While I concur in the result reached by Justice CORSON in -the foregoing opinion, I would base such concurrence upon a quite -different course of reasoning. It does not seem necessary to consider at length the question -of mann-ei of service upon minors, for the reason that neither in the pleadings, findings, conclusions, or decree are the minors named as parties to this action, and especally for -the reason that the minors in no sense are parties to this appeal, and, not being parties to the appeal, they are not in a position to question the sufficiency of the service of the papers, even if it were con-fended that same had been served upon them.
Two questions arise in relation to this matter: First, is the decree good as against the guardian? Second, is it good again-st Hannah Thelin in her private capacity? It attempts to require her to receive money as guardian in satisfaction of an indebtedness, when, un-der the facts as they appear, in order to find the existence of such indebtedness, it becomes necessary to adjudicate the -title to real estate -standing in the name -of her minor wards. Inasmuch as the court would have no -authority, except in an action where the minors were parties, to make any adjudication concerning the title of lands standing in -their names, nothing further is necessary to show that -the judgment, so far as it attempts to- adjudicate the rights and duties of the guardian, should be reversed.
It might, however, be contended that, upon such reversal as to the guardian, the decree should remain valid as agains-t Hannah Thelin and the same modified and require her to- receive -one-third of the money and convey a one-third interest in the land; the same being -her widow’s interest in the estate. A sufficient answer to this — and -this answer would also be another ground for re*450versal of the judgment so far as it relates to her as guardian — is that the findings of fact are insufficient to warrant a decree. Under the findings, it appears that no tender of the money claimed to be due under the alleged mortgage was ever made, and until such tender the plaintiff would not be entitled to the relief sought. Without having made any tender, money was deposited in the bank and notice given to the administrator. Even if there had been a proper tender to' 'such administrator, if tender could be made to him, and even if there had been a proper tender to Hannah Thelin both in her private capacity and as guardian, yet it does not appear that this money was deposited in the name of the administrator or of Hannah Thelin, either in her private capacity or as guardian. Furthermore, it appears that, even if we could treat what was done as a tender, there was annexed to' such tender a condition that could not be required, to-wit, a conveyance of the land by Hannah Thelin in person and as guardian of the minors at a time when it appears that the estate was in course of administration, Much that was said by this court in the case of Pittsburg Plate Glass Co. v. Leary et al., 25 S. D. 256, 126 N. W. 271, is applicable to the attempted tender and performance in this case.
HANEY, J.The judgment should be reversed because the minor heirs mentioned in the record are necessary parties.
SMITH and McCOY, JJ., concur in. the views stated by the Presiding Judge.