I cannot agree with my associates in the disposition made of this appeal.
The answer of Mrs. Bray offering to do equity and to pay whatever amount the court should find due on the note given by her in part payment of the purchase money for the land was not excepted to by the plaintiff, and as against a general demurrer should be regarded as a sufficient tender, and offer to do equity to entitle her to redeem the land unless the evidence shows that she had forfeited her right of redemption by repudiating or abandoning her contract of purchase, and that to now permit her to exercise that right would be unjust and inequitable to plaintiff.
I do not think that the undisputed evidence shows that she had repudiated or abandoned her contract of purchase, or that any injustice will be done plaintiff by now permitting her to redeem, and the action of the trial court in instructing a verdict for the plaintiff should not be sustained.
I am also of opinion that the testimony of Mrs. Bray as to the statements made to her by the attorney of the plaintiff, in the suit brought on the note, as to the purpose of the suit and the intention of the plaintiff in regard to its conduct was admissible on the issue of the defendant's repudiation or abandonment of her contract.
I think it clear that Stelzig attempted rescission of the contract by the sale of the land without notice to Mrs. Bray, and with his suit for foreclosure, in which she had filed no answer, pending, was ineffectual to defeat her right to redeem, and I do not think the subsequent conduct of Mrs. Bray was such as to defeat the right against plaintiff in this suit.
I may, before the final disposition of this *Page 1064 appeal, give a fuller statement of my grounds of dissent.