
    Shobe’s Executors v. Carr and Wife.
    
    Argued Friday, November 15, 1811.
    i. Legacies—Interest Thereon.—Interest allowed on a legacy, and (no certain time for payment being appointed,) from the end of one year from the testator’s death; and to a legatee in remainder, from the end of the year in which the tenant for life died.
    3. Devises—Land Charged-with Legacy.—If a testator devise, to two of his sons, certain lands, rated at a certain sum,- allowing them to pay his other children equal shares of that sum. by instal-ments; such devisees, and those claiming under them, are personally responsible, (in proportion to their respective estates,) for the payment of such instalments, with lawful interest from the times when payable; and (in aid of such responsibility,) the lands so devised are liable.
    3. Tender and Refusal.—if a tender be made of a less sum than is justly due, a refusal to receive it is no bar to the subsequent recovery of interest, on the sum so tendered, from the time of the tender.
    4. Leasehold—Parol Gift of Effect—Case at Bar.—A testator having put his daughter’s husband into possession of a leasehold tract of land, and delivered him the lease; permanent improvements, also, being made by the son-in-law, with the assistance of the family; and parol declarations, by the testator, that he had given him the land, in consideration of his having married his daughter, and to prevent his moving to Kentucky, being proved; it was decided that the son-in-law had an equitable title to the land, for the time the lease had to run, and to a release of the legal title, from the heirs or executors, according as the Interest conveyed by the lease might be greater, or- less. It was also decided, that the legal title to the land, (which was not expressly mentioned in the will,) was not intended to pass by a residuary devise.
    The appellees, Conrad Carr, and Magda-line, his wife, in February, 1794, filed their bill in Chancery, in the County Court of Hardy, against Rudolph Shobe and Leonard Shobe, executors, and the said Rudolph and Leonard Shobe, devisees of Martin Shobe deceased, stating that the said decedent, after having made and duly' published his last will and testament, died, some time in the year 1792, leaving four sons and one daughter, to wit, Martin Shobe, Rudolph Shobe, Leonard Shobe, Jacob Shobe, and Magdaline, the wife of the complainant, Conrad Carr; that the testator, among other things, devised as follows; “§ give and bequeath the one third of all my estate to my beloved wife Elizabeth, during her life, and at her decease, to be equally divided among my ^children ; and as to my lands, I give and bequeath to my son, Rudolph Shobe, the place whereon he now lives; I also give and bequeath to my son, Leonard Shobe, all the rest of the land I own; (except a tract lying on Cheat River, Which I ’give and bequeath to my son, Jacob Shobe; the above-mentioned lands to be rated at sixteen hundred pounds: the possessors of said land, after a division being made, sháll be allowed four years to pay off the other legatees, paying a fourth part each year, till all is paid; and my moveable estate I devise to be added to the price of the lands, and each of my children to receive an equal share of the whole:” by which devises the complainants, Carr and wife, became entitled to one fifth of the aforesaid value of the said land, as also the one fifth of the said moveable estate, to be paid by the defendants, respectively, as devisees and executors: but Martin Shobe, junr., one of the devisees, (though mentioned in the bill,) was not made a defendant.
    The bill further stated, that some years ago, the complainant, Conrad, being about to move to Kentucky, the testator promised him that, if he would not move to Kentucky, with his daughter, he would give him the lease-hold land which he (the said testator) leased of Lord Fairfax, and, accordingly, put the complainant in possession of the same, and delivered him the lease, which he thought was a sufficient transfer of the same: that, since the death of the said testator, Leonard Shobe, one of the defendants, had, by some means, got possession of the said lease, and claimed the said lease-hold land by virtue of the will. The complainants therefore, prayed a decree, to compel the said Leonard to deliver up the said lease to them, with a proper assignment; and for general relief.
    The defendants, Rudolph and Leonard Shobe, filed their answer, admitting the will, the death of the testator in 1792, and the number and names of his children ; but stating- that Jacob Shobe died in the year 1791, shortly after his father; (omitting, however, to mention whether he left any children.) They denied any knowledge of the ^promise, alleged in the bill, with respect to the leasehold land; averring that they did not believe that any such was ever made; or that the complainant ever had any such intention of going to the Western Country; as they never heard of it, although they lived in his immediate neighbourhood. Leonard Shobe insisted, that Carr delivered the lease to him, after the death of the testator, without mentioning any claim whatever to the same; that, about a month thereafter, he, the said Leonard, sent to the said Carr, (for the purpose of paying him the money <due him under the will,) upwards of one hundred pounds, which he refused to receive.
