Barron v. Thompson
Barron v. Thompson
Opinion of the Court
January 18, 1919. The opinion of the Court was delivered by For the reasons therein stated, the judgment of the Circuit Court is affirmed.
MESSRS. JUSTICES HYDRICK, WATTS and FRAMER concur.
MR. JUSTICE GAGE. I dissent from the judgment of the Court. The master found that the plaintiff was guilty of fraud in bringing the action; and the Court did not reverse that finding. The Court found the plaintiff had not right to sue, and should have accepted the tender.
The master reported that "the $270 claimed to have been tendered by the plaintiff and claimed to have been paid into Court was in fact received by me as master as an officer of the Court as a payment of the money into Court." The master further reported that he "voluntarily" paid the money back to the defendant's attorney.
The defendant, therefore, has not failed in the performance of any duty. The plaintiff has abandoned his right, and is not entitled now to set up a lien.
Opinion of the Court
The opinion of the Court was delivered by
For the reasons therein stated, the judgment of the Circuit Court is affirmed.
Dissenting Opinion
I dissent from the judgment of the Court. The master found that the plaintiff was guilty of fraud in bringing the action; and the Court did not reverse that finding. The Court found the plaintiff had no right to sue, and should have accepted the tender.
The master reported that “the $270 claimed to have been tendered by the plaintiff and claimed to have been paid into Court was in fact received by me as master as an officer of the Court as a payment of the money into Court.” The master further reported that he “voluntarily” paid the money back to the defendant’s attorney.
The defendant, therefore, has not failed in the performance of any duty. The plaintiff has abandoned his right, and is not entitled now to set up a lien.
Reference
- Full Case Name
- Barron Et Al. v. Thompson Et Al.
- Cited By
- 1 case
- Status
- Published
- Syllabus
- 1. Mortgages- — Foreclosure—Attorney’s Fees — Where mortgagor had arranged a settlement with the holder of mortgage, a third'person who fraudulently went to holder of mortgage and bought the mortgage, and immediately turned it over'to an attorney for foreclosure, was not entitled to attorney’s fees, where mortgagor made tender at’ once of the principal and interest. 2. Tender — Foreclosure—Tender in Court — Homing Tender Good.— In a mortgage foreclosure, where mortgagor had tendered the principal and interest and placed the amount in the hands of a master, who decided that the tender was good, but returned the money to the mortgagor instead of into the Court, the tender was not kept open, ^nd plaintiff was entitled to a decree of foreclosure, although not entitled to attorney’s fees or costs.