Oakland Bank of Savings v. Applegarth

Ross, J. Certain costs of suits, counsel fees, and taxes are matters in dispute on this appeal. The action was brought to foreclose a certain mortgage given by defendant to secure a nromissory note executed by him to the plaintiff. The note [87]and mortgage being overdue were sent by plaintiff to an attorney at Merced for purposes of foreclosure, and the evidence indicates a sort of race between the attorney and the derelict debtor as to which of two events should first take place, a tender of the money by the debtor, or the institution of the suit by the attorney. The court below found that the tender was first made, and we are not prepared to say from the record that its conclusion in that behalf was incorrect. The court further found that the amount tendered by the defendant was $6,344.55, whereas the amount that was really then due from him was $6,383.29, so that the full amount due was not tendered. But the court found also “that plaintiff did not make or specify any objection to said sum of $6,344.55, or to the amount thereof, nor did plaintiff specify any other as the amount which it required, but then and there refused, and ever since has refused, to accept from defendant said sum, or any part thereof; that defendant has at all times been ready and willing to pay to plaintiff said sum of $6,344.55, and did at the time of filing his answer herein bring into court and deposit therein, for the plaintiff, the said sum of $6,344.55, so tendered to plaintiff as aforesaid.”

The court below further found “that prior to said 1st day of September, 1882 (the date of the tender), the value of said mortgage was assessed to plaintiff in the county of Merced, for State and county taxes for the fiscal year ending June 30, 1882, but said 1st day of September, 1882, was before the tax levy of said fiscal year; that the amount of such levy, in respect to said mortgage assessed to plaintiff as aforesaid, computed according to the tax levy for the preceding year, was the sum of $113.60, and that defendant was, on said 1st day of September, 1882, entitled to retain and deduct from the amount due on the face of said note and mortgage the said sum of $113.60, upon satisfying the mortgage. The court therefore finds that the sum of $6,344.55 tendered by defendant to plaintiff on the 1st day of September, 1881, was more than plaintiff was entitled to recover upon said note and mortgage on said day.”

This view of the court below was based upon that provision of section 3627 of the Political Code, wherein it is declared that the taxes therein referred to “ shall be a lien upon the property and security, and may be paid by either party to such security;