tually made, the lien thereby becomes extinct. We have, then, only to apply an admitted principle in the law of tender, which is that tender is equivalent to payment as to all things which are incidental and accessorial to the debt. The creditor, by refusing to accept, does not forfeit his right to the very thing tendered, but he does lose all collateral benefits or securities. Coit v. Houston, 3 Johns. Cas. 243; Raymond v. Bearnard, 12 Johns. 274; Dunham v. Jackson, 6 Wend. 22; Hunter v. Le Conte, 6 Cow. 728; Coggs v. Bernard, 2 Ld. Raym. 916. Thus, after the tender of a money debt, followed by payment into court, interest and costs cannot be recovered. The instantaneous effect is to discharge any collateral lien, as a pledge of goods or the right of distress. It is not denied that the same principle applies to a mortgage, if the tender be made at the very time when the money is due. If the creditor refuses, he justly loses his security. It is impossible to hold otherwise, although the tender be made afterwards, unless we also say that the mortgage, which was before a mere security, becomes a freehold estate by reason of the default. That this is not true, has been sufficiently shown. It is said that mortgagees will be put to great inconvenience if at any period, however distant from the time of maturity, they must know the amount of the debt, and accept a tender on peril of losing their security. The force of this argument is not perceived. As a tender must be unqualified by any conditions, there can never be any good reason for not accepting the sum offered, whether it be offered when it is due or afterwards. By accepting the tender, the creditor loses nothing, and incurs no hazard. If the sum be insufficient, the security remains. It is only by refusing that any inconvenience can possibly arise. But whatever may be the consequences of refusal, the creditor may justly charge them to his own folly." The question was first before this court in Olmstead v. Tarsney, 69 Mo. 399, wherein it is said: "A tender by the debtor to the mortgagee on the law day will undoubtedly discharge the lien of the mortgage; and it has been repeatedly held that a tender by the debtor to a mortgagee of the amount of his debt after the law day, or at any time before foreclosure, will discharge the lien of the mortgage." But in Hudson v. Glencoe Gravel Co., 140 Mo. 103, 41 S. W. 450, 62 Am. St. Rep. 722, it was held that a tender after maturity of the debt secured by deed of trust on land does not extinguish the lien. The same general rule was announced in McClung v. Trust Co., 137 Mo. 106, 38 S. W. 578. Landis v. Saxton, 89 Mo. 375, 1 S. W. 359, goes further, and holds that, in order to defeat the lien of a mortgage, the tender must not only be made, but must be kept up. That action was not, however, for the purpose of declaring a mortgage lien forfeited, but was for the purpose

of having declared paid a note for the sum of $15,000 which plaintiff had executed to Saxton, and secured by deed of trust upon real property, and for which plaintiff sued to have declared paid, and the deed of trust satisfied, upon the ground that all of the debt and interest had been paid prior to the 10th day of June, 1881, except $6,200, at which time plaintiff tendered to Saxton that sum,-being, as he claimed, the balance due on said note,-but which was refused by Saxton. The tender was not kept up. It was held that under section 1008, Rev. St. 1879, which provides that, "where a tender and no deposit shall be made as provided in the preceding section, the tender shall only have the effect, in law, to prevent the running of interest or accumulation of damages from and after the time such tender was made," the only effect of the tender, if sufficient 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 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 et al., 20 Fla. 962; Cowles v. Marble, 37 Mich. 158. In Tuthill v. Morris, 81 N. Y. 94, it is said: 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 depriv ing 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

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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 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 (sections 2937, 2938, Rev. St. 1889), and upon principles of equity, it has gone farther, and holds that, in order that the tender may extinguish the mortgage lien, it must be kept up (Landis v. Saxton, supra; Hudson v. Glencoe Gravel Co., supra), 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 that 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.

RITCHEY v. HOME INS. CO. et al. (Court of Appeals at St. Louis, Mo. Feb. 3, 1903.)

ANSWER-DENIAL-INDEFINITENESS-PROCEDURE-WHEN CAUSE IS AT ISSUE.

