On Petition for Rehearing.
Felt, P. J.8. — In his petition for rehearing appellant insists that he offered to pay the amount due appellee before this suit was begun and that appellee refused to accept payment unless he would first dismiss another suit he had brought against it. He says the original opinion “virtually holds” that his refusal to accede to the demand of appellee for such dismissal affords the reason for affirming the judgment of the lower court. Conceding, but not deciding, that the finding that appellant “was ready and willing” to give his check for the amount due, if unmodified, would show a good tender, the condition imposed by appellant, and not the subsequent condition mentioned by appellee’s attorney, prevented the offer to pay, or tender, from being effective as a bar to appellee’s right of foreclosure. The finding shows that appellant offered to give his check “provided that said attorney would first procure the release” and satisfaction of said lien. An offer to pay the amount due on a mortgage or other lien, on condition that such lien be satisfied and released of record before the money is surrendered, is insufficient to operate as a tender. Storey v. Krewson (1877), 55 Ind. 397, 23 Am. Rep. 668; Ferguson v. Wagner (1872), 41 Ind. 450; Rose v. Duncan (1874), 49 Ind. 269; Bundy v. Summerland (1895), 142 Ind. 92, 41 N. E. 322.
The petition for a rehearing is overruled.
Note. — Reported in 100 N. E. 875; 101 N. E. 753. See, also, under *382(1) 2 Cyc. 1014; 3 Cyc. 388; (2) 29 Cyc. 951; (3) 38 Cyc. 1992; (4) 27 Cyc. 425; (5) 27 Cyc. 262; (6) 27 Cyc. 265; (8) 38 Cyc. 152, 154. As to sufficiency and effect of tender, see 77 Am. Dec. 470 ; 30 Am. St. 460.