BUTLER v. PORTER.

showed a good title, derived from the United States, which vested in him January 19th, 1853, it was incumbent on the defendant, Butler, if he would defeat the plaintiff's title by the tax deeds for those years for the other one-third or two-thirds, to identify the interest he had acquired by those deeds, and to show that the undivided interest claimed by him under those deeds included the third owned by the plaintiff. Until this should be done, it must remain entirely uncertain what or whose particular undivided interest the defendant had acquired by his tax deeds. This the defendant failed to do, and, therefore, failed to establish any title in himself for those years.

As to the taxes of 1851, it appears by the finding that the entire lot was assessed to one Whiting as nonresident; that the taxes were paid on one undivided third by Guild, (from whom defendant had, in December, 1852, purchased his tax title of one-third for the years 1843, 1844, 1845 and 1846); that defendant, Butler, purchased one-third for the taxes of this year, at the tax sale made October 3d, 1853, at which time he was the owner of one-third, by title derived from the United States, and which became vested in him April 11th, 1853, and that the remaining one-third was not sold for the taxes of 1851-for what reason does not appear, though the natural inference would be that it must have been paid. We entirely agree with the Circuit Judge, that the tax on the one-third not sold may have been paid either by defendant, Butler, or by Porter, (who had owned one-third from January, 1853). In the absence of all testimony, we cannot say by which it had been paid, or was most likely to have been paid. But before Butler could defeat Porter's title by the deed for the unpaid taxes of the year, it was incumbent on him to show that the third delinquent for taxes, and sold for such delinquency, was not his own, or, in other words,

BUTLER 0. PORTER.

that it was Porter's third. This he could easily have done, if true, by showing that his own third had been paid. Until he should do this, he left it quite as probable, upon the evidence, that the third sold was his own as that it was Porter's.

As to the taxes of 1852, it appears by the finding that the entire lot was assessed as non-resident to one Whiting; that Guild paid the tax on one-third, (he having held the tax titles, as above stated, subsequently conveyed to Butler,) and that the remaining two-thirds. were purchased by Butler at the tax sale of October, 1853, for which he received his deed in November, 1854. At the time of this purchase by Butler of the two-thirds, he claimed and owned one undivided third of the land, by title derived from the United States, and also claimed title to one-third by deeds for taxes of 1843 to 1846 inclusive, by purchase from Guild, and to two-thirds by deed for taxes of 1847. But, to say nothing of the tax titles, he had a good title to one undivided third of the lot; and the tax on one-third having been paid by Guild, it is evident his tax purchase of the two-thirds for the taxes of this year 1852 must have included his own onethird, for the non-payment of the tax upon which, he was himself in default to the State. This brings this sale precisely within the letter and spirit of the rule laid down by this Court in Page v. Webster, 8 Mich., 263. As owner of the one-third, it was his duty to have paid his portion of the tax before sale. It is insisted by the counsel for plaintiff in error, (defendant below,) that this duty is only imposed by possession. This is not the ground of the decision in Page v. Webster. The duty springs from the ownership. The sale is an entire thing based upon the delinquency in the payment of the taxes for which the sale is made, and the purchaser cannot be allowed to acquire the title of others in the property by a sale based, in part, upon his own default. We are

VAN HUSAN v. KANOUSE.

entirely satisfied with the principle of that decision, and see no reason for departing from it.

The judgment must be affirmed, with costs.

CAMPBELL J. concurred.

COOLEY J. did not sit in this case, having been of counsel.

Caleb Van Husan v. John Kanouse and Others.

Compound interest. -The non-payment of an installment of interest when due does not convert it into principal, nor entitle the creditor, without an agreement of the parties, to collect interest upon it.

Lien of mortgage discharged by tender.

Where the mortgagee of lands, after the mortgage becomes due, and before foreclosure, tenders to the holder the whole amount due, which the latter refuses to receive, the lien of the mortgage is thereby discharged. - Caruthers v. Humphrey, 12 Mich., 270.

And in case of an attempt to foreclose such mortgage afterwards, it is not necessary that the mortgagee should keep the tender good by a payment of the money into Court.

The legal tender act.- Congress had full power to pass the act making treasury notes a legal tender in payment of private debts.

Heard May 9. Decided May 13.

Appeal in Chancery from Washtenaw Circuit.

By the decree of the Court below, the bill of complaint was dismissed.

The facts are stated in the opinion.

