On Petition for a Rehearing.
Elliott, J.The áppellees’ counsel, in their brief on the petition for a rehearing, thus state the point which they argue : il Though other questions are stated in the petition for a rehearing, the only one which we desire to present is whether the complaint, or any paragraph of it, is bad because it is not averred that the money alleged to have been tendered to Morrison.is brought into court for his use and benefit.”
The contention of counsel is, that an averment that the plaintiffs “ are able, ready and willing to pay, and offer to pay, whatever sum shall be found or adjudged the defendant in this action on account being taken, or otherwise, and they offer to pay whatever sum the court shall adjudge in this case,” is sufficient, and that it is not necessary to bring the money into the court for the benefit of the defendant. The argument proceeds upon the theory that the equity rule that an offer without an actual tender is sufficient, governs the case, and we are referred to the cases which hold that in suits for specific performance a strict tender is not necessary. These authorities are, it is manifest, not in point in an action like this, where the plaintiff asks to be relieved from a demand which the law imperatively made it his duty to pay, and which another had paid for him. But the cases are by no means harmonious upon this question, even in cases of specific *94performance, for, as Mr. Pomeroy shows in his note, many of the cases require a strict tender. 3 Pomeroy Eq. Jur., p. 453, n.
As we said in our former opinion, there are cases where an offer to pay should be deemed sufficient, as, for instance, where the amount can not be ascertained without an accounting and an adjustment of the accounts between the parties; but we showed, as we still think, upon principle and authority, that a taxpayer should not be allowed to secure the cancellation of a tax certificate merely upon an offer to pay when the decree is entered. He ought not to be allowed to secure a cancellation of the certificate without paying, or at least making a strict tender of the money which it was his duty to pay, and which he admits to be due, for the duty is incontestable, and there is no need for an accounting nor for an adjustment of accounts.
There are cases where an offer is all that need be pleaded, as, for instance, where the plaintiff is bound to pay only on condition that the defendant execute a deed to him. Of that class are the cases cited by appellees. Hunter v. Bales, 24 Ind. 299; Lynch v. Jennings, 43 Ind. 276.
By no possible stretch within the bounds of reason can that class of cases be made relevant here, for here there is no condition; the plaintiffs are bound absolutely and unconditionally to pay what the defendant paid for them before they can secure a cancellation of his certificates or a destruction of his lien. There is a condition precedent to their right of relief, but not the semblance of a condition obstructs the defendant’s right to the money paid for the plaintiffs.
We are referred to this statement of Mr. Pomeroy: “ In general the rules, of equity concerning the necessity of an actual tender, are not so stringent as those of the law.” 3 Pomeroy Eq. Jur., p. 453, n.
This we affirmed in our former opinion; but we also affirmed that in a case like this equity required a strict tender. Mr. Pomeroy, in the same note to which counsel refer, cites authority showing that there are cases where an actual tender *95is required. If there are such cases it is difficult to perceive why this is not one of them, for it is not easy to conceive one in which equity more strongly demands either an actual payment or an absolute tender.
Counsel say : “ We ask the careful attention of the court to the following tax cases decided by the Supreme Court of the United States : Bennett v. Hunter, 9 Wall. 326; Tacey v. Irwin, 18 Wall. 549; Atwood v. Weems, 99 U. S. 183; Hills v. Exchange Bank, 105 U. S. 319.” These cases have had careful study, but without benefit to the appellees. In these cases it is decided that a tender, under the act of Congress, before a sale for direct taxes, is valid, although not made by the owner of the property. Obviously, they do not bear upon the case before us, where the question is, what must be done by the taxpayer to secure the cancellation of a certificate issued after sale to a purchaser who has acquired the lien of the State ?
At least one of the distinguished members of the Supreme Court has emphatically declared a doctrine directly opposed to that for which appellant contends. We refer to the case of Bailey v. Atlantic, etc., R. R. Co., 1 Cent. L. J. 502, where Mr. Justice Miller, Dillon and Treat, JJ., concurring, declared that an allegation that the plaintiff “ is ready and willing to pay” is not sufficient. ' We may observe here, as well as elsewhere, that in the well reasoned case of Hagaman v. Commissioners, 19 Kans. 394, that decision is fully approved.
