Green, Judge,
announced the opinion of the Court:
I have stated the evidence in this case at considerable length. It is contradictory, but, I think, taken altogether we may draw from it the inference, that the following are the substantial facts of the case : On January 1, 1869, James Furbee and wife conveyed to their son Henry B. Furbee a fraction of a lot in Mannington containing only forty square yards covered entirely by a building known as a daguerrean gallery; twenty days afterwards the same grantors conveyed to Henry B. Furbee this forty square yards, on which stood this building, and also another parcel of land in the town of Mannington on the Baltimore and Ohio railroad, which we will for the sake of perspicuity call the railroad-lot. But four days before the making of this last deed, that is, on January 16, 1869, this gallery-ground of forty square yards was conveyed to the plaintiff, Koon, by said H. B. Furbee and wife. So that on April 1, 1869, Henry B. Furbee owned in Mannington the railroad-lot and no other property. The forty square yards, on which stood the photograph-gallery, he had sold and conveyed to the plaintiff for $200.00 on January 16, 1869. In the assessment of lands for 1869, which is to be regarded as made of April 1, 1869, (see Cpde of West Virginia, ch. 29, § 39, p. 161), there was assessed in the name of Henry B. Furbee a lot in Mannington. When this assessment was made, he owned no land in Mannington except what we have designated as the railroad-lot. He had then left Mannington and the State, and the defendant, Snod-grass, claims that he had abandoned this lot. But this does not appear to be the fact. The deed from his father to him was not recorded, but it had been acknowledged and delivered; and go far from bis abandoning this lot we find him after-[330]*330wards, on January 6,1870, selling this railroad-lot to William Hall for $328.00 cash. It is true, the deed to Hall was made by his father, but it recites, that the purchase-money was paid to Henry B. Furbee. The tax on this lot in Mannington assessed to Henry B. Furbee in 1869, was forty cents, and neither it nor the tax for 1870 was paid, and this lot in Mannington charged to Henry B. Furbee was returned delinquent for the non-payment of these taxes. It was then on December 1, 1871, sold by the sheriff for these delinquent taxes and bought by the defendant, Snodgrass, for either sixty-eight or seventy-one cents; the sheriffs receipt says sixty-eight cents, the abstract taken from the clerk’s office filed with the bill says seventy-one cents. Lot No. 40 in Man-nington was charged in 1869 to James Furbee, and the taxes on it were paid by him ; and this lot so taxed included the 40 square yards, on which this photograph-gallery stood.
Before the end of the year, in which the party has a right to redeem his land (see Code of W. Va. p. 190 ch. 31 § 15) probably in the summer of 1872, the defendant, Snodgrass, told one Beatty, that the lot, which he had bought, and which was sold in the name of Henry B. Furbee, was this photo-gragh-gallery lot; and this he did confidentially, asking him to say nothing about it. But Beatty at once told Koon, the plaintiff, that Snodgrass claimed he had bought his gallery-lot for taxes, and he thereupon called on Snodgrass and offered to redeem the same by paying him the amount, which he had paid, and the interest at 12 per cent, per annum thereon. No specific sum, which he would pay, was probably mentioned, and no money was produced. Snodgrass, as appears by his answers, seems to have thought, that under the 15th and 16th sections of ch. 31 of the Code page 190 he was not bound to receive it, and he refused to receive it, telling him at the same time, that the lot he had bought charged in the name of Henry B. Furbee was not the gallery-lot but some other lot, in which the plaintiff had no interest. The plaintiff then went to the recorder and offered to redeem the land. This was probably in November, 1872. The recorder told him to go again to Snodgrass and tender him the exact amount, for which it was •sold, with the 12 per cent interest upon it, and if he refused to receive it, he, the recorder, would then receive it; and he told him the exact amount necessary to redeem it, This ex[331]*331act amount the plaintiff formally tendered to Snodgrass, but not till after the expiration of a year from the time oí tbe sale; and he refused to receive it as too late; and for this same reason the recorder also refused to receive it of him.
