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about to engage upon others, instead of honestly holding his means subject to the chances of those adverse results to which all business enterprises are liable, the settlement is impeachable by a subsequent creditor." Where a conveyance was made by a son to his father immediately before the son's marriage, this was held to be fraudulent and void as against the dower right of the wife. "Voluntary conveyances by a judgment debtor to a third person of substantially all her property not exempt from execution, upon a trust and benefit reserved to her, are fraudulent as a matter of law." When an insolvent debtor conveys land as a mere gift, in trust for his own benefit, the conveyance is void as against creditors, whether the grantee does or does not know of the insolvency. So it has been held that "a conveyance of land and personal property by a father to his son upon condition that the son give to the parents one-half of the building and one-half of all the crops raised on the land during their lives, and one-third of the avails of the land to the survivor of them, that he pay certain sums to his sister and brother after the death of the parents and that he pay a mortgage upon the land, is held to have created a trust in the property for the maintenance of the parents and the payment of the sums specified, and to have been void as against the creditors of the father." An insolvent debtor cannot accumulate property under the cover of another's name, acting ostensibly as the agent of such other, and hold it as against his creditors; and where such a claim is made, it is always a question of fact whether the business actually belongs to such other person, or to the ostensible agent or debtor, and whether the alleged agency was a mere scheme and device to conceal and keep the property used in or gained by it from the debtor's creditors.

CHAPTER XII.

TENDER AND PAYMENT.

SECTION 1.

TENDER.

A tender is a formal offer by a person to deliver something which he is obliged to deliver to another. It is a formal offer which binds him who refuses it. But in order that an offer to deliver a given thing should amount to a legal tender, certain conditions must be fulfilled, which conditions depend somewhat on the circumstances of the case. There are many rights which cannot be enforced until there has been a legal tender of money or goods. Thus, where a party seeks to rescind a contract on account of fraud, and has received money under it, he must usually tender back such money before courts will grant him relief.

Parties may always agree on a certain manner of payment, and if such an agreement exists between the parties, it is binding on them and controls. Thus, the parties may agree to take merchandise or land in payment of a debt, and then a tender of these would be sufficient. If no other medium is agreed upon between the parties, the law recognizes payment only by legal tender, that is, money. Accordingly, where a check for the amount due, with costs, was deposited with a justice of the peace, it was held not to be a legal tender. Nor is a certified check, or commercial paper in general, sufficient. A tender of goods in satisfaction of a claim payable in money, is not a legal tender.

The constitution gives congress authority to define what shall be legal tender and it is provided by law that the following currency may be used:

1. Gold coin, in any amount, but if much worn, it is tender only for the value of its actual weight.

2. Silver dollars in any amount, but the "Trade Dollar," or commemorative issues, such as the "Columbian" or "La Fayette" issues, are not legal tender.

3. Silver one-half dollars, quarter dollars and dime coins, up to sums not exceeding ten dollars.

4. All coins of smaller denominations, for single payments not exeeding twenty-five cents.

5. Greenbacks, in any amount, but not for duties or interest on the public debt.

6. Treasury notes and gold and silver certificates, in any amount.

7. National bank notes, except for a few purposes which do not affect the public generally.

It may be stated to be the general rule that where objection to a tender is made on a specific ground, all other objections are thereby waived.

The obligation may also require the tender of a chattel. In such a case, the goods must be set apart and designated and offered to the other party at the time and place agreed upon. The whole quantity must be tendered and not a part. When money is tendered, the debtor must produce the exact sum due in legal tender and must offer it to the creditor. Tendering a larger amount, with the requirement that the party receiving it make and pay back the change, is not a legal tender, but if a larger amount is tendered and no objection is made, but the money is refused, this has been held to constitute a legal tender. But it is always best to tender the exact amount. Our supreme court says: "To constitute a valid legal tender there must be an actual offer of the sum due, unless the actual production of the money be dispensed with by a refusal to accept, or something equivalent thereto, and this offer must be an actual one, and not coupled with any condition." A declaration of readiness and willingness alone does not constitute a good tender. Where A agreed to release a certain mortgage on payment of $1000 to him by B, there was no default until there was an actual payment of $1000 or a legal tender thereof, notwithstanding A said that he would not accept the money or release the mortgage. Payment or a legal tender is a condition precedent in such a case. The tender must be absolute and without condition. Thus, a tender on condition that a receipt be given "in full of all demands," or "for all that is due," or "in a settlement