The case of Smith v. Humphrey, 20 Mich. 398, does not decide what is required in a case like this, for the question of the sufficiency of the bill upon the point here involved was not before the court. It was neither discussed nor decided. It is true that the court reversed the case, with instructions to modify the decree so as to require the plaintiff to pay the sum due, but it did not discuss the question we have before us. ' The court said: “ But although we think the circuit judge was right in his construction of the act of *961869, we do not understand the principle on which he enjoined the sale of the lands, without making it a condition that the complainant should pay the sum which was lawfully demandable, and which had been previously tendered.” This exhibits the point of the decision, so far as it-even remotely approaches the question here under discussion, and certainly the case can not be considered as authority upon that question.
We have thus examined the cases outside of our own reports to which the appellees refer, and we feel confident that they do not conflict with what we here decide, or what we have heretofore decided, nor with what the authorities cited in our former opinion declare.
We have not contented ourselves with an examination of the authorities cited by counsel, but have searched for others. We find, as we declared in our original opinion, and declare in this, that in many cases, but not in all, an offer is sufficient in equity where a strict tender would be exacted at law. An offer is not in strictness a tender, nor, as appears, when we go to the foundation, is it so regarded in equity. This a simple illustration will make clear. It is necessary, in a case like this (and so much the counsel concede), to make a tender of lawful money before suit, and surely an offer would not supply the place of a tender. We suppose no one will contend that a mere offer would be sufficient. At all events, if an offer is the same as a tender, all our decisions, from first to last, are radically wrong. It is not, we affirm, the same as a tender; and an offer where a tender is required, whether in law or in equity, whether before suit or after suit, can not take the place of a tender.
There was a reason for the equity doctrine of offer or modified tender in former times which does not now exist, and where the reason of a rule fails, so, also, does the rule. The reason for the rule was that, where the mortgagor failed, or where one occupying a similar position failed, in an effort to redeem from the mortgage, his adversary acquired an imme*97-diate title. No sale was essential. The title was lost at once. No other thing was essential to vest title in the one party and take title from the other except the decree barring the redemption. But it is now very different even in mortgage foreclosures. A sale is essential to divest the one party of title and vest it in the other. The holder of a lien under the present law does not obtain an immediate title. He can only acquire title after sale on the decree. He must suffer the delay incident to a sale, and, in ordinary cases, he must pay the expenses occasioned by it if he acquires title, for they are usually taken out of the bid or paid by him. It is very apparent, therefore, that the reason for the old rule has entirely failed- even with respect to mortgages.
Not only has the reason for the old rule failed even in mortgage foreclosures, but there was never any reason for applying it to the foreclosure of tax liens. It is unjust and unconscionable as applied to such liens. Not only does it burden one who assists the government in collecting its revenues with the annoyance of delay and expense, but it also, in effect, rewards one who has failed to do what it is the duty of every good citizen to do — contribute his just proportion to the maintenance of the government.
It was said, with great force and elegance, in Harrison v. Haas, 25 Ind. 281, by Ray, J.: “ The plaintiff has not waited until the defendant should bring his action for possession of the property, when his defence could be made in a court of law, but has asked the court to interfere under its equity power and protect, him from the consequences of his own default. The complainant does not allege that the tax was illegal, but that through his own failure to pay what was due, the officer had proceeded to sell his real estate when he had personal property which was first liable to be sold. He now asks that the purchaser who has paid the tax due from him, and which was before sale a legal lien upon his land, .shall be required to deliver up his certificate of purchase, *98and thus, the taxes paid and the lien removed, the plaintiff"' shall go acquit of the debt and the purchaser suffer the loss. He asks a court of equity to deprive a purchaser, who has paid the taxes legally due from the plaintiff, of the color of title, which is his only means of enforcing the moral obligation resting upon the plaintiff to make good to him the sum which, through the default of the plaintiff, the officer, under-color of law, induced him to pay in discharge of the plaintiff’s debt. He asks a court of equity to place him in a better position than he would have occupied if he had at the proper time paid the taxes legally assessed against him, and which were a lien upon his land.”