The question involved in this case is, whether the defendant, Snodgrass, was entitled under these circumstances to a deed for this forty square yards, on which this photograph-gallery stood. Assuming for the present for arguments sake, that the land bought by the defendant at the sheriff’s sale was forty square yards, on which the photograph-gallery stood, and that it was properly sold, as listed, in the name of Henry B. Furbee, and had been properly returned as delinquent for the non-payment of taxes, and the sale was in all respects regular, would the defendant, Snodgrass, have been in this case entitled to a deed therefor ? His claim, that though there had been tendered to him by the plaintiff the correct amount for the redemption of this land within one year from the sale, still he. would be entitled to his deed, unless the plaintiff also paid it to the recorder within the year, is not sustained by a true interpretation of the 15th and 16th sections of ch. 31 of the Code of W. Va., p. 190, on which he relies. •
The 15th section provides, that the plaintiff in this case might redeem the same within the year by paying á certain sum to the purchaser. It is therefore obvious, that he could not be defeated in this his right of redemption by the plaintiff’s refusal to receive the money when tendered to him. The 16th section in providing, that if the purchaser refuses to receive the money, the' owner of the land may pay it to the recorder within one year, does not render such payment to the recorder essential to the perfection of the plaintiff’s right to the land, but was intended simply to prevent the recorder from making a deed to such purchaser, which he might otherwise have done in ignorance, that such a tender had been made to him, and to impose on the purchaser, after the recorder had received the money from the purchaser, the necessity of applying to the court to settle the rights of the party claiming the right to redeem and of the purchaser, before any deed should be ¿nade.
In the present case the recorder states, that the money to redeem this land was tendered to him by the plaintiff within the year; and it would be strange indeed, if his refusal to re[332]*332ceive it could deprive the plaintiff of his land, if in fact he had previously tendered the money for the redemption to the defendant, Snodgrass. Was such tender to the defendant, Snod-grass, in this case necessary ? The evidence though contradictory, shows, I think, that the plaintiff sought Snodgrass within less than a year from the time of the sale for the express purpose of redeeming this land, and offered to pay him the full amount .necessary to redeem it, but he was told by Snodgrass, • that he did not claim this land, and that the lot he had bought was a different lot, in which the plaintiff had no interest, and he refused therefore to receive the money.
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Green, Judge,
announced the opinion of the Court:
I have stated the evidence in this case at considerable length. It is contradictory, but, I think, taken altogether we may draw from it the inference, that the following are the substantial facts of the case : On January 1, 1869, James Furbee and wife conveyed to their son Henry B. Furbee a fraction of a lot in Mannington containing only forty square yards covered entirely by a building known as a daguerrean gallery; twenty days afterwards the same grantors conveyed to Henry B. Furbee this forty square yards, on which stood this building, and also another parcel of land in the town of Mannington on the Baltimore and Ohio railroad, which we will for the sake of perspicuity call the railroad-lot. But four days before the making of this last deed, that is, on January 16, 1869, this gallery-ground of forty square yards was conveyed to the plaintiff, Koon, by said H. B. Furbee and wife. So that on April 1, 1869, Henry B. Furbee owned in Mannington the railroad-lot and no other property. The forty square yards, on which stood the photograph-gallery, he had sold and conveyed to the plaintiff for $200.00 on January 16, 1869. In the assessment of lands for 1869, which is to be regarded as made of April 1, 1869, (see Cpde of West Virginia, ch. 29, § 39, p. 161), there was assessed in the name of Henry B. Furbee a lot in Mannington. When this assessment was made, he owned no land in Mannington except what we have designated as the railroad-lot. He had then left Mannington and the State, and the defendant, Snod-grass, claims that he had abandoned this lot. But this does not appear to be the fact. The deed from his father to him was not recorded, but it had been acknowledged and delivered; and go far from bis abandoning this lot we find him after-[330]*330wards, on January 6,1870, selling this railroad-lot to William Hall for $328.00 cash. It is true, the deed to Hall was made by his father, but it recites, that the purchase-money was paid to Henry B. Furbee. The tax on this lot in Mannington assessed to Henry B. Furbee in 1869, was forty cents, and neither it nor the tax for 1870 was paid, and this lot in Mannington charged to Henry B. Furbee was returned delinquent for the non-payment of these taxes. It was then on December 1, 1871, sold by the sheriff for these delinquent taxes and bought by the defendant, Snodgrass, for either sixty-eight or seventy-one cents; the sheriffs receipt says sixty-eight cents, the abstract taken from the clerk’s office filed with the bill says seventy-one cents. Lot No. 40 in Man-nington was charged in 1869 to James Furbee, and the taxes on it were paid by him ; and this lot so taxed included the 40 square yards, on which this photograph-gallery stood.