1. Under Rev. St. 1899, § 604, providing that the answer of defendant shall contain a general or specific denial of each material allegation controverted by him, or any knowledge or information thereof sufficient to form a belief, and the statement of any new matter constituting a defense or counterclaim, an answer setting up several affirmative defenses, and concluding with the statement that, "further answering, defendant denies each and every allegation, matter, fact, and thing in the petition alleged not herein expressly admitted," is indefinite and uncertain, and subject to a motion on that ground.

2. Au answer contained several affirmative defenses, and a general denial, defectively stated, and plaintiff moved to require defendant to make his answer more definite and certain by stating what allegations were admitted and

what denied. This motion was sustained, and defendant refused to plead further, and the court rendered judgment for plaintiff after hearing his evidence. Held that, as the motion to make more definite and certain only affected that part of the auswer containing a denial, the affirmative defenses pleaded remained intact, so that plaintiff should have replied to these defenses, and the rendition of judgment on the ex parte hearing was before the cause was at issue, and erroneous.

Appeal from circuit court, Clark county; Edwin R. McKee, Judge.

Action by Elitha Ritchey against the Home Insurance Company and others. Judgment for plaintiff, and defendant company appeals. Reversed.

This is an action brought upon a policy of insurance, and in which, on motion of defendant insurance company, a portion of plaintiff's petition was stricken out, leaving remaining as plaintiff's declaration of her right of action the following: "Plaintiff, for cause of action, states that defendant Home Insurance Company was, on the 27th day of December, 1901, and for a long time prior thereto and ever since has been, and now is, a corporation duly organized, created, and existing under and by virtue of the laws of the state of New York; and as such corporation was, on said 27th day of December, 1901, and ever since has been, engaged in conducting a general fire insurance business in the state of Missouri, in accordance with the terms and provisions of the general fire insurance laws of the state of Missouri. Plaintiff further says that said defendant Home Insurance Company, by its contract and policy of insurance No. D. H. 148, dated on the 27th day of December, 1901, duly signed by its president and secretary, and countersigned by J. A. Whiteside, its local agent, at its Kahoka, Missouri, agency, and delivered to plaintiff, in consideration of a cash premium of twenty dollars, paid by plaintiff to defendant Home Insurance Company, defendant Home Insurance Company did contract, promise, and agree with plaintiff to insure plaintiff against all loss or damage by fire to the amount of two thousand dollars on the following described property, then owned by plaintiff, to wit: $300 the two-story frame building with shingled roof, and its additions adjoining and communicating, occupied as a dwelling house, including foundations, gas and water pipes and connection, gas fixtures and electrical equipments, plumbing work, stationary heating apparatus, door and window screens, storm doors and windows, and all other permanent fixtures belonging thereto and contained therein. $100 on the shingle-roof frame building and its additions, including foundations, occupied as a private barn $1,500 on the shingled-roof frame building and its additions, including fou...dations, occupied as a private barn. $50 on grain in barns above described. $50 on hay in barns above described. Plaintiff further says that in said

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policy of insurance all of the buildings and property aforesaid were erroneously described as being situate on 17-acre lot in sections 18 and 19, township 65, range 7, in Clark county, Missouri, adjoining the city of Kahoka, when in truth and in fact said 17-acre lot mentioned and described in said policy of insurance as adjoining said city of Kahoka was then and now is partly within the corporate limits of said city of Kahoka, and the buildings insured under and by said policy of insurance were situate upon that part of said 17-acre lot which lies within the corporate limits of said city of Kahoka, except the shingled-roof frame building and its additions, including foundation, occupied as a private barn, and insured under and by said policy of insurance for the sum of fifteen hundred dollars, which is situate partly within the corporate limits of said city of Kahoka, on the aforesaid 17-acre lot. Plaintiff further says that at the time of the insurance and delivery of said policy of insurance to said plaintiff it was intended by defendant Home Insurance Company to insure, and by the plaintiff to have insured, the buildings and property situate on 17-acre lot in sections 18 and 19, township 65, range 7, in Clark county, Missouri, in and adjoining said city of Kahoka, and plaintiff avers the fact to be that at the time of the issuance and delivery of the aforesaid policy of insurance defendant Home Insurance Company knew that said 17-acre lot was partly situate within the corporate limits of said city of Kahoka, and that the buildings and property thereon were situate upon that part of said 17-acre lot which lies within the corporate limits of said city of Kahoka, except the shingled-roof frame building and its additions, including foundation, occupied as a private barn, and insured under and by said policy of insurance for the sum of fifteen hundred dollars, which is partly situate within the corporate limits of said city of Kahoka, on the aforesaid 17-acre lot. Plaintiff further says that it was provided in said policy of insurance, by indorsement made thereon in writing, that in the event of a loss occurring thereunder such loss should be payable to Peter Wahl, mortgagee, as his interest therein might appear, that at the time of the issuance and delivery of said policy of insurance to plaintiff it was believed by plaintiff, and so represented to defendant Home Insurance Company by plaintiff, that said Peter Wahl had an interest in the aforesaid property as mortgagee, but plaintiff says that she was mistaken in her belief concerning the interest of said Peter Wahl in the aforesaid property, and avers the fact to be that at the time of the issuance and delivery of the aforesaid policy of insurance to plaintiff, and at all times thereafter, said Peter Wahl had no interest in the aforesaid property or said policy of insurance as mortgagee or otherwise. Plaintiff further says that on the 4th day of January, 1902, de