Wm. A. Moore, for complainant :

In cases where it is expressly stipulated that interest shall be payable at certain fixed times, it has been held that interest may be charged on interest from the time appointed for its payment; that the same, in fact, becomes principal. - Gibbs v. Chisolm, 2 N. & McC., 38; Singleton v. Lewis, 2 Hill, (S. C.,) 106, 408; Doig v. Barkley, 3 Rich., (S. C.,) 125; Pierce v. Rowe, 1 N.

VAN HUSAN . KANOUSE.

H., 179; 1 John. R., 137; O'Neall v. Bookman, 9 Rich. L., 80; O'Neall v. Sims, 1 Strobh., 115; Eaton v. Bell, 7 Eng. C. L., 13; De Bruhl v. Neuffer, 1 Strobh., 426; Wright v. Eaves, 10 Rich. Eq., 582; Farwell v. Sturdivant, 37 Me., 308; Bainbridge & Co. v. Wilcocks, Bald. C. C., 541; Camp v. Bates, 11 Conn. R., 488; Mowry v. Bishop, 5 Paige, 98; Fobes v. Cantfield, 3 Ham., 17; Pindall's Ex's v. Bank of Marietta, 10 Leigh, 481, 484; Pawling v. Pawling, 4 Yeates, 220; Cheek v. Waldrum, 25 Ala., 152.

Again: The interest, by the terms of the covenant, is made payable at the end of each year, and is as much demandable as if a specific sum equal to the amount of interest had been promised, and in default of payment, as much entitles the plaintiff to demand interest. upon the amount so due and unpaid.

The fact that the amount so promised to be paid is described as interest accruing upon a larger sum, which is made payable at a future time, cannot the less entitle the plaintiff to demand interest upon the amount in default of payment, as a just remuneration in damages for the detention or non-payment. - Talliaferro v. King, 9 Dana, 331; Pawling v. Pawling, 4 Yeates, 220.

are

Interest on rents in arrear, ground rent, etc., is usually allowed, and these installments of interest analagous.- Naglee v. Ingersoll, 7 Penn., 185; Mc Quesney v. Hiester, 33 Penn., 435; Guthrie v. Stockton, 5 Harr., 123; Elkin v. Moore, 6 B. Monroe, 462.

Gold and silver coin constitute the only legal tender in the United States, and an act of Congress making treasury notes legal tender is unconstitutional and void.

Although a tender be sufficient, yet the defendant loses the benefit of the tender, unless he pay the money into Court at the time of filing his answer. - Livingston v. Harrison, 2 E. D. Smith, 197; Freeman v. Fleming, 5 Iowa, 460-3; Mason v. Croom, 24 Geo., 211; Brock

VAN HUSAN V. KANOUSE.

v. Jones, 16 Texas, 461; Clark v. Mullenix, 11 Ind., 532; Jarboe v. McAtee, 7 B. Monroe, 279; Brown v. Ferguson, 2 Den., 196; Cullen v. Green, 5 Harr., 17; De Wolf v. Long, 7 Ill., 679; Foote v. Palmer, Wright's R., 336; Wing v. Hurlburt, 15 Vt., 607.

Joslin & Blodgett, for defendants:

An agreement to pay compound interest must be in writing, and it must be upon additional consideration. 6 John. Ch. R., 313; Wilcox v. Howland, 23 Pick., 167; Milliken v. Southgate, 26 Me., 424; Dunbar v. Woodcock, 10 Leigh, 628; Pindall v. Bank of Marietta, 10 Leigh, 481; Childers v. Deane, 4 Rand., 406; Mowry v. Bishop, 5 Paige, 98; Ferry v. Ferry, 2 Cush., 92.

The mode of computing interest on long bond is well settled. See Dean v. Williams, 17 Mass., 417; Fay v. Bradley, 1 Pick., 194; Doe v. Warren, 7 Greenlf., 48; Story on Contracts, $596, §1033.

The complainant's authorities on the computation are exceptions to the American rule, unless when the suit is for the interest, in which case some of the States have allowed interest upon the interest due.

CAMPBELL J.:

The bill in this case was filed to foreclose a mortgage, payable in three annual installments, with annual interest. The defence set up was a tender in treasury notes of the United States, declared to be a legal tender by act of Congress. The amount tendered was conceded to be sufficient, unless each installment of annual interest, as it became due, was turned into principal.

Some evidence was introduced for the purpose of showing an agreement to compound interest upon that basis, but we are satisfied no such agreement appears. The only questions, therefore, which we are called upon to decide are-first, whether the law implies any agreement to compound in the manner referred to; and, second,