Wolverton's Appeal

Opinion by

Mr. Justice Sterrett :

It is unnecessary to discuss the questions involved in the first, and second specifications. For reasons given at length by the-learned master and court below, the decree “that the deed mentioned in the pleadings from Abraham Iflase to George Longenberger, John Fisher, and George Miller, for the tract of land therein described, was but a mortgage to secure the payment of a debt of Charles F. Mann to the amount of $6,045.93, and the-defendant, S. P. Wolverton, holds the title of two undivided one-third parts of the land in said deed described, subject to the-right of redemption of the same by the plaintiff, on payment of' two thirds of the mortgage money to said Wolverton, wdth interest, if there shall be found so much due,” and the reference of’ the case to a master to take an account, etc., were clearly right. The facts found by the master and approved by the court would, not have warranted any other conclusion.

The only question that requires any notice arises upon the account stated by the master and corrected by the court, vis.,. whether the tender of $6,000, made February 13, 1866, had the-effect of suspending interest on. that much of the debt secured by the defeasible deed. According to the finding of the master, the debt at that time was $7,600.08, or $1,600.08 more than the sum tendered. Aside from all other considerations, we think the tender was ineffective for the purpose of stopping interest, because defendant below was not bound to accept anything less than the whole debt due him at that time. While there is some difference of opinion as to what is necessary to-constitute a valid tender, the weight of authority is, that an offer to pay a portion of an entire debt will not have the effect •of suspending interest on any part thereof; and there is no good reason why it should. A creditor who has an entire claim .against his debtor, is not bound to receive anything less than the •entire amount due him. In Benjamin on Sales, 4th Am. ed. § 1069, the learned author says: “It is now settled that there can be no valid tender of a part of an entire debt though a debtor :may make a valid tender of one of several distinct debts, if he •specify the debt on account of which he makes the tender; and if he makes a tender without specifying which of several debts 'is the subject of the tender, and the amount tendered be insufficient to cover all, it will not be good for any.” To the same ■effect is 2 Chit-ty on Contracts, 1188.

The interest, of which appellant was thus deprived by the de•cree, amounts to $4,541.36, or $1,506.67 more than the sum he was ordered to pay to appellee. Instead, therefore, of paying her anything, he is entitled to receive the last-mentioned sum ■with interest from March 17, 1884; and that should be paid within a reasonable time, say ninety days from this date, and before appellant shall be required to execute and deliver the deed mentioned in the second sentence of the decree. The descree must be modified by striking out the second sentence and making the necessary substitution in lieu thereof. It is unnecessary to notice the remaining specifications. The very able argument of appellant’s counsel has failed to convince us that there is any error in the decree except in the single matter referred to above.

It is, therefore, adjudged and decreed that the decree be reversed and modified by striking out the second sentence thereof, wherein appellant is ordered to pay appellee the sum of $3,396, with interest from March 17, 1884, and convey to her the tract •of land described in the bill, etc., and, in lieu thereof inserting the following, viz., and it is further adjudged and decreed that there is due to appellant, Simon P. Wolverton, $1,506.67, part •of the debt secured by the deed mentioned in the bill, with interest from March 17, 1884, and that upon payment to him •of said sum with interest as aforesaid, within ninety days from 'the date hereof, he, the said Simon P. Wolverton, shall forthwith convey to the appellee, Mary McAlamey, in fee the tract ■of land, in the warrantee name of Catharine Longenberger, •described in the bill, clear of all encumbrances created by him.

And it is further adjudged and decreed that, with the foregoing modification and alteration, the decree of the court below,, thus modified, be affirmed, and that the costs of this appeal b& paid by the appellee.