Strickland v. Clements

104 S.W. 175, 83 Ark. 484, 1907 Ark. LEXIS 122

• Court: Supreme Court of Arkansas
• Decided: July 15, 1907
• Status: Published

Opinion

McCulloch, J.

This is a replevin suit 'to recover possession of á m-ule and some cattle. The plaintiff claims title under a chattel mortgage executed by the defendant. The issues involved in the trial below were as to the amount due on the mortgage debt and whether .or not the defendant had made a tender of the amount. The matters were submitted to the jury upon conflicting evidence, and were determined in favor of the de-' fendant.

The defendant testified that he had, before the commencement of 'the .action, made a tender of $64 to the plaintiff, which was the -amount he claimed to be due with interest, and his attorney also made the tender in .open court.

The tender of the debt secured by the mortgage did not release the lien -of the mortgage, but it prevented the mortgagee from foreclosing .as long .as the tender was alive. Hamlett v. Tallman, 30 Ark. 505; Bloom v. McGehee, 38 Ark. 329. Appellant complains of the tender being held to be good by the court without the money being paid into the registry of the court. The defendant offered in court to pay the money, but the plaintiff refused to .accept it, and he cannot complain now because the money wias not paid over. No order on the defendant to pay the money into the court w-as made, and none was asjced by the plaintiff. He contended that more was due, and refused to accept the amount offered. The judgment does not release the mortgage lien, nor prevent the plaintiff from renewing his suit to recover possession of the property for the purpose of foreclosing the mortgage, if the defendant should fail to keep his ‘tender alive.

Finding no error, the judgment is affirmed.