    To this answer the complainants replied generally; and several depositions were taken, proving parol declarations, at sundry times, by the testator, that he had given to Carr the lease-hold land, on which he lived, in consideration of his having married his daughter; and to prevent his moving away; and one of the witnesses said, he declared he had given it to him “‘for ever.” It was also proved by a witness, that the defendant, Leonard Shobe, said, that he had promised the complainant to make him such a title to the said land as he had himself; and that he had heard his father say, that he had given the same land to the complainant. Another witness stated a conversation with the complainant, in which he gave an account of his right to the said land, corresponding, in substance, with the foregoing depositions, but expressing his fears that he should lose the land, ‘‘because he had not a scrape of a pen to show for it. ” It was also in evidence, that the complainant delivered the lease to Leonard Shobe, not because he did not conceive himself justly entitled to the land, but because he thought his title bad in law, without a deed. A tender was also proved, of eighty pounds, by the defendant, Leonard Shobe, to the complainant, which he refused to receive. The County Court decreed, “that the defendants pay unto the complainants the sum of eighty pounds, (being that proportional part of the product of the estate of Martin Shobe, deceased, that, under the will *of the said Martin, the said complainants were entitled to, at the time of the exhibition of the bill,) without costs; and that so much of the said bill as prays for a delivery of the lease, and for a deed of assignment thereof, be dismissed.”
    From that decree, the complainants appealed to the Superior Court of Chancery for the Staunton District.
    The Chancellor, (Brown,) without affirming or reversing the decree, in the first place, appointed commissioners to inquire, and report, “what other lands, and of what estate, was the appellee, Leonard Shobe, entitled to, by the devise to him; and of what value were such lands; what -was the value of the lands devised to Rudolph and Jacob Shobe; what children had the testator living at the time of making his will, and death; what permanent improvements (if any) did the appellant, Carr, make on the lands in controversy, during the testator’s life; and what was the amount of his personal estate?”
    The commissioners reported that Leonard Shobe was in possession of land, (including five acres, of which Carr forcibly held possession,) to the value (at the death of the testator) of 9511. 15s.; that Conrad Carr continued in possession of lands amounting to 2401. ; the permanent improvements thereon being valued at 601.; which improvements were made by him, with the assistance of Leonard Shobe, and the testator’s family; that since the death of the testator, Carr had removed a grist-mill from the premises to an adjoining survey; that a tract of land, belonging to the testator, in Harrison County, was worth 1001.; that they valued the tract in Rudolph Shobe’s possession at 5001., of which he, the said Rudolph, had paid 401. ; that the tracj: devised to Jacob Shobe, (said to lie on Cheat River,) was an entry for which no title had ever been obtained; and that the whole personal estate of the testator, after discharging his debts, amounted to 4221. 10s. 9d., to one third of which his widow was entitled. They stated, moreover, that the widow -was still living; that Jacob Shobe died *some time in January, 1794; that the complainant was his administrator, and retained his personal estate, unsettled.
    The Chancellor, at July Term, 1806, pronounced his opinion, “that the appellants, (Carr and wife,) are entitled to the original lease, under the agreement with the testator, Martin Shobe, and to a release from the appellee, Leonard Shobe of his rights to the lease-hold estate, mentioned in the proceedings, on their paying unto the appellees, all taxes and quit rents which they, or any of them, have paid, in respect of said lease-hold lands, since the testator’s death; and also paying to such of the ap-pellees, as may have paid the same, all such costs and charges of suit, or such proportion thereof, as the appellants are, in justice, bound to refund, for defending the said lease-hold estate against the Greens and others. And that the appellants are now entitled, under the will of said Martin Shobe, to one fifth of two thirds of the real and personal estate of the testator; and, at the death of the widow, to one fifth of her one third of said estate real and personal; (she not having renounced the will, so as to give her an absolute right to one third of the personal estate;) that the appellants are, moreover, entitled to an interest, to be computed after the rate of five per centum per annum, on the money, from the time the several payments ought to have been made, according to the direction contained in the said will; except as to the 801. which they might have received, but refused so to do; (on that sum no interest is to be allowed, after the time it was tendered;) that, to ascertain, as well the amount of the value of the said real and personal estate as the amount of the taxes and quit rents paid, by the appellees, in respect of the said lease-hold lands, since the testator, Martin Shobe’s death, and the amount of costs *and charges paid by the appellees for defending the said lease-hold lands against the Greens and others, and whether any of the estate hath been recovered by any claimant, or otherwise lost or abandoned since the death of the said testator, and also what payments have been made by the appellees to the appellants, on