Before the end of the year, in which the party has a right to redeem his land (see Code of W. Va. p. 190 ch. 31 § 15) probably in the summer of 1872, the defendant, Snodgrass, told one Beatty, that the lot, which he had bought, and which was sold in the name of Henry B. Furbee, was this photo-gragh-gallery lot; and this he did confidentially, asking him to say nothing about it. But Beatty at once told Koon, the plaintiff, that Snodgrass claimed he had bought his gallery-lot for taxes, and he thereupon called on Snodgrass and offered to redeem the same by paying him the amount, which he had paid, and the interest at 12 per cent, per annum thereon. No specific sum, which he would pay, was probably mentioned, and no money was produced. Snodgrass, as appears by his answers, seems to have thought, that under the 15th and 16th sections of ch. 31 of the Code page 190 he was not bound to receive it, and he refused to receive it, telling him at the same time, that the lot he had bought charged in the name of Henry B. Furbee was not the gallery-lot but some other lot, in which the plaintiff had no interest. The plaintiff then went to the recorder and offered to redeem the land. This was probably in November, 1872. The recorder told him to go again to Snodgrass and tender him the exact amount, for which it was •sold, with the 12 per cent interest upon it, and if he refused to receive it, he, the recorder, would then receive it; and he told him the exact amount necessary to redeem it, This ex[331]*331act amount the plaintiff formally tendered to Snodgrass, but not till after the expiration of a year from the time oí tbe sale; and he refused to receive it as too late; and for this same reason the recorder also refused to receive it of him.
The question involved in this case is, whether the defendant, Snodgrass, was entitled under these circumstances to a deed for this forty square yards, on which this photograph-gallery stood. Assuming for the present for arguments sake, that the land bought by the defendant at the sheriff’s sale was forty square yards, on which the photograph-gallery stood, and that it was properly sold, as listed, in the name of Henry B. Furbee, and had been properly returned as delinquent for the non-payment of taxes, and the sale was in all respects regular, would the defendant, Snodgrass, have been in this case entitled to a deed therefor ? His claim, that though there had been tendered to him by the plaintiff the correct amount for the redemption of this land within one year from the sale, still he. would be entitled to his deed, unless the plaintiff also paid it to the recorder within the year, is not sustained by a true interpretation of the 15th and 16th sections of ch. 31 of the Code of W. Va., p. 190, on which he relies. •
The 15th section provides, that the plaintiff in this case might redeem the same within the year by paying á certain sum to the purchaser. It is therefore obvious, that he could not be defeated in this his right of redemption by the plaintiff’s refusal to receive the money when tendered to him. The 16th section in providing, that if the purchaser refuses to receive the money, the' owner of the land may pay it to the recorder within one year, does not render such payment to the recorder essential to the perfection of the plaintiff’s right to the land, but was intended simply to prevent the recorder from making a deed to such purchaser, which he might otherwise have done in ignorance, that such a tender had been made to him, and to impose on the purchaser, after the recorder had received the money from the purchaser, the necessity of applying to the court to settle the rights of the party claiming the right to redeem and of the purchaser, before any deed should be ¿nade.
