
    Cotter v. O’Connell.
    1.' Tender: judicial sale. Where a party paid to the clerk a certain amount as a tender to be accepted, if at all, in full discharge of a judgment, with»interest and costs, the acceptance of it by the attorney of the judgment creditor will bind the latter to account to the plaintiff for the proceeds of a sheriff’s sale made to satisfy the judgment.
    
      Appeal from Clinton Circuit Cowrt.
    Saturday, June 8.
    On the 14th day of April, 1874, William O’Connell recovered a judgment by default against Garrett Cotter for one hundred and sixty-one dollars and three cents, aiid twenty-one dollars and ninety-five cents costs, and fifty dollars attorney’s fee, together with a foreclosure of mortgage, and an order for a special execution. The petition upon which this judgment was rendered did not pray a foreclosure of the mortgage. On the 2d day of June, 1874, the mortgaged property was sold to Henry Gerhard, for the sum of one hundred and ninety dollars, and a certificate of purchase was issued ‘to him. On the 2d day of the next term, September 8,1874, Cotter appeared and moved the court to vacate the decree of foreclosure of the mortgage, and the proceedings thereunder, for the reason that the suit had been prosecuted at law, and .no decree of foreclosure had been asked. On the 12th day of April, 1875, Cotter moved to set aside the sale to said Ger-hard, and tendered and paid into court the sum of one hundred and eighty-two dollars and seventy-two cents, in full of the said judgment, interest and costs. Pending a decision upon said motion, Cotter filed his petition asking that the sale be set aside, and that the sheriff be enjoined from executing a deed to Gerhard. A preliminary injunction issued ■as prayed. O’Connell appeared and asked leave to amend his petition in the suit in which the foreclosure was obtained. At the September Term, 1875, the court rendered a decision upon the respective motions, refusing to permit O’Connell to amend his petition, setting aside the decree of foreclosure, and vacating the sale. From this ruling O’Connell appealed to this court. On the 20th day of September, 1876, this court reversed the ruling of the Circuit Court, and held that the sale was valid, and that the court should have permitted the amendment of the petition in the foreclosure proceeding. See O'Connell v. Cotter, 44 Iowa, 48. Pending this appeal, on the 17th day of April, 1876, John F. McGuire, attorney of O’Connell, accepted the money deposited with the clerk ■as a tender, and executed therefor a receipt, as follows: “Received fromW. B. Leffingwell, clerk, the sum of one hundred and eighty-two dollars and seventy-two cents, the same being tendered by Isaac Baldwin on the 12th day of April, A. D. 1875, in the above case, for Garrett Cotter, and being tendered in full of principal and interest on note sued on, to April 12, 1875, in full payment of all costs prior to April 14, 1874.” On the 28th day of September, 1876, a procedendo issued from this court, and on the 14th day of October, 1877, the sheriff executed to Gerhard a deed, pursuant to his purchase. In the meantime the action in which the injunction was prayed had been continued. On the 18th of January,' 1877, Cotter filed a substituted and amended petition, setting forth a history of the cause, and praying that the sale to Gerhard be cancelled, and for general relief. The defendant answered, denying that the tender of one hundred and eighty-two dollars and seventy-two cents was received in full satisfaction of the amount due, alleging that one hundred and fifteen dollars and sixty-five cents had been applied in satisfying costs in the Supreme Court and balance of tbe principal judgment, and tendering to plaintiff the balance, seventy dollars and ninety-seven cents. Tbe court refused to set a'side tbe sale to Gerhard, and rendered judgment against O’Connell for the amount for which tbe property was sold, with interest and costs. Tbe defendant appeals.
    
      John I. Mullany, for appellant.
    
      Isaac Baldwin, for appellee.
   Day, J.

I. Appellant insists that plaintiff has mistaken bis remedy. It is urged that be should have set up tbe fact of tbe acceptance of tbe tender under tbe provisions of sections 3212, 3213 of tbe Code, and moved thereon for a dismissal of tbe appeal in tbe Supreme Court. We are, however, of tbe opinion that, while tbe plaintiff might have pursued that course, he is not confined to that remedy.

II. Appellant mainly relies upon tbe fact that tbe tender was accepted, not in satisfaction of tbe entire demand, but merely in discharge of what remained after creeliting the judgment with the amount of tbe sale. This position of appellant is not tenable. The amount accepted was very largely in excess of tbe unsatisfied portion of tbe judgment, and must have been known to tbe attorney of O’Connell to be so. It was within a few cents of tbe amount of tbe judgment, interest, and costs, less the attorney’s fee. It was tendered and was in custody of tbe clerk in full satisfaction of the amount of tbe claim. Tbe clerk bad no authority to pay it out except in full satisfaction of tbe demand, and tbe evidence shows that be refused to do so. McGuire, tbe attorney of O’Connell, bad no right to tbe tender except as in full discharge of tbe claim, and when be accepted it tbe claim was, in law, discharged. It is claimed that it is improbable that McGuire, as attorney for O’Connell, would accept one hundred and eighty-two dollars and seventy-two cents in full settlement of tbe case, when be bad already made one hundred and ninety dollars, on the judgment through the sheriff’s sale. But that sale had been set aside, ,a¿id, to say the least, the validity of it was in great doubt. The defendant, having accepted satisfaction of the-claim, was properly held to account for the proceeds of the sheriff’s sale.

Affirmed.  