The opinion
Behearing denied January 17, 1928.
On Petition eor Rehearing.
( 263 Pac. 389 .)
COSHOW, J.
The defendant Paget has presented an earnest petition for rehearing npon this court’s holding that the Circuit Court erred in permitting him to withdraw $592 tendered by him to the plaintiff. He argues that Paget was a stranger to the contract and therefore could not make a lawful tender. In onr opinion Paget was not a stranger to the contract. It is true he was not a party thereto, but he had purchased the land and claimed to be the owner thereof. Based npon that claim he was permitted to intervene and make a defense to the suit instituted to foreclose the mechanic’s lien. Under all of the authorities cited by said Paget he was therefore not a stranger and was entitled to tender the amount he deemed due plaintiff. Plaintiff refused to accept that tender at its peril.
“A mere stranger has no right to tender money to discharge an encumbrance on the property, or redeem it. But one who has an interest in the property mortgaged is not a stranger.” 2 Jones on Mortgages (7 ed.), 458, § 895; 26 R. C. L. 631, § 11.
In
Gibson
v.
Lyon,
115 U. S. 439 ( 29 L. Ed. 440, 442 , 6 Sup. Ct. Rep. 29), first column, we find this language:
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“It will be observed that the tender referred to in this offer was not made by the party obliged to pay the debt or entitled to do so, for the purpose of removing the encumbrance of the mortgage upon the property, nor in payment of the mortgage debt, and in satisfaction of the mortgage and the judgment rendered thereon, but was an offer made by a stranger to pay the amount due on account thereof, accompanied with a demand to execute an assignment to a named third party of the debt and securities, compliance with which was a condition of the offer of payment. If accepted, the effect would have been to transfer the debt and mortgage and judgment rendered thereon to an assignee, and not to extinguish it.”
Forderer
v.
Schmidt,
154 Fed. 475 (12 Ann. Cas. 80).
All of these authorities were cited by defendant Paget in support of his petition for rehearing and none of them supports his position. Defendant Paget alleged that he made tender and then brought the amount into court. There was an apparent mechanic’s lien encumbering the property he had purchased from defendant Lessing after this suit was instituted. He had a right, as the successor in interest of his co-defendant, to pay the debt and demand a cancellation of the lien.
Defendant Paget also contends that inasmuch as he alleged in his answer that he made the tender, kept it good by bringing it into court, and that allegation was denied by plaintiff, proof was required to authorize the court to find that a tender was made. It is elementary that a litigant is bound by his pleading. As quoted in the original opinion in this case, Paget alleged that he had made a tender and he kept that tender good by then bringing the amount into
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court. Defendant cannot now be heard to say that he did not make a tender.
The court is not rendering a personal judgment against Paget because of the contract between plaintiff and a defendant other than Paget. A judgment against him is ordered because he tendered the amount of the judgment. The court is not taking Paget’s money from him for the debt of another or without a hearing after notice. He sought to become a party to the instant suit, admitted by his tender a certain amount was due plaintiff, kept the tender good by alleging under oath that he then brought the amount into court for plaintiff. Under our statute he will not be permitted to withdraw the amount of the tender. He made the tender after negotiations in an attempt to settle. He made the tender after investigation. No injustice is done him by requiring him to pay the amount he solemnly admitted to be due.
The petition for rehearing is denied.
Rehearing Denied. Motion to Reconsider Denied.