Appelgarth

The plaintiff brought this suit to foreclose a mortgage on lands situate in Stanislaus county, and judgment was rendered for the defendant on the ground that the amount due on the mortgage debt was duly tendered before suit brought. The principal object in the case seemed to be the institution of a suit before the defendant could *412 make a legal tender of the amount due, and there seems to have been such a small interval of time between the tender and the filing of the complaint that it was scarcely appreciable. Why this anxiety to bring the suit before the defendant could make his tender is only to be accounted for by the fact that the plaintiff was desirous of collecting the percentage provided for in the mortgage to cover legal expenses. This mortgage had been sent to the attorney of the plaintiff at Merced, for foreclosure, before any steps looking toward a tender had been taken by the defendant; and the ascertainment of the fact that legal proceedings were about to be instituted probably stimulated the defendant to action, and prompted him to make the tender as speedily as possible. At all events, the testimony of the exact time when the tender was made, and that relating…