cient in amount, was to stop the running of interest. The court said: "The tender cannot have the effect to deprive the defendant of his security created by the deed of trust for so much as may be found due at the time the tender was made. Authorities cited do say that where a tender has been made of the amount due it discharges the lien, still, without regard to the statute, a court of equity would not 454 decree affirmative relief, such as the release or satisfaction of a mortgage or deed of trust or other lien without payment of the amount due at the date of the tender. A party who seeks equitable relief must do equity. Until plaintiff does make such payment he cannot have the deed of trust declared satisfied as prayed for in his petition: Tuthill v. Morris, 81 N. Y. 98; Cowles v. Marble, 37 Mich. 158. But so far as this case is concerned, the statute before quoted is conclusive, and as before stated the only effect of the tender was to stop the running of interest." To the same effect are Crain v. McGoon, 86 Ill. 431, 29 Am. Rep. 37; Matthews v. Lindsay, 20 Fla. 962; Cowles v. Marble, 37 Mich. 158.

In Tuthill v. Morris, 81 N. Y. 94, it is said: "A party coming into equity for affirmative relief must himself do equity, and this would require that he pay the debt secured by the mortgage, and the costs and interest, at least up to the time of the tender. There can be no pretense of any equity in depriving the creditor of his security for his entire debt, by way of penalty for having declined to receive payment when offered. The most that could be equitably claimed would be to relieve the debtor from the payment of interest and costs subsequently accruing, and to entitle him to this relief, he should have kept his tender good from the time it was made. If any further advantage is gained by a tender of the mortgage debt, it must rest on strict legal rather than on equitable principles. The circumstance that a security has become or is invalid in law, and could not be enforced, even in equity, does not entitle a party to come into a court of equity, and have it decreed to be surrendered or extinguished, without paying the amount equitably owing thereon. Even securities void for usury would not be canceled by a court of equity, without payment of the debt with legal interest, until, by statute, it was otherwise provided. This statute does not change the general principle of equity, but on the contrary recognizes it, by excepting cases of usury from its operation. On this ground, even 455 if the alleged tender could be sustained, the plaintiff was not entitled

to a decree for the unconditional extinguishment of the mortgage."

It thus appears that this court, with respect to the effect of a tender after due of a debt secured by a deed of trust or mortgage, adheres to the common-law rule-that is, its only effect is to stop the running of interest on the debt from that time, but that in pursuance of statutory enactment (Rev. Stats. 1889, secs. 2937, 2938), and upon principles of equity, it has gone further, and holds that in order that the tender may extinguish the mortgage lien it must be kept up (Landis v. Saxton, 89 Mo. 375, 1 S. W. 359; Hudson v. Glencoe Gravel Co., 140 Mo. 103, 62 Am. St. Rep. 722, 41 S. W. 450), which is practically much the same thing as a bill in equity by the mortgagor or those holding under him to redeem.

It follows that there is no such thing in this state as the forfeiture of the lien of a deed of trust, or mortgage, by tendering the amount due which is secured thereby, although refused by the holder of the mortgage, but the only effect of such tender is to stop the running of interest after that time, unless the tender be kept up, which amounts to nothing more nor less than the payment of the mortgage debt, less the interest, from the time of the tender, for if by the tender the lien is forfeited, it is forfeited eo instante and cannot be reinstated by keeping up the tender.

The judgment is affirmed.

All concur.

The

A Tender of the Sum Due, principal and interest, at any time after the debt falls due, but before suit is brought, stops the interest and discharges the party from the costs of a subsequent suit: McCalley v. Otey, 99 Ala. 584, 42 Am. St. Rep. 87, 12 South. 406. authorities are conflicting as to whether a tender of the amount due on a mortgage discharges the lien: See the monographic note to Moynahan v. Moore, 77 Am. Dec. 489-491; Maxwell v. Moore, 95 Ala. 166, 36 Am. St. Rep. 190, 10 South. 444; Renard v. Clink, 94 Mich. 1, 30 Am. St. Rep. 458, 51 N. W. 692; Moore v. Norman, 43 Minn. 428, 19 Am. St. Rep. 247, 45 S. W. 857. In Hudson Bros. Commission Co. v. Glencoe Land etc. Co., 140 Mo. 103, 62 Am. St. Rep. 722, 41 S. W. 450, it is held that a tender made after the maturity of notes secured by a deed of trust or mortgage does not discharge its lien. It has no greater effect on the security than on the debt. Hence, if the tender is not kept good, the trustee or mortgagee may proceed to sell the property.

STATE v. LEONARD.

[171 Mo. 622, 71 S. W. 1017.]

FORGERY Consists in causing a writing to appear of some legal efficiency which, in truth, it does not possess. (p. 798.)

FORGERY.-The Similitude Between the Forged and the Genuine Instrument must be such as is necessary, or reasonably adapted to accomplish fraud. (p. 799.)

FORGERY-Undated Railroad Ticket.-When a railroad ticket provides on its face that it shall be good for passage when officially dated, a ticket without such date or with the date erased does not bear a sufficient resemblance to the genuine ticket to be the subject of forgery. (pp. 799, 800.)

