See Carmichael v. Rice, 49 N.M. 114, 119, 158 P.2d 290, 293 ("A tender need not be kept good where it clearly appears that the tender if made will not be accepted." citing Am.Jur. Tender, p. 234, sec. 28); See also, Shaner v. West Coast Life Ins. Co., 73 F.2d 681, 384 (10th Cir. 1934) (refusal to accept an offer of tender excuses the necessity to tender payment); Oklahoma Farm Mortgage Co. v. Cesar, 178 Okla. 451, 62 R.2d 1269 (Okla. 1936) (the longstanding rule is that tender is excused where it is known that the tender would not be accepted by the creditor); Telemark Development Group, Inc. v. Mengelt, 181 F.Supp.2d 888, 892 (N.D.Ill. 2001) ("[t]he long-standing rule is that tender is excused where it is known that the tender would not be accepted by the creditor"). For these reasons, the Court finds that the Default Order should be set aside; that the escrow be reopened; that a document be recorded in the real property records of Socorro County to negate the filing of the Special Warranty Deed; and that deeds be turned over to the Escrow Agent so that the Escrow Agent can continue to hold the deeds according to the terms of the Contract.
The right to an attorney's fee in a foreclosure proceeding depends upon a final judgment. Oklahoma Farm Mortgage Co. v. Cesar, 178 Okla. 451, 62 P.2d 1269, 1278 (1936); Miller v. Liberty Nat'l Bank Trust Co., 391 P.2d 269, 272 (Okla. 1964).
" The cases of Oklahoma Farm Mortgage Co. v. Cesar, 178 Okla. 451, 62 P.2d 1269, and Pierson v. American National Bank of Shawnee, Okla., 325 P.2d 426, 428, were also cited by the court in the Miller case in support of the above statement. This court also held in the Miller case, supra, in the second paragraph of the syllabus by the court:
The statute, Sec. 176, describes the person entitled to the attorney fee as being one "for whom judgment is rendered." In Oklahoma Farm Mortgage Co. v. Cesar, 178 Okla. 451, 62 P.2d 1269, this court held the plaintiff's mortgage to be valid, and in determining defendant's right to an attorney fee under the above statute said: "* * * Thereunder no attorney's fee may be allowed the attorney for the defendant unless the final judgment be against the lien claim."
For the defendants to be entitled to attorney's fees, the judgment must be against the lien claim. Oklahoma Farm Mtg. Co. v. Cesar, 178 Okla. 451, 62 P.2d 1269. Neither does the abandonment of the claim for a personal judgment entitle defendants to an attorney's fee.
Defendant was in no manner prejudiced because of the inaccuracy in this finding. We have so held in Oklahoma Farm Mortgage Co. v. Cesar, 178 Okla. 451, 62 P.2d 1269. In that case it appears that plaintiff sought to recover on a promissory note and foreclose on a mortgage given to secure the same.
2. Plaintiff argues, however, that the contract, being oral, is rendered invalid by the statute of frauds, citing Levy v. Yarbrough, 41 Okla. 16, 136 P. 1120; Boepple v. Estill, 181 Okla. 159, 72 P.2d 798; Bahnsen v. Walker, 89 Okla. 143, 214 P. 732; and Oklahoma Farm Mortgage Co. v. Cesar, 178 Okla. 451, 62 P.2d 1269. We do not consider these cases in point, as none of them involve equitable liens, or questions involving similar principles.
No attorney's fee may be allowed the attorney for the defendant unless the final judgment be against the mortgagee who is claiming a lien. Oklahoma Farm Mortgage Co. v. Cesar, 178 Okla. 451, 62 P.2d 1269. Section 11021, O. S. 1931, 42 Okla. St. Ann. ยง 176, will govern in this regard when the case is retried.
This is the third time this litigation has been before this court. See Cesar v. Oklahoma Farm Mortgage Co., 93 Okla. 254, 220 P. 590; Oklahoma Farm Mortgage Co. v. Cesar, 178 Okla. 451, 62 P.2d 1269. The judgment herein involved was rendered pursuant to the mandate of this court in the last-cited case.
Brown v. True, 1923, 123 Me. 288, 122 A. 850; Rutherford Nat. Bank v. H.R. Bogle Co., 1933, 114 N.J. Eq. 571, 169 A. 180. Sleeth v. Sampson, 1923, 237 N.Y. 69, 142 N.E. 355; Flyer v. Sullivan, 1954, 284 App. Div. 697, 134 N.Y.S.2d 521; Smith v. Mills, 1956, 207 Or. 546, 296 P.2d 481, 298 P.2d 185; Hatlestad v. Mutual Trust Life Ins. Co., 1936, 197 Minn. 640, 268 N.W. 665; Oklahoma Farm Mortgage Co. v. Cesar, 1936, 178 Okla. 451, 62 P.2d 1269. Putting together F.S. 1969, sections 697.02 and 725.01, F.S.A., the meaning of terms already discussed, and Florida's court opinions concerning the quality, function, and application of mortgages, we opine flatly that the statute of frauds, F.S. 725.01, F.S.A., does not bar a suit for damages upon an oral agreement to execute and deliver a mortgage upon real estate. A mortgage transfers no title, right of possession, or interest in land.