fendant Home Insurance Company, by its instrument of writing attached to said policy of insurance and made a part thereof, consented that barn number two therein insured for fifteen hundred dollars might be occupied by a careful tenant. Plaintiff states that said policy of insurance was issued for a term of one year, commencing at noon on the 27th day of December, 1901, and terminating at noon on the 27th day of December, 1902, which said policy of insurance is herewith filed, and made a part of this petition, and marked 'Exhibit A.' Plaintiff further states that at the time of the issuance and delivery of the aforesaid policy of insurance, and at all times thereafter to the time of the fire hereinafter mentioned, she was the owner in fee of all the property mentioned and described in said policy of insurance and insured therein. Plaintiff states that at about the hour of one o'clock a. m. on the 22d day of January, 1902, during the life of said policy of insurance, and while the same was in full force and effect, the shingled-roof frame building and its additions, including foundations, occupied as a private barn, and insured in said policy of insurance for and in the sum of fifteen hundred dollars, and then and there owned by plaintiff, was wholly, totally, and entirely destroyed by fire, then and thereby causing a loss and damage to plaintiff in the sum of fifteen hundred dollars. Plaintiff further states that by the terms and provisions of said policy of insurance defendant Home Insurance Company did promise, contract, and agree with plaintiff to make good and pay to her all such loss or damage to the property therein insured as should happen thereto by fire during the life of said policy of insurance. Plaintiff states that she has duly kept and performed all of the conditions required to be kept and performed by her by the terms and provisions of said policy of insurance, and faithfully fulfilled all of the requirements thereof; that immediately after the loss by fire as aforesaid she caused notice thereof to be given to defendant Home Insurance Company, and requested of said defendant Home Insurance Company such blank forms of statement and proofs of loss as defendant Home Insurance Company might desire to have filled out by plaintiff concerning the aforesaid loss by fire; that defendant Home Insurance Company disregarded and ignored her said request, and failed and refused to furnish plaintiff with blank forms and statements and proofs of loss so requested by her of defendant Home Insurance Company. Plaintiff further states that on the 14th day of February, 1902, defendant Home Insurance Company notified plaintiff in writing that it, the said Home Insurance Company, denied any and all liability under said policy of insurance, and refused to pay plaintiff, and still refuses to pay plaintiff, the amount of her claim under said policy of insurance on account of her