NO PART OF AN INDICTMENT can be Rejected as Surplusage for the Purpose of Sustaining a Conviction Under It, which, if true, shows that no crime was committed. On the contrary, it must be accepted as an admission of record which the state cannot refute. (p. 801.)

Thomas B. Harvey, for the appellant.

Edward C. Crowe, attorney general, and C. D. Corum, for

the state.

625 FOX, J. The appellant in this case was indicted in pursuance of section 2012 of the Revised Statutes of 1899, charged with having in his possession a forged railroad ticket. His trial upon this indictment resulted in a conviction and punishment assessed at imprisonment in the county jail for six months. Numerous errors are complained of and earnestly urged as causes for reversal of that judgment.

It is not necessary to a full understanding of the questions presented to copy the indictment. The ticket charged to have been forged is such a puzzle that a copy of it, in this opinion, would not add any light to the discussion of the matters submitted to us for determination.

It is first contended by appellant that the allegations in the indictment are so repugnant and inconsistent to each other as to have warranted the court in sustaining the demurrer to the evidence or the motion in arrest of judgment. In order to apply the proper tests as to the sufficiency of this indictment, it is well to first inquire as to the act by which forgery is committed. It is elementary that the act of forgery consists of causing a writing to appear of some legal efficacy, which in truth it does not possess, as by giving it the similitude of the genuine instrument: 2 Bishop's New Criminal Law, 8th ed.,

sec. 572. There must, in the forged instrument, be such a resemblance to the genuine, as is reasonably calculated to deceive or mislead. The resemblance need not be exact, but the instrument must be, "prima facie," fitted to pass as true. Bishop further says in discussing this question, "that the closeness of similitude where similitude is required, will vary somewhat with the cases; the question in each case being whether or not, in the particular instance, the forgery has the needful adaptation to accomplish the purposed fraud": 2 Bishop's New Criminal Law, 8th ed., sec. 592.

626 Measured by these principles, we see that there must be in the forged instrument a sufficient closeness of similitude to the genuine instrument as is necessary or reasonably calculated to accomplish the fraud. The ticket charged to have been forged or altered, which it is further charged. was in the possession of defendant, is set out according to its tenor. This ticket provides that it shall be good for passage "when officially dated." It also provides that "any alteration whatever of this ticket renders it void."

We take it that it is clear that the genuine ticket must be officially dated and must not have any material alterations. It must also follow that the forged ticket must have the appearance of a genuine official date, for without the official date it would not be reasonably calculated to deceive or mislead anycne. As was said by witness Lihon, without such official date the ticket would be void. His inability to state whether the conductor would accept the ticket does not give validity to it; if its validity according to the instrument depended upon the official date, and such date was not there, it would be very rare that any frauds could be perpetrated with any such ticket. Now, as to the indictment: It sets forth the tenor of the ticket, and it contains the official date. Subsequently, it is charged plainly that the ticket, "with intent to injure and defraud was altered, forged and counterfeited, in this, to wit, that the date-stamp upon the back thereof of August 29, A. D. 1899, was obliterated and erased." Now, if said charge had followed with this allegation that a forged official date has been substituted for the genuine, we could readily see the force. of it. But standing alone as a declaration in a criminal charge, that one of the very elements that gave validity to the genuine ticket was obliterated and erased, seems to us as an admission that the ticket, as charged to have been in the possession of the appellant, did not have sufficient closeness of similitude to

627

the genuine ticket as to mislead or deceive anyone. If that is the case, that the forged instrument did not bear such a resemblance to the instrument it is intended to represent as is calculated to deceive, then and in that case the appellant ought not to be convicted.

The important question, so far as the indictment is concerned, is, whether the charge that the date-stamp upon the back of this ticket was obliterated and erased can be treated as surplusage and therefore not to be regarded as such repugnancy or inconsistency as would invalidate the indictment. It must be remembered that the defendant had the right, during the entire progress of the trial, to question the right as to whether under the indictment he ought to be called upon to answer it. We are familiar with the line of cases that hold that where the instrument is set forth according to its tenor, the purporting clause may be rejected as surplusage. We are also familiar with the doctrine that it is unnecessary, in an indictment for forgery, to charge specifically the manner and method in which the instrument was forged. Without undertaking to pass upon the question as to whether it was necessary or not in this case to charge specifically the alteration of the railroad ticket, does it fall within the line of cases in which it is said that it may be treated as surplusage? We think this case turns upon a broader ground, and that is, if the state admits in her pleading a state of facts which shows that the defendant cannot be convicted of the offense charged, then and in that case he ought not to be put upon trial for such alleged offense. As an example, if the counsel representing the state should, when the case is called for trial, announce in open court that some material fact necessary to the conviction of the defendant does not in fact exist and he would be unable to prove it, would the court, upon this admission, put the defendant upon his trial, or would it suggest the dismissal of the case? In this case, if our interpretation of the charge that the official stamp and date being obliterated and erased was in effect a charge that the ticket in possession of defendant did not so sufficiently resemble the one it was intended to represent as to render it deceptive and misleading, we have an admission 628 by the record that the defendant cannot be convicted of the offense with which he is charged. The cases to which our attention has been directed, as an examination of them will demonstrate, in which the purporting clause is held mere surplusage, have reference to a simple variance from the tenor of