It would require more time than we can give to the work to quote from the great number of decisions upon this subject in our reports, but an examination of them, made for the second time, strengthens our conviction that in discussing the subject the court has had in mind strict tenders, and not mere offers. In a few cases, it is true, the word “ offer ” has been used in a general way, but these cases are very rare. At all events, there is no case which holds that an offer is sufficient, so far as our search enables us to judge, and certainly none has been cited by counsel. In classing Lancaster v. DuHadway, 97 Ind. 565, among the cases directly affirming the necessity of a strict tender, the court, through the fault of the writer, was in error, and, although that case does affirm the general doctrine, too much importance was attached to it through the writer’s mistake in quoting from it. That case does, also, fully answer the appellees’ argument that the tender relieved the taxpayer from payment, for it does hold that tender does not discharge the’lien. We suppose it clear, that where a tender is spoken of, as it is in nearly all of our cases, it means a strict tender, and not a mere offer.
We have already referred to an opinion of Mr. Justice Miller in support of our conclusion, and we quote what he said in speaking for the court in the elaborately argued and thoroughly considered State Railroad Tax Cases, 92 U. S. *99575 (616) : “ It is a profitable thing,” said the court, “ for corporations or individuals whose taxes are very large to ob-. tain a preliminary injunction as to all their taxes, contest the case through several years’ litigation, and when in the end it is found that but a small part of the tax should be permanently enjoined, submit to pay the balance. This is not equity. It is in direct violation of the first principles of equity jurisdiction. It is not sufficient to say in the bill, that they are ready and willing to pay whatever may be found due. They must first pay what is conceded to be due, or what can be seen to be due on the face of the bill, or be shown by affidavits, whether conceded or not, before the preliminary injunction should be granted.”
The principle declared in the case from which we quote is a sound one. It is so, because a tender properly made stops all interest, and, certainly, he who makes it ought not to be allowed to retain the money through a course of litigation and still be relieved from the- payment of interest. It is so, be- > cause a tender where a sum is unconditionally due is only good when the money is brought into court. It is so, especially, where the defendant, if he succeeds, can only enforce his decree by a sale of the property, for the court can not give him title without a sale. All that it can do is to establish a lien and order a sale.
The case is one to which the rule declared in Taylor v. Reed, 5 Monroe, 36, strongly applies. There it was said: “ If he pretends to avail himself of the plea of tender in equity, because he could not make it at law, he ofight to be held to as great strictness as he would be held to at law.”
The case comes fully within the rule laid down in Daughdrill v. Sweeney, 41 Ala. 310, where it was said : “ If a legal tender was made, of the money acknowledged by the complainant in each case to be due, it should have been followed up by a payment of the money into court, at the time of filing their respective bills; and a compliance with this requisition should be shown by an appropriate averment in each *100bill. Such an averment not having been made, the bill in ■each case is -without equity.”
In Hagaman v. Commissioners, 19 Kans. 394, the court -said : “ To the suggestion of counsel for the plaintiff, that if the court found any of the taxes illegal, the judgment should have been for the plaintiff, conditioned upon his paying the legal tax, not that he had no case in court, we can not better reply than by using the forcible language of Mr. Justice Miller in Bailey v. Atlantia, etc., R. R. Co., C. L. J., vol. 1, 502.” The court then quotes from the opinion in that case, .and denies the doctrine contended for by counsel.
In our own case of City of South Bend v. University of Notre Dame, 69 Ind. 344, the complaint alleged a tender, and that the money had been paid into court; but the sum was not equal to the amount due, and the complaint was held bad, the court ■saying : “ The appellee could maintain an action to be relieved •of this illegal tax, but not until payment or a tender of payment had been made of that amount of the tax which had been legally assessed.”