aforesaid loss by fire; that by reason of the premises plaintiff says she is damaged in the sum of fifteen hundred dollars. Plaintiff further states that Peter Wahl is made a party defendant herein in order that his interest, if any, in the property insured under said policy of insurance, and his interest, if any, in said policy of insurance, may be determined and adjudged in this suit. Wherefore plaintiff prays judgment against defendant Home Insurance Company for the amount of her claim and damages under said policy of insurance, to wit, the sum of fifteen hundred dollars," etc. After defendant's motion to strike out part of plaintiff's petition was sustained by the court, by leave the answer of the defendant Home Insurance Company, as follows, was filed: "Defendant, for answer to plaintiff's petition, admits that it made the policy of insurance sued upon. Further answering, defendant alleges that it is provided in said policy, among other things, as follows: 'If the interest of the assured be or become other than the entire, unconditional, and sole ownership of the property, and if the buildings insured be on ground not owned by the assured in fee simple, then in all such cases this policy shall be void, unless otherwise provided by agreement indorsed hereon.' Defendant alleges that at the time said policy was issued and at the time of the fire the interest of the assured was other than entire, unconditional, and sole ownership of the property, and the said building insured stood on ground not owned by the assured in fee simple without provision by agreement indorsed on said policy, by reason whereof defendant says plaintiff is not entitled to recover. Further answering, defendant alleges that at the time said policy was applied for the said assured falsely stated and represented that said building was worth largely more than $1,500, and that it was the intention of the assured to make material repairs to said building, so that the same would be placed in good condition; that at the time said policy was applied for and issued defendant was not familiar with the value or condition of said building, which fact plaintiff well knew; that insured, for the purpose of cheating and defrauding defendant, falsely represented that said building was of the value of $1,500, and falsely represented and stated that it was the intention of insured to make material repairs to said building; that defendant, in issuing said policy, relied upon said representations; that the same were material; that said representations were false and untrue in this: That said building was not worth $1,500, but did not exceed in value the sum of $100; that it was not the intention of plaintiff to make repairs on said building, and put the same in good condition, and plaintiff did not, after said policy was issued, at any time make repairs thereon. By reason whereof defendant says plaintiff is not entitled to

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recover. Further answering, defendant alleges that said building was insured as a private barn, and was to be occupied by careful tenant; that after said policy was issued, and without the knowledge of defendant, said building, or a portion thereof, was used as a creamery, whereby the risk of loss by fire was greatly increased, of which fact plaintiff had knowledge, so that defendant says plaintiff is not entitled to recover. Further answering, defendant alleges that at the time said policy was issued, and at the time of the fire aforesaid, said property described in said policy was incumbered by a deed of trust to secure the sum of $6,672, which said deed of trust was in full force, and not satisfied, at the time of the fire aforesaid; that when said policy was issued, and ever afterwards previous to the fire, the plaintiff concealed from defendant the fact that said incumbrance existed upon said property; that said fact so concealed was material fact with reference to said risk; that, if defendant had known of the existence of said deed of trust, it would not have issued said policy. reason whereof defendant says plaintiff is not entitled to recover. Further answering, defendant alleges that it now here offers to refund to plaintiff, and tenders into court for plaintiff, the premium paid on said policy, to wit, the sum of $20, and asks, on account of the fraud and misrepresentations of plaintiff herein before stated, that said policy be canceled, and for naught held. Further answering, defendant denies each and every allegation, matter, fact, and thing in the petition alleged, not herein expressly admitted, and, having fully answered, asks to go hence with its costs." Plaintiff then filed the motion following: "Now comes the plaintiff herein, and moves the court to require defendant Home Insurance Company to make its answer herein more definite and certain, by stating what allegations of the petition are admitted and what allegations are denied." Defendant Peter Wahl appeared and answered, claiming an interest in the property insured as mortgagee, but asserted no claim to the proceeds of the policy sued upon, and denied generally all other allegations of the petition. Plaintiff's motion was sustained by the court, and the defendant insurance company elected to stand upon its answer, refused to plead further, and, after evidence offered by plaintiff had been heard, the court rendered judgment for plaintiff in accordance with the prayer of her petition.

Fyke Bros., for appellant. W. T. Rutherford, for respondents.

REYBURN, J. (after stating the facts). The form of answer permitted under the Code is set forth in section 604 of the Revised Statutes of 1899, which provides what the answer may contain in the following language: "The answer of the defendant shell contain: First, a general or specific denial