In the present case the recorder states, that the money to redeem this land was tendered to him by the plaintiff within the year; and it would be strange indeed, if his refusal to re[332]*332ceive it could deprive the plaintiff of his land, if in fact he had previously tendered the money for the redemption to the defendant, Snodgrass. Was such tender to the defendant, Snod-grass, in this case necessary ? The evidence though contradictory, shows, I think, that the plaintiff sought Snodgrass within less than a year from the time of the sale for the express purpose of redeeming this land, and offered to pay him the full amount .necessary to redeem it, but he was told by Snodgrass, • that he did not claim this land, and that the lot he had bought was a different lot, in which the plaintiff had no interest, and he refused therefore to receive the money. The evidence, I think, satisfactorily shows, that this statement, that he, Snod-grass did not claim this land, was false, as he had prior thereto expressly stated to another party, that he did claim this land as the land he had bought, and it is equally obvious, that this false statement was made with the fraudulent purpose on the part of Snodgrass to lull the plaintiff into security, so as to prevent his taking what he, Snodgrass, thought were the necessary steps to be taken by him to redeem this land within the year.
Now the law never allows a party to defeat another’s right by fraud. In Southworth v. Smith, 7 Cush. 391, A., the purchaser óf real estate at a sale, absented himself from home with the fraudulent purpose of preventing a debtor or his as-signee from redeeming the land within the time required by. the law; and the court decided, that this fraudulent conduct of the purchaser would exclude him from afterwards claiming, ■that a tender was not made to him within the time the law required. This case is cited approvingly by Judge Haymond in delivering the opinion of this Court in Gas Company v. Wheeling, 8 W. Va. 363.
The fraudulent misrepresentation in the case before us, made with the purpose of misleading the plaintiff and preventing him from formally redeeming the land, must have the same effect, and must preclude the defendant, Snodgrass, from now objecting, that a legal tender of the money necessary to redeem this land was not made to him within a year. In the case before us, however, what was the equivalent of a legal ■tender seems to have been made by the plaintiff to the defendant, Snodgrass, within a year. It is true, that the legal incidents of a valid tender are the actual production and proffer [333]*333of the precise sum due; but these may be dispensed with expressly or impliedly by the party, to whom the money is to be paid. There is for instance no necessity for the actual production of the money, when the refusal to receive it is based not on its non-production, but on an entirely distinct ground in no wise connected with the non-production, and such as by the strongest implication waives the necessity of such production, as in this case, where the party declared, that he would not receive money, because the plaintiff did not owe it, as he was mistaken in supposing, that any claim was set up to his land. This declining for such a reason would equally waive the necessity of the exact amount due being tendered. Thus in Bevans v. Rees, 5 Me. & W. 306, Lord Abinger says: “I am prepared to say, that if the creditor knows the amount due him, and if offered a larger sum and without any objection on the ground of want of change makes quite a collateral objection, that will be a good tender.” Here the offer to pay was of the amount paid by Snodgrass for the land and twelve per cent, per annum interest thereon. No calculation was made; and the precise sum the plaintiff offered to pay was probably not stated; but the objection was not to the indefiniteness of the amount offered, but was entirely collateral thereto, and therefore such indefiniteness could not make this tender invalid. For a like reason the non-production of the money offered ought not to make this tender invalid. See Judge Rivers’s opinion in Lohman v. Groch et als., 19 Gratt. 344, 345 and Southworth v. Smith, 7 Cush. (Mass.) 391.