account of their legacy, commissioners ought to be appointed to examine and state an account of the several matters and things above mentioned; but, in taking such estimate, and stating such account, the value fixed on the land by the testator is not to be altered; and if any part of the same has been lost, not its real value, but its comparative value, with the testator’s other lands, is to be ascertained, to show in what proportion each legatee is bound to contribute, under the direction of the will of the testator, Martin. The Chancellor was moreover of opinion, that the appellants were entitled to their costs, expended in prosecuting their suit in the said County Court; and that the decree is erroneous, in not having given the said costs; and also in not deciding the other matters in controversy agreeably to the principles and opinions above expressed.” He therefore reversed the decree, with costs, and remanded the cause for further proceeding; whereupon the defendants appealed to this Court.
    Williams, for the appellants.
    Be the fact as it may, in relation to the gift of the lease-hold land, the appellees cannot claim, both against, and under the will; and therefore, if they claim the legacy left to the female appellee, they cannot recover that land; but must take their fifth part of the value of the lands as fixed by the testator, and one fifth part of the personal estate, subject to the rights of his widow. It may be said, that it does not appear, explicitly, from the will, that the land in question was in contemplation of the testator: but the bill admits it was devised by the will; for it admits that Leonard Shobe is entitled to this land under the devise, *by praying that he may be decreed to make the conveyance. Again; the commissioners make the value of alt the lands in the possession of the testator’s children, (including the tract held by Carr,) to be about 17911. ISs. ; which is not widely different from the sum of 1,6001. estimated by the testator himself as their value.
    2. The proof is not sufficient to entitle the appellees to the land. None of the witnesses were present at conversations between Carr and the testator; for all of them .testify, only, as to what they said when apart from each other. It does not appear that Carr, in the lifetime of the testator, ever claimed a title. If there was a gift, it may have been for the term of the testator’s life only.
    Munford, for the appellees.
    There is no clashing between' Carr’s claim, and the dispositions made by the will; for it does not appear from the will that the testator intended to devise the lease-hold land at all. The difference between the estimates by the commissioners, and by the testator, of the value of all the lands collectively, (say 1911. ISs.) is sufficiently near to the 2401., which they suppose to be the value of that tract, to authorize a conclusion that it may not have been comprehended in his estimate. Besides, in the opinion of a witness, the value of the lease-hold land was far inferior to 2401.
    2. The proof of the contract is certainly strong enough to give the complainant an equitable title to the land. The consideration for the testator’s making the gift, was sufficient; viz. the preventing his son-in-law from removing, with his daughter, to Kentucky, by which he would have lost the comforts of her society in his old age. In Rowton v. Rowton, the majority of the Court was against establishing the title of Joseph Rowton, jun. to* the land; because the evidence was. contradictory, and the agreement between him and his father was not sufficiently proved: but it was agreed by all the judges, that if the agreement had been fully proved, it would have been supported, as founded on adequate consideration *and its being parol only, would not have overthrown it. It is admitted on all hands that Carr was put in possession of the land; and that the lease was delivered to him. He says, it was delivered as the evidence of the title. This is denied on the other side. But if the lease was not given to him by Martin Shobe, for the reason assigned in the bill, what other reason can be assigned? If there was any other, the defendants ought to prove it.
    The incorrectness of Carr’s opinion, at first, that the delivery of the lease was sufficient to give him a title, or his subsequent fears that he should lose the land for want of a deed, can neither of them affect his equitable right, or vary the facts upon which it is founded,  The depositions prove repeated declarations by Martin Shobe, that he had given him the land, without expressing any limitation as to time; and one of the witnesses says, ‘‘for ever.” This testimony, coupled with the other circumstances, particularly, with his having made permanent improvements to the value of 601., (with the assistance, too, of one of the defendants, and the testator’s family,) is conclusive to establish his title, in equity, to a conveyance of such title as-Martin Shobe had by virtue of the lease.
    Williams, in reply.
    The testator’s intention was, evidently, to make an equal, division among his children. No reason can be assigned for his giving his daughter the leasehold land, and, moreover, an equal share of the. rest of the estate. The circumstance, that Carr was in possession, has no weight; for Leonard Shobe and the other sons were also in possession of the lands given them by the will. The witness who mentions the word “forever,” must have been mistaken; because the testator himself had not a fee-simple.
    