of the matter," or "in payment of a half year's rent," is insufficient. But a debtor may insist on the return of his note when he makes a tender, if a note was given. The tender must be made at the time and place specified in the contract between the parties, if any exists; otherwise, the debtor must seek the creditor. The debtor must keep the tender good, that is, he must have money of like kind and amount or the chattels ready at all times so that he can produce them if required. He need not, however, keep the identical money on hand which he had previously tendered.

Our statutes also provide that a party defendant in any action, at any time before trial, may serve upon the other party, in writing, an offer to allow judgment to be rendered against him for certain property or a certain sum, and costs, and if not accepted, if the plaintiff fails to recover a more favorable judgment, he cannot recover costs incurred after the making of such offer, but must pay the costs so made to the defendant. Tendering such a judgment by writing same in a justice's docket, has been held sufficient. Our statutes also provide that where a party is sued on contract for the payment of money and wishes to plead a tender, the money must actually be paid into court within five days after the service of the pleading alleging the same or within five days after the same shall have been made after action commenced, and must include costs up to the time of making the tender. The tender and payment into court, for the tenderee, of the money tendered, is a conclusive admission that the amount so paid in is due to the tenderee from the tenderer; and hence the money belongs absolutely to the tenderee whatever may be the fate of the action; that is, if money is tendered and paid into court, it belongs to the tenderee, although judgment may be entered in his favor for a less amount or for the other party; the money belongs absolutely to the tenderee and the tenderer is estopped from claiming otherwise. Accordingly, where a party, in a Wisconsin case, made an unnecessary tender of money in an action to remove a cloud from a title, the money was nevertheless held to belong absolutely to the tenderee. For this reason, an offer of judgment under the statute, is preferable, especially where the liability of the tenderer is uncertain.

The effect of a legal tender of money is not to extinguish the debt, but may generally be said to be that it stops the

running of interest and relieves the party from paying subsequent costs. In order that it should have this effect, however, the tender must be kept good. If suit is brought subsequent to a tender, the defendant must show that he had made a legal tender and had always kept it good by being willing, able and ready to pay.

The effect of a tender and refusal of a chattel is the same as though the chattel had been delivered. The debtor thereafter holds as bailee. The tender and refusal of a chattel, therefore, is equivalent to a discharge of the obligation or debt.

SECTION 2.
PAYMENT.

Most pecuniary obligations are discharged by the payment of money or its equivalent. When a contract does not provide otherwise, payment must be made in legal tender. (As to what is legal tender see Section 1.) If it is agreed that payment shall be made in a certain kind of currency, as in gold, or in silver, the debt can only be discharged by paying in this medium. Payment to be made in "specie" is satisfied by the payment of current metallic money. Payment in counterfeit money does not discharge a debt, although both parties were ignorant of the fact that the money was counterfeit, nor will the transfer of counterfeit securities operate as a payment of a debt. The taking of a bill of exchange or a check on a previous indebtedness of the drawer to the payee is prima facie payment of the debt. It is absolute payment, if the payee or holder, through his own negligence fails to present it within the proper time, or, presenting it, fails to give proper notice of its non-acceptance or non-payment, in cases where such notice is required. There may, of course, be an express agreement that the acceptance of a bill of exchange or check shall not operate as a payment unless the money is actually received. The taking of the promisory note of the debtor for a pre-existing debt does not extinguish the original debt nor operate as a payment, unless such was the express agreement of the parties. The taking of the note only suspends the time in which an action can be brought on the debt or contract until the note is due, but when the term of credit has expired, the creditor may bring his action and recover either upon the

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