
    Wolcott v. Madden.
    "Where the findings show that a plaintiff brought suit without offering or tendering a conveyance of certain property, according to the terms of a certain instrument of writing, and the court held he was not entitled to recover, affirmed without prejudice.
    Appeal from Curry County.
    
      B. S. jStrahan, for appellant.
    
      Gyrus Madden, for respondent.
   By the Court,

Lord, J.:

Upon the issues presented by this case, tbe court found at tbe time of tbe execution of tbe deed, tbe note referred to in tbe pleadings was surrendered to tbe defendant, but tbat contemporaneously with tbe execution of tbe deed, another writing was entered into between tbe plaintiff and defendant which gave tbe deed tbe effect of a mortgage, tbe terms of wbicb allowed tbe defendant a reasonable time within which to sell a. certain mine to pay the sum sued for, and upon tbe expiration of wbicb time tbe plaintiff was to reconvey tbe property. Tbe court also found tbat the mine had not been sold, but did not find whether a reasonable time bad expired, and further tbat tbe plaintiff bad not made, or tendered any conveyance to tbe defendant.

Conceding tbe time to have expired, tbe plaintiff was required to have tendered a conveyance of the property before suing. He certainly ought not to be allowed to collect the debt, and keep the property also. The respondent suggests in his brief the surrender of the note was payment, and there was therefore no debt due upon which a mortgage could operate, and that the findings in this respect were error. The findings show that the note was surrendered because it was merged into another, or higher security. The plaintiff, however, not having tendered the deed, there was no error in the judgment of the court, which must be affirmed without prejudice to -further proceedings.  