      
      For monographic note on Tender, see end of case.
    
    
      
      Legacies—Interest on.—The general rule is that interest on a general legacy is payable from one year from the testator’s death. Anderson v. Piercy, 20 W. Va. 327, 328. citing the principal case. See further, monographic note on “Legacies and Devises” appended to Early v. Early, Gilm. 124.
    
    
      
      Specific Performance—Parol Gift of Land.—It is settled law in Virginia and West Virginia that a verbal donee of land—a child, who under the verbal gift has taken possession of the land and improved it—has a right to demand in a court of equity, a specific performance of the contract by the execution of a deed by the father, thereby consummating his verbal gift. This was held in Shobe v. Carr, 3 Munf. 10, and repeatedly followed and recognized as law by numerous Virginia decisions ever since. Frame v. Frame, 32 W. Va. 476, 9 S. E. Rep. 906, citing Darlington v. M’Coole, 1 Leigh 36; Reed v. Vannorsdale, 2 Leigh 569; Pigg v. Corder, 12 Leigh 69; Cox v. Cox, 26 Gratt. 305.
      
      In Burkholder v. Ludlam, 30 Gratt, 262, the court said that the principles of the decision in Shobe v. Carr had not been denied- or questioned in any subsequent decision that had come to its knowledge; that, while in Darlington v. M’Coole, 1 Leigh 36; Reed v. Vannorsdale, 2 Leigh 569; Pigg v. Corder, 12 Leigh 69, and Cox v. Cox, 26 Gratt. 305, specific execution was denied, there was nothing in these cases in conflict or at all inconsistent with the decision in the principal case, but, on the contrary, the reasoning of the judges in some of these cases would seem rather to confirm the principles of Shobe v. Carr.
      
      See principal case also cited on this subject in Halsey v. Peters, 79 Va. 68; foot-note to Darlington v. M’Coole, 1 Leigh 36.
      See further, foot-note to Burkholder v. Ludlam, 30 Gratt. 256; monographic note on “Specific Performance” appended to Hanna v. Wilson, 3 Gratt. 243.
    
    
      
      Note. Probably, this is a mistake in both bill and answer. See the subsequent statement of the answer.—Note in Original Edition.
    
    
      
      Note. The report of the Commissioners stated that Leonard Shobe had paid the manor rent and taxes, as well as costs of suits brought by the Woods and Greens, to recover the lands now in possession of the legatees; which suits were not finally decided. — Note in Original Edition.
    
    
      
       Thelluson v. Woodford, 13 Vesey, jun. 210.
    
    
      
       1 H. and M. 91.
    
    
      
       See Judge Cabbington’s observations, ins Rowton v. Rowton, 1 H. and M. 108.
    
   ^Thursday, January 16th, 1812.