of each material allegation of the petition controverted by the defendant, or any knowledge or information thereof sufficient to form a belief; second, a statement of any new matter constituting a defense or counterclaim in ordinary and concise language without repetition." Section 607 provides that, where the answer contains new matter, the plaintiff shall reply to such new matter, denying generally or specifically the allegations controverted by him, or any knowledge or information thereof sufficient to form a belief, and may allege in ordinary and concise language, without repetition, any new matter not inconsistent with the petition, constituting a defense to the new matter. Section 609 provides that the reply shall be governed by the rules prescribed in relation to answers. Under the foregoing sections it will be observed that a pleading, either answer or reply, may contain a general or specific denial,-that is, such pleading may traverse the allegations of the opposite pleading in whole or in part; but a fair and just construction of these sections requires that the pleader should make it clearly appear what portions of the pleading to which answer or reply is made is intended to be controverted and put in issue, and such has been the construction placed upon the sections above quoted providing for the form of the answer or reply. The pleading filed by defendant in this case admits the execution of the policy sued on, and sets forth at length affirmative defenses relied on to defeat the action, concluding with the language: "Further answering, defendant denies each and every allegation, matter, fact and thing in the petition alleged not herein expressly admitted, and, having fully answered, asks to go hence with its costs." The exact language adopted in the concluding paragraph of this answer, or language similar in substance, whether contained in an answer or reply, has been continuously condemned as defective, and frequently stamped with disapproval, by the appellate courts of this state. In Snyder v. Free, 114 Mo. 360, 21 S. W. 847, the answer consisted of a general denial of every allegation of the petition "except that which may be hereinafter expressly admitted." And in commenting upon such mode of denial Judge Sherwood says: "The central idea of code pleading is that an answer should not be evasive, but should meet the allegations of the petition fairly and squarely, thus presenting sharply defined issues for the triors of the facts to pass upon. Rev. St. 1889, § 2049. On a former occasion this court denounced the method here employed as a 'vicious method of pleading,' and this was an apt characterization of such a faulty way of pleading. It was never the design of the Code that a party plaintiff should have to carefully sift each denial of the answer, and to carefully compare it with each paragraph of the petition, in order to see what is admitted and what is denied. Such denials

may be general or they may be special, but in either event the issue must be sharply defined, and not left to surmise or conjecture." In Long v. Long, 79 Mo. 644, the reply was in the words: "Now comes plaintiff, and for reply says he denies each and every allegation in said answer not herein admitted, or otherwise pleaded to." In commenting on this form, Commissioner Phillips says: "(1) The reply in this case is bad pleading, and ought to be discouraged. The reply to new matter in the answer is similar to the answer to the petition, and it may contain a general or special denial. Vansant. Plead. 408, declares that the 'Code allows the defendant to elect whether he will answer by a general or special denial, and, having elected, he is bound by it. He cannot answer in both ways.' Dennison v. Dennison, 9 How. Prac. 247, is cited in support. We are not prepared to say that both modes of pleading may not be employed in the answer or replication. But we do not hesitate to hold that, when both are employed, the denials ought to be so framed as to leave no doubt in the mind of the court and the adverse party as to what is denied and what is admitted. This course not only sharpens the issues, but it aids in the preparation of evidence, and lessens expenses in bringing witnesses to meet matters not designed to be controverted at the trial. This reply says: 'Plaintiff denies each and every allegation not herein admitted or otherwise pleaded to.' Then what is admitted or otherwise pleaded to? To determine this the opposing counsel and the court must go through the pleading analytically, step by step, to discover what perchance may be admitted or denied." In Walker v. Insurance Co., 62 Mo. App. 209, the replication was a denial "of each and every allegation therein contained, except as hereinafter admitted." The motion of defendant to require the plaintiff to make his reply definite and certain by stating what allegations of the answer were admitted and what denied, was overruled by the trial court, which the appellate court pronounces error, stating that the trial court should have sustained the motion so as to have compelled the plaintiff to make certain what he denied and what he admitted. In like manner the form of general denial limited to "each and every material allegation" has been held an improper traverse, as not being in conformity to the statute, or clearly showing what allegations are meant to be put in issue. Edmonson v. Phillips, 73 Mo. 57; Pry v. R. R. Co., Id. 123; Collins v. Trotter, 81 Mo. 275. Section 621 of the Code, which provides as follows: "When a petition, answer or reply shall be adjudged insufficient in whole or in part upon demurrer, or the whole or some part thereof stricken out on motion, the party may file a further like pleading within such time as the court shall direct; and in default thereof the court shall proceed with the cause in the same manner as if no such orig