But as there is contradictory evidence on the question, whether the plaintiff was prevented from redeeming this land within a year by the fraudulent conduct of Snodgrass, and also some uncertainty as to the actual facts, which accompanied the tender made by the plaintiff to Snodgrass within the year, I prefer to base the conclusion, which I have reached in this ease, on another ground, as in reaching such conclusion I have to rely on only the written evidence in the case and undisputed facts. To my mind it satisfactorily appears from the record, that the defendant Snodgrass, did not buy at the sheriff’s sale for delinquent taxes the forty square yards of land, on which stands the gallery described by the plaintiff, and is of course entitled to no deed therefor. On April 1, 1869, this lot in Mannington, whatever it be, which the defendant Snod-[334]*334grass bought, was assessed in the name of Henry B. Furbee. At that time, so far as the record of the county disclosed, the legal title to this forty square yards, on which the gallery stood, was in James Furbee, his father; and it would have been properly assessed in his name; and one of his sons testifies, it was assessed in his name, it being a portion of lot No. 40, which was assessed in his name, and the taxes for that year were paid by him. If this be so, of course it could not have been legally sold, as it was; but if was not so assessed fn the name of James Furbee, as before the 1st of April, 1869, he had conveyed it to Henry B. Furbee, and he had conveyed it to the plaintiff, Koon, it might have been assessed in the name of Koon. As he had not put his deed of record, it might have been assessed in the name of Henry Furbee, his grantor. But the assessment in the name of H. B. Furbee would have been, while legal, very singular and one, which the assessor could have made only in ignorance óf the real facts; for on April 1, 1869, Henry B. Furbee had not the title to this land, so far as the records disclosed, nor did he in point of fact at that time have any title to this land either legal'or equitable. He had no interest in it of any sort; and it is therefore highly improbable that it would be assessed in his name. Nor is there any thing in the assessment, which was made in his name, to indicate, that this forty square yards of ground was so assessed, on the contrary the entry itself is almost conclusive, that it was not assessed in his name. What is assessed in his name is a lot in Manning-ton. It would be a strange misnomer if the assessor had described forty square yards, on every foot of which a building stood, as a lot in Mannington, more especially as the law required the assessor, when he assessed land, on which there was a building, to state this fact and to assess the building and land separately, where the building exceeded $100.00 in value. See Code of W. Va. ch. 29 § 27 p. 158. While the record does not disclose the value of this building, yet as the plaintiff paid, as the deed from Henry B. Furbee to him shows, *$200.00 for this building and the ground it stood on, it was probably worth more than $100.00. But if it were otherwise, the natural designation of this land would not have been a lot in Mannington, but the ground, on which stood a photograph-gallery in Mannington or something equivalent. The [335]*335inference is therefore very strong, that by a lot in Manning-ton the assessor did not mean this forty yards of ground covered by a building.
This inference is greatly strengthened by the fact, that at the date of this assessment of a lot in Mannington in the name of Henry B. Furbee,' that is on April 1, 1869, he was the legal and equitable owner of another parcel of land in Mannington, which, so far as the record shows, was not built upon. This parcel of land lay on the Baltimore and Ohio railroad, and could certainly have been far more properly described as a lot in Mannington than this forty square yards covered by a building; and when we have in mind that Henry B. Furbee was the legal and equitable owner of this ground, while he had neither a legal nor equitable title to this forty square yards, there can be no doubt, that it is greatly more probable, that by this lot in Mannington was meant this railroad-lot, than the ground on which stood the gallery. It may not have been the purpose of the assessor by a lot in Mannington to designate this land in Mannington on the railroad; but whatever he did mean, it seems to me clear, that he did not mean this forty yards of ground on which this photograph-gallery stood. The language he has used in making this assessment, taken in connection with the surrounding facts precludes, it seems to me, the idea, that this forty yards of ground was meant. If it was not, then of course the defendant, Snodgrass, has no right by virtue of his purchase of this lot in Mannington to a deed for this forty square yards of land; and the injunction, which the court granted to prevent him from procuring such deed, ought on the hearing to have been perpetuated.
The decree of the circuit court of Marion county of November 8, 1877, must be reversed and annulled; and the appellant must recover of the appellee, Ezekiel C. Snodgrass, his costs in this court expended ; and this court proceeding to render such decree as the circuit court ought to have rendered, as the plaintiff is entitled to the relief he sought, must perpetuate the injunction heretofore awarded in this cause, and adjudge and decree, that the defendant, Ezekiel C. Snodgrass, do pay to the plaintiff his costs expended in said circuit court.
The Other Judges Concurred.
Decree Reversed,