JUDGE ROANE

pronounced the following opinion of the Court, consisting of Judges Roane, Brooke, and Cabell.

“The court is of opinion, that, under the will of Martin Shobe, in the proceedings mentioned, the appellees were entitled to one fifth part of two thirds of the estate of the said Martin Shobe, (exclusive of his lands,) with interest thereupon from the end of one year from the death of the said testator; as also to one fifth part of the remaining third of the same estate, (which was bequeathed to the wife of the said Martin Shobe,) from and after the time of her death, with interest thereupon, in like manner, from the end of the year in which she shall have died ; that they were also entitled to one fifth part of the value of the testator’s lands devised to his sons Rudolph, Leonard, and Jacob Shobe; rating the same at the price of sixteen hundred pounds; and holding each of the devisees aforesaid, and those claiming under them, chargeable to the appellees, in the proportion that their several dividends, under the will aforesaid, respectively bear to the said sum of sixteen hundred pounds; with interest on the respective quotas, from the expiration of one, two, three, and four years from the testator’s death ; to the payment of which (in aid of the personal responsibility of the said several devisees and those claiming under them) the lands aforesaid ought to be held severally liable.”

“The court is further of opinion, that it appears, from the testimony in this cause, that the appellee, Conrad Carr, was equitably entitled to the leasehold land in the proceedings mentioned; the legal title whereof was not contemplated by the testator in the residuary devise of his lands to his son, Leonard Shobe, but descended upon his four sons, Leonard, Rudolph, Martin, and Jacob Shobe, and the appel-lee, Mrs. Carr, or passed to the executors *of the said testator, according as the interest of that lease might be greater or lesser; (a fact which is not disclosed to the court by the present proceedings;) and that the parties aforesaid, respectively, as the case may be, should be decreed to release the legal title aforesaid to the said appellee, Conrad Carr. On this ground, the court is of opinion that the County Court should have decreed in favour of the appellees, according to the principles above stated, had there been proper and sufficient parties before the court; which this court is of opinion is not the case: both because all the heirs, of the testator are not before the court, so as to be decreed, eventually, to release as aforesaid; and because all the other distributees under the will of the said Martin Shobe, are not also parties; so as to avoid circuity, and make an end of the distribution of the said estate, in, and by one suit or action; and that the said decrees are erroneous, both because of the want of proper parties as aforesaid, and, also, because the principles, now stated to be correct by this court, have not been observed in and by either of the said decrees.”

Both decrees were therefore reversed, with costs; and it was ordered that the cause be remanded to the said Court of Chancery, and from thence to the County Court, to be finally proceeded in, pursuant to the principles of this decree.

TENDER.

A. what Constitutes a Valid Tender.

1. Willingness to Pay.

2. When Actual Production of Money Dispensed with.

a. Necessity for Counting Out the Money.

3. Tender Must Be of Exact Amount Due.

4. Tender Must Be unconditional.

5. Time of Tender.

6. Medium of Payment.

B. To» Whom Tender Should Be Made.

C. Keeping Tender Good.

D. Effect of Tender.

E. Waiver.

P. Conflict of Tjaws.

G. The Plea of Tender.

H. Payment of Money into Court.

1. In General.

2. Identical Money.

3. Tender of Deed with Bill.

4. Waiver of Payment into Court.

5. Statutory Provisions.

A. WHAT CONSTITUTES A VALID TENDER.

As a general rule, the legal incidents of a valid tender are the actual production and proffer of the precise sum due, so as to relieve the creditor of anything on his part to be done so as to reap the full fruition of his contract. Bnt these the creditor may dispense with either expressly or impliedly. Lohman v. Crouch, 19 Gratt. 331; Koon v. Snodgrass, 18 W. Va. 320.

1. WILLINGNESS TO PAY — Bnt a willingness to pay the amount admitted to be due is not the equivalent of a legal tender of the amount, though followed by bringing the money into court to make the tender good, when no such tender was ever actually made. Norfolk, etc., R. Co. v. Mills, 91 Va. 613, 22 S. E. Rep. 556.