In another case the rule was thus stated : “As his complaint ■does not show any such payment or tender, it is bad on the •demurrer thereto.” Mullikin v. Reeves, 71 Ind. 281. So, in Michigan Mutual L. Ins. Co. v. Kroh, 102 Ind. 515, Mitchell, J., said: “As the complaint avers that the amount tendered was more than the amount of the taxes assessed ¿against the lot, together with the costs, interest and charges thereon, and as it is averred that the tender was kept good, and the money brought into court to be at its disposal, the complaint was sufficient, and the demurrer was correctly overruled.”
We might add to these quotations, but we deem them sufficient to show that the rule has always been that a tender, and not a mere offer, must be made in such cases as this; and once it is granted that a tender must be made, then the long established rules upon the subject must be applied. If a tender is necessary, it must be an effective one. In a very *101emphatic manner the doctrine that in equity, as well as at law, the money must be brought into court, was asserted in Conwell v. Claypool, 8 Blackf. 124. The appellee in that case filed a bill to enforce the specific performance of a contract; the appellant answered, among other things, a tender, and the court, on motion, struck out that part of the answer because the money was not brought into court. Dewey, J., in delivering the opinion of the court, said : “And that part respecting the tender was also properly rejected, because the money tendered was not brought into court.”
For more than forty years, therefore, the principle we affirm has been recognized in this court, for the decision from which we have quoted was made in 1846. We do not refer to that case as affirming that in all suits in equity there must be a strict tender, but we do refer to it for the purpose of showing that it has always been the rule in this State that where justice requires it a strict tender will be exacted.
If the appellees’ counsel are right in asserting that what they call the equity rule applies, then no more than an offer was required at any time; for where the rulé applies at all, it dispenses with a tender entirely. If an offer is all that need be made before the suit is commenced, then all our cases, from the beginning of the long line to the end, are radically wrong.
The counsel’s argument proves too much, if, indeed, it proves any proposition relevant to the point in dispute. We suppose it quite clear that, under our decisions, a mere offer to pay, without a tender of the money, would not be sufficient, and if not, then the equity rule, as it is called by counsel, can have no application. We regard as clearly true this proposition: If an offer is sufficient, only an offer need be stated in the complaint: if a tender is required, then a tender must be averred and proved. As this case is one requiring a tender, and not an offer, it comes within the general rules applicable to tenders, and must be tested by them. In other words, if a tender is required it must be such as the law re*102quires, and if required in the first instance, it must, in such a case as this, be kept good by bringing the money into court.
No injustice can possibly result from the rule that where the amount is conceded to be unconditionally due the money tendered must be paid into court. The case before us is utterly unlike the imaginary cases put by counsel, for here a known sum is admitted to be unconditionally due. On what principle of right can the appellees proceed while holding in their own hands the money they concede to be due the ap^pellants, and where, as long as they do withhold it, they are, upon their own theory, in possession of what in equity and good conscience does not belong to them ?
If there was an accounting to be had before the amount could be ascertained, we should have a different case. If the amount was shown to be uncertain and incapable of being made certain without judicial assistance, the case would be very different. Doubtless, on a proper showing in a proper case, an offer to pay when the decree is entered will excuse a strict tender. But this is not such a case. So, too, a strict tender might be equitably dispensed with where the decree will give immediate title, and no sale is required to enforce the lien, but no such case is before us. It is probably true, that if a plaintiff should bring into court what he admits to be due, he would not be defeated if it should turn out that he was mistaken as to the amount of the lien; but where he admits that, upon his own theory, a known and certain amount is unconditionally due, he ought in equity to bring it into court. If he does not do this, he holds in his own hands what he confesses belongs in equity to another. If there was a condition, or a doubt as to the legal obligation to pay, it might, perhaps, be otherwise; but where there is no condition, and no doubt that nothing short of payment will discharge the lien, the tender should be kept good. But, as said in Lancaster v. DuHadway, supra, “ though it was tendered and refused, it is still unpaid.” If the money is *103due unconditionally and is unpaid, the equitable course is to bring it into court.
Filed March 7, 1888.The case before us requires that the money should be paid into court, and to the case now before us our decision is confined. Beyond that case we do not go.
Petition overruled.