interest.” It is not necessary to prove, under a plea of tender, that the identical money tendered was kept and brought into court. Colby v. Stevens, 38 N. H. 191. See also Railroad Co. v. Dunham, 30 Mich. 128.

Now, if Nancy J. Lyon refused to accept the money offered her by her brother Thomas Thompson, because it was offered to her a day or two before the year had expired since the death of their father, Hugh Thompson, she failed to assign that as a reason, and, as the amount was not bearing interest, it would have been very unreasonable in her to assign such a motive for rejecting the money. Why should she have objected to receiving the money if it had been offered to her one day or one week after the death of said Hugh Thompson? If she had received it, she could have invested it, and made it an interest bearing fund, instead of permitting it to lie idle in her brother’s hands. Why, then, should sbe insist that the last day of the year should arrive before she received the money? She did not, however, do this. She simply declined to receive it' without assigning any cause, and, so far as the record discloses, she never made any subsequent demand for it. As I read this clause in the deed, Hugh Thompson intended to say to his son Thomas, “You can have one year’s time in which to pay this purchase money to your sister”; but he never intended to say he could not pay it sooner, if he chose to waive the privilege conferred by the deed, and, while Nancy J. Lyon had no right to demand the money before the end of the year, she had no. right to prevent him from anticipating the payment for one or two days, or sis months, if he saw proper to do so.

There is a marked distinction between contracts made between parties for their mutual benefit, where one becomes a borrower of money because he wishes to use it in some business undertaking, and desires such use of it for a definite period, and the other loans it because he desires the interest at stated periods, and wishes to avoid the inconvenience and trouble of making reinvestments at short periods, and the case of a mere charge or lien reserved upon land to secure the payment of money at some future time without interest. In the first instance, each party is directly interested in having the payment of the principal at the time fixed in the contract, and in preventing the payment by way of anticipation; while in the second instance, the party to whom the money is coming has a direct interest in receiving the money as long before the time fixed for the payment as possible. If Thomas Thompson had succeeded in getting Nancy J. Lyon to receive the money when he offered to pay it, it would have been to her benefit, and to his prejudice, and in violation of no contract between her and himself. If the debt had been an interest bearing one, there would have been some excuse for her refusal to receive the money until the year was out; but, as the amount did not bear interest, she could in no way have been prejudiced in receiving the money, and there could be no reason for delaying the tender, if. said Thomas was able and willing to make it, until the expiration of the year. In the case of M’Hard v. Whitcroft, 3 Har. & McH. 85, the case considered was an action of debt upon a bond dated the 24th day of September, 1778, and conditioned for the payment of four hundred and forty two pounds and ten shillings at or upon the 1st of September, 1788, with interest The defendant pleaded payment before the issuing of the writ, to wit, on the first of September, 1788. General replications of non payment and issue joined. At October term, 1.790, the jury found by their special verdict that the defendant, in discharge of' so much of the bond on which the suit was brought, did tender bills of credit, which was a legal tender by law to the plaintiff, to the amount of one thousand, one hundred and seventy five and two-tliirds dollars, which tender was made on the 7th of March, 1781; and, if the said tender was good, then they found that there was thirteen pounds and one shilling specie duty on said bond; but, if the tender in discharge of said bond could not be made before the 1st of September, 1788, then they found due on the said bond eighty eight pounds and ten shillings specie with interest from the date of said bond. The general court gave judgment on the said special verdict for the plaintiff for the penalty and costs, to be released on the payment of eighty eight pounds and ten shillings current money, with interest from the 24th day of September, 1778, and costs. The defendant appealed to the court of appeals, which court, after hearing arguments, reversed the judgment of the general court. Now, in that case, the bond bore interest, and yet the court of appeals held the tender made before the maturity of the bond to be good; and, if that .decision be good law, how much more so ought the tender to be held good where the claim bears no interest, as in the case we are considering. If the reason for the law be that it would be an unwarranted infringement of the contract between the parties who had made the contract, for the purpose of enjoying the interest without the trouble of reinvestment, to allow a tender to be good before obligation became due, how much more so should a tender be held good which is made before the claim is due, where the claim bears no interest. The legal maxim, “Gessante ratione legis cessat et ipsa lex,” applies.

Said Nancy J. Lyon having absolutely declined to receive the money when offered to her only a day or two before it was due, without assigning any reason for such refusal, and never afterwards having made any demand for the money, my conclusion is, that the plaintiff, having paid the money into court, was entitled to a release of the vendor’s lien, and the court committed no error in so ordering; and the judgment complained of is affirmed, with costs and damages.