2. WHEN ACTUAL PRODUCTION OP MONEY DISPENSED WITH. — The actual production of the money will be dispensed with when the party to whom the offeris made refuses to receive the money before it is actually produced, and bases his refusal, not on the ground that It is not produced, nor on the ground that the amount produced is not the exact amount offered, but on some collateral and entirely distinct ground. Koon v. Snodgrass, 18 W. Va. 320: Lohman v. Crouch, 19 Gratt. 331.

Limitation ot Rule. — It must be observed, however, that although in a tender an actual, visible production of money is dispensed with where the party denies all right to pay any sum, yet it must appear that there was an actual offer to pay, and that the tenderer had the money, and was about to produce it, and would have done so if he had not been prevented by such denial of right to pay. Shank v. Groff, 45 W. Va. 543, 32 S. E. Rep. 248.

Thus, it Ras been held that an offer by a purchaser of land to pay the purchase money a short time after it fell due, was not a good tender, where he did not show any money. Moore v. Harnsberger, 26 Gratt. 667.

a. Necessity yob. Counting Out the Money.— But if the debtor has the á'ctual money in hand and offers it, he is not bound to count it out, if the creditor refuses to receive it. King v. King, 90 Va. 177, 17 S. E. Rep. 894.

3. TENDER MUST BE OF EXACT AMOUNT DUE. — Tender made and refused, to stop interest, must be of the exact amount due, and must be kept good and ready at all times to be paid to the cred itor at his demand, which must be shown by the tenderer. Therefore, if a tender be made of a less sum than is justly due, a refusal to receive it is no bar to the subsequent recovery of interest on the sum so tendered, from the time of the tender. Shank v. Groff, 45 W. Va. 543, 32 S. E. Rep. 248; Shobe v. Carr, 3 Munf. 10.

Declaration Does Not State When Debt Fell Due.— Where a declaration demands a particular sum without stating when it fell due or from what time it bore interest, a plea of tender alleging that ever since the bond became due and payable the defendant had been and still was ready to pay the said sum, and that he tenders it to him, is not insufficient on the ground that it does not aver the tender of a sufficient sum. Shepherd v. Wysong, 3 W. Va.46.

4. TENDER MUST BE UNCONDITIONAL. — Tender of payment of a debt conditioned on the surrender of collaterals held for that and other debts, is not a good tender. Fidelity Loan, etc., Co. v. Engleby, 99 Va. 168, 37 S. E. Rep. 957.

5. TIME OF TENDER.

Tender before riaturity of Debt. — As a general rule, where one party contracts to pay another money on a certain day, the tender, in order to be available, must be madeon the day itfalls due. It isbelieved, however, that a tender will generally be held valid that is made before the debt was due, provided the debt did not draw interest, or. if, when the debt did draw interest, the tender included interest to the maturity of the debt. Thompson v. Lyon, 40 W. Va. 87, 20 S. E. Rep. 812.

For example, where a bond is payable “on or before” a certain date, a tender before maturity of principal an.d interest to the date of tender is good. Sanders v. Burk. 2 Va. Dec. 175.

And where a bond falls due at a stated time, a special plea of tender at that time, in discharge of subsequently accrued interest, may.be filed. Shepherd v. Wysong, 3 W. Va. 46.

6. MEDIUM OF PAYMENT.

Confederate Money. — where a debtor borrowed confederate notes during the civil war, payable at a certain time, and in full compliance with his contract, made tender in such money as he borrowed, the only money then in' circulation in the country where both parties lived, the tender was held to be valid. King v. King, 90 Va. 177, 17 S. E. Rep. 894. See Lohman v. Crouch, 19 Gratt. 331.

But a tender of confederate money in payment of a confederate debt after the day of payment, is not sufficient. Sanders v. Branson, 22 Gratt. 364.

In an early Virginia case in which paper money was tendered, it was held that the plea ought to state specially the sort of money which was offered, and that the defendant was always ready to pay that very money which he brings into court. Downman v. Downman, 1 Wash. 26.

