
    Philip A. Rush v. Leland L. Pearson et al.
    [45 South., 723.]
    ■Chancery Practice. Injunction. Sale under trust deed. Amount admitted to Toe due. Tender. Payment.
    
    In a proceeding to enjoin a sale under a trust deed on the ground of usury, it is not error, on motion, to decree that the injunction he dissolved, unless complainant shall make payment of the amount admitted to be due, the injunction in such case to be continued until final hearing.
    Q?rom the chancery court of Tate county.
    ■Hon. Isaac T. Blount, Chancellor.
    Eush, the appellant was complainant in the court below; and 'Pearson, the appellee, and A. W. Sliands, as cestui que trust and trustee respectively in a deed of trust executed by Eush, were defendants there. From a decree unfavorable to the complainant he appealed to the supreme court.
    The appellant, Eush, sued out injunction to restrain the appellees from selling certain real and personal property under a deed of trust which Eush had previously executed to Shands as trustee for the use of the appellee, Pearson. The appellant’s bill averred that as a result of different transactions with appellee, Pearson, the appellant, “under business compulsion” executed to the said appellee three promissory notes aggregating $5,437.50; that the indebtedness evidenced by these notes, and because of which foreclosure of the deed of trust securing the same was threatened, was tainted with usury; that only $2,700 was actually due by appellant to appellee as the true indebtedness evidenced by tbe notes; tbat he, appellant, bad often offered to pay to said appellee sncb sum of $2,700 in full acquittance of tbe indebtedness now past due, but tbat said appellee contended always for tbe payment of tbe full face and interest' of tbe notes; and tbat, as appellant’s property was being advertised for foreclosure sale by the trustee acting at tbe request of said appellees, tbe aid of equity was necessary to protect appellant’s rights. Tbe appellant’s bill further recited tbat “complainant (Rush) does’ not tender in court tbe amount actually due, for two reasons; first, because, as tbe defendant, Pearson, has refused to accept tbe same or to express any purpose to accept the same in satisfaction of bis claim, complainant, Rush, could not close any transaction for a tender which would be permanent and continuous throughout tbe uncertain time when this case may go on, complainant’s means of obtaining such sum being tied up by tbe defendant’s usurious holdings; and, second, because since tbe defendant is about to have a sale made unlawfully, it is evident tbat tbe relief prayed should not depend on tbe making of any sort of tender. Appellee Pearson’s answer denied tbat tbe indebtedness was in any way tainted with usury, and also denied tbat Rush bad ever offered to pay even tbe alleged sum of $2,7Off as charged in bis bill. On tbe bearing of the cause on bill and answer and affidavits and motion by appellee Pearson to dissolve tbe injunction tbe court sustained tbe motion with tbe proviso tbat appellant, Rush, should be entitled to have tbe injunction continue in force until final bearing if he would pay over tbe amount be admitted owing. Instead of paying such amount, tbe appellant, Rush, prosecuted this appeal to tbe supreme court.
    
      Phil A. Push, pro se.
    
    Tbe strict rule requiring tender of money, as applied to debtors wishing to avoid any question of liability for interest and costs, should not apply to a complainant seeking to restrain sale of bis mortgaged property on account of. a sale threatened to be made for the purpose of realizing a sum in excess of what is conceded by the complainant to- be due to his mortgagee.
    In a case such as this, even where the excess claim is small, and where no substantial injury will be done to the parties in interest by requiring the debtor to pay, in advance, the amount of indebtedness admitted by him, the most that pur courts should do is to limit the restraint against foreclosure of the mortgage to that portion of the debt which is in dispute, and leave the mortgagee to sell the mortgaged property for the satisfaction of • the undisputed amount of indebtedness, if desired.
    The remedy by injunction is to prevent irreparable injury* and the remedy should be broad enough to reach every just case-coming before the court, according to the circumstances of each case.
    While tenders of amounts due under simple contracts should be made unconditionally, yet a tender of an amount secured by a deposit of collaterals or by a mortgage on valuable property may be made on condition that the collaterals or property he surrendered and released from the mortgage lien. Dorsey v. Barbee, 12 Am. Dec., 296; 2 Greenleaf Ev., § 605; Hailpin v. Phoenix Ins. Co., 118- N. Y., 165.
    
      Shands & Montgomery, for appellee.
    The only question in this case is: Does the law permit the complainant in a bill for injunction to restrain the foreclosure of a deed of trust given to secure the payment of an indebtedness, part of which is claimed to be usurious-, and part of which is admitted by the hill to he valid, without tendering or paying the amount which he himself in his bill admits that he justly owes ?
    This court has in many cases heretofore decided this question in the negative. In Railroad Co. v. Moseley, 52 Miss., 127, the court said that when a portion of the tax sought to be enjoined is legally due, a bill of injunction will not be entertained unless the portion properly collectible is paid or tendered. That this rule is not limited to tax cases is shown in Harmon v. Magee, 57 Miss., 410. See also Rose’s Notes to the case of Taylor v. Secor, 23 L. Ed. (IT. S. Sup. Ot.), 663.
    And to the same effect see Crittenden v. Pagcm, 89 Miss., 185, 42 South., 281; and Purvis v. Woodward, 78 Miss., 922, 29 South., 917.
    Argued orally by Edward Mayes, for appellant and bv A. W. .Shands, for appellee.
   Mayes, J.,

delivered the opinion of the court.

It was necessary for Rush to tender into court the amount admitted to be due, or pay same, before he could maintain his injunction. Purvis v. Woodward, 78 Miss., 922, 29 South., 917; Crittenden v. Ragan, 89 Miss., 185, 42 South., 281; Lewis v. Boguechitto, 76 Miss., 356, 24 South., 875; M. & O. Ry. Co. v. Moseley, 52 Miss., 127. We think the decree of the chancery court was correct. The decree is affirmed and the cause remanded, with leave to complainant to pay the amount admitted to be due in ten days after mandate filed; otherwise, the injunction stands dissolved.

Affirmed and remanded.  