Chapman

This suit was brought by plaintiff as assignee of the intervener to foreclose a mortgage made by the defendants to one Wm. N. Holway, of date May 1, 1900, to secure a promissory note for the sum of $3,000. Judgment was rendered for the intervener, from which the plaintiff appeals.

The note and mortgage were assigned by Holway to the intervener to secure his promissory note to her for the sum of $2,400 and were assigned with Holway’s note to the plaintiff by the intervener as collateral security for her note to the plaintiff of date, May 20, 1901, for the sum of $1,500, with interest at the rate of eight per cent, etc. These facts are alleged in the complaint in intervention, and it is further alleged: That this complainant paid the interest due on her personal note August 20, 1901; that thereafter three times she offered to Charles Lantz the money due on her personal note and demanded the reassignment of said securities; and that Charles Lantz has ever since refused to accept the money, claiming a fee not rightly belonging to him. Then there is a copy of a receipt given for the interest paid, which shows it to have been paid August 19, 1901. There were other facts alleged…

I concur in the opinion on the ground that I am not satisfied that we would be justified in disturbing the finding of the court as to the date of the tender made to the plaintiff by Mrs. Stull. On this point, I am satisfied from the evidence and from the allegations and prayer of the complaint in intervention, that Mrs. Stull herself at the time of filing her complaint did not believe that she had made any effectual tender prior to the date named, “Jan. 20,1902,” and that she then believed that she was entitled to exemption from interest only from that date. But it is suggested in the opinion that the court below may have been satisfied that she was under a mistake of law on this point, and upon this hypothesis the court, perhaps, was justified in its findings. Otherwise, I would think she should be charged with interest up to that date.

A petition for a rehearing of this cause was denied by the district court of appeal on May 7, 1906, and a petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on May 28, 1906.