Tender of Check Not Good. — But an offer to give to a receiver of the court a check upon a bank, without proof that the party had the money in the bank at the time, though that was not doubted by the receiver, is not a good and valid tender. Poagne v. Greenlee, 22 Gratt. 724.

B.TO WHOM TENDER SHOULD BE MADE.

To Receiver of Court. — A purchaser at a judicial sale cannot make a good and valid tender of the money due for his purchase, to the receiver of the court appointed to collect it. Poague v. Greenlee, 22 Gratt. 724.

Tender to Joint Obligees. — But as a payment to one is a payment to all the joint obligees, so atender to one is a tender to all, for if this were not the case, it would be almost impossible to make a valid tender where there were many obligees. Warder v. Arell, 2 Wash. 282, 1 Am. Dec. 488.

C.KEEPING TENDER GOOD.

Moreover, a tender, to be available, must be kept good. In other words, the debtor must be willing and prepared to make payment at any time after the tender, and until the money is paid into court, in case the creditor should conclude to receive it. Thompson v. Lyon, 40 W. Va. 87, 20 S. E. Rep. 812, opinion of Judge Dent; Shank v. Groff, 45 W. Va. 543, 32 S. E. Rep. 248.

A tender of money is not sufficient to stop interest, where it does not appear that the money was kept in readiness to be paid whenever it might be called for. Lohman v. Crouch, 19 Gratt. 331.

For example, one making a tender and then using the money, and afterwards failing to pay the money into court, with a pleading relying upon such tender, loses its benefit, and will not be released from interest by it. Shank v. Groff, 45 W. Va. 543, 32 S. E. Rep. 248.

So also, a tender of money in payment of a judgment will not authorize a court of equity to stop the execution, where there is neither allegation nor proof that the defendant in the execution kept the money on hand for the discharge of the' judgment. Shumaker v. Nichols, 6 Gratt. 592.

Where the debtor tendered paper money to his creditor, who refused to receive it, whereupon the money was carried back to the debtor without being deposited anywhere for safe-keeping, so that it could not be used, but might always be forthcoming, it was held that the tender had no effect either at law or in equity. Call v. Scott, 4 Call 402.

D.EFFECT OF TENDER.

General Rule. — The general rule is that the effect of a tender in proper time is merely to relieve the debtor from subsequent interest and costs, if the money is unqualifiedly refused, and does not extinguish the obligation. 4 Min. Inst. (3d Ed.) 735; Cary v. Macon, 4 Call 605; Thompson v. Lyon, 40 W. Va. 87, 20 S. E. Rep. 812; Ross v. Austin, 4 Hen. & M. 502.

Tender of Goods. — But where the tender is of goods (not money), if the tender is established, the goods belong to the creditor, and the party in possession of them is regarded as his bailee. 4 Min. Inst. (3d Ed.) 736; Gilkeson v. Smith, 15 W. Va. 44.

E.WAIVER.

A strictly legal tender may be waived by an absolute refusal to receive the money, on the ground that no man is bound to perform a nugatory act. Thompson v. Lyon, 40 W. Va. 87, 20 S. E. Rep. 812.

F.CONFLICT OF LAWS.

If a person be discharged from a debt by a tender and refusal made in a foreign country by force of the laws of that country, he may defend himself elsewhere by relying upon such tender and refusal and the laws under which he was discharged. Warder v. Arell, 2 Wash. 282, 1 Am. Dec. 488.

Ci. THE PLEA OF TENDER.

A plea of tender should be that the defendant was always ready from the time when the payment should have been made, and not from the time of the tender. Downman v. Downman, 1 Wash. 26.

Time When Made. — Besides, a plea of tender ought to state particularly the day when it was made. Instead of pleading that he offered the principal and all the interest due, the defendant ought to compute the interest, add it to the principal, and say that he offered a certain sum. Downman v. Downman, 1 Wash. 26.

