McCalley v. Otey

103 Ala. 469

• Court: Supreme Court of Alabama
• Decided: November 15, 1893
• Status: Published

Opinion

COLEMAN, J.

The facts of the case fully appear in the opinion and report of the case in 99 Ala. 584. After the remandment of the cause, the chancery court permitted the introduction of evidence upon the question of tender, and upon the submission of the cause upon this question ascertained that the tender had not been kept good, and decreed that the amount paid into court on the 21st of. March, 1890, was not the amount due respondent. The court allowed interest on the debt to the 21st of March, 1890, the date that the money was paid into court, and refused to allow interest to the date of the decree. In this the court erred. The amount paid into court was not the full amount due, and. the respondent was .under no legal obligation to accept anything less than his entire debt. The fact that the complainant must lose the interest upon the money during the time it was in court, cannot be attributed to any fault of the respondent. To make a plea of tender available to stop the accumulation of interest, it is indispensable that" the entire amount due be tendered. The court should have, allowed interest on the principal ($1,200), to the 23d day of September, 1893,. the date of the rendition of the decree.

The motion to dismiss the appeal, upon the ground that the appellant had accepted payment of the amount of the decree of the court, must be overruled. This case is clearly within the principle declared in the case of Phillips v. Towles, 73 Ala. 406 ; 1 Brick. Dig., 104, § 308. The principal ($1,200), was admitted in complainant’s bill to be due, and it was clearly shown that the amount tendered had not been kept good. Under no circumstances could the appellant be entitled to less than that decreed him. In fact, we hold that the error of the court consists in not decreeing to him the full amount of his claim. The case of Hannon v. Todd, 95 Ala. 328, has no application, as will be seen by an examination of the case of Phillips v. Towles, 73 Ala., supra, and cases cited.

A decree will be here rendered in favor of appellant for the further sum of three hundred and forty-four dollars to be paid, with the interest which may accrue, to him as a condition precedent to the cancellation of the mortgage and a redemption of the land; and' unless paid within sixty days from the rendition of this decree, the appellant, upon his motion in the court in which the cause is pending, may have the injunction-granted in this cause, and made perpetual by the chancery court, dissolved, so that the mortgagee, appellant, can proceed to foreclose his mortgage or collect the decree of this court in his favor by execution, or as he may be advised.

Corrected and rendered in part and remanded.

Brickell, C. J., not sitting.