H. PAYMENT OF MONEY INTO COURT.

1. IN GENERAD. — The rule is well settled that a party, who in a court of law or equity, relies on the tender of money for the satisfaction of a debt, must bring into court, when he hies his pleading setting up such tender, the amount of money so tendered, unless this production of the money is waived by the other side; and if he fails to do this, the evidence of tender will be disregarded by the court. Gilkeson v. Smith, 15 W. Va. 44; Downman v. Downman, 1 Wash. 26; Robinson v. Gaines, 3 Call 243; Shank v. Groff, 45 W. Va. 543, 32 S. E. Rep. 248; Ross v. Austin, 4 Hen. & M. 502.

But a payment made to the plaintiff after action brought, is equivalent to bringing the money into court, in re ference to the costs of the plaintiff. Hudson v. Johnson, 1 Wash. 10.

The plaintiff may sign judgment if the defendant does not bring into court that which is money at the time of the plea pleaded. Downman v. Downman, 1 Wash. 26.

As upon a plea of tender the money must by law accompany the plea, the defendant in a subsequent suit may plead the tender of the money into court in the first action, and prove the payment to the clerk, which, if found in his favor, judgment will be entered for him. Robinson v. Gaines, 3 Call 243.

It was held in Campbell v. Braxton, 4 Hen. & M. 446, that a report showing a balance due from an executor was not sufficient ground for ordering the money to be brought into court, but that the plaintiff should proceed to a decree.

Quashing Execution on Judgment. — Jt has been held that a tender of money in payment of a judgment will not authorize the quashing an execution issued thereon, unless the tender is followed by the payment of the money into court, and a motion to enter satisfaction on the record. Shumaker v. Nichols, 6 Gratt. 592.

2. IDENTICAL MONEY. — To constitute a legal tender, however, it is not necessary that the identical money tendered be kept and brought into court. Thompson v. Lyon, 40 W. Va. 87, 20 S. E. Rep. 812.

Depreciated Currency. — But when by the contract the debt may be paid in money or notes, which are uncurrent, depreciated or not legal tender when the defense of tender is set up, the debtor may then bring into court the identical money or notes which he tendered. Gilkeson v. Smith, 15 W. Va. 44, citing Downman v. Downman, 1 Wash. 26.

3. TENDER Of? DEED WITH BILL. — A bill by a vendor for the specific performance oí a contract for the safe of land, which does not tender a deed of conveyance, and allege the ability and willingness of the vendor to convey a sufficient title, is bad on demurrer. Wood v. Walker, 92 Va. 24, 22 S. E. Rep. 523. Contra, Vaught v. Cain, 31 W. Va. 424, 7 S. E. Rep. 9. See monographic note on “Specific Performance" aimended to Hanna v. Wilson, 3 Gratt. 243.

Bill to Redeem Mortgage. — And a bill to redeem a mortgage must allege and rely upon tender if one is claimed, and the money must be paid into court. Shank v. Groff, 45 W. Va. 543, 32 S. E. Rep. 248.

4. WAIVER OF PAYMENT INTO COURT. — In an action of debt, when a plea of tender is filed, it is the right of the plaintiff to have the money paid into court before he takes issue on the plea, but if he fails to accept money so paid, or tendered to be paid into court as part satisfaction of the debt, and takes issue on the plea, he waives his right. Shepherd v. Wysong, 3 W. Va. 46.

5. STATUTORYPROVIvSIONS. — The statutes provide that in any personal action, the defendant may pay into court, to the clerk, a sum of money on account of whatis claimed, or by way of compensation or amends, and plead that he is not indebted to the plaintiff, or that the plaintiff has not sustained damages to a greater amount than the said sum. Va. Code 1887, § 3296; W. Va. Code, ch. 126, §2.

Payment to Clerk in Vacation. — When the law requires money to be paid into court, it cannot be paid to the clerk without the court's order. For example, it is held that the payment of money to the clerk in vacation is not equivalent to the payment of money into court, and if the clerk fails to return such money into court, the sureties on his official bond cannot be held responsible for its loss. State v. Enslow, 41 W. Va. 744, 24 S. E. Rep. 679, citing Stuart v. Madison, 1 Call 481. 
      
      Note. There is no evidence in the record of the death of the widow, who was living March 14th, 1805, when the commissioners made their report.— Note in Original Edition.
     