A decree in equity is flexible as distinguished from the rigidity of the judgment at common law. It can be moulded to suit the rights of the parties, and it can be conditioned, as to one party, on the performance, by the other, of the terms imposed upon him. In equity, therefore, an offer of payment made in the pleadings is held, in many jurisdictions, to be a sufficient tender as far as performance of a covenant to pay is concerned, or as far as such payment is a condition of equitable relief.1 A party who is entitled to keep the property which he has received under the contract to enforce a lien thereon, is not bound to tender such property until the debt which is secured by such lien has been satisfied.2 In a number of jurisdictions, however, the distinction between the nature of the judgment at law and the decree in equity has been ignored; and tender is regarded as necessary in equity, before relief is sought.3 It has been held that a tender must be kept good in equity by paying money into court.4

23 See Sec. 168 and 2503 et seq.

24 Jonathan Turner's Sons v. Lee Gin & Machine Co., 08 Tenn. 604, 38 L. R. A. 540, 41 S. W. 57.

25 Jonathan Turner's Sons v. Lee Gin & Machine Co., 08 Tenn. 604, 38 L. R. A. 549, 41 S. W. 57. 1 Hansard v. Robinson, 7 Barn. & C. 90; Heywood v. Hartshorn, 55 N. H.


476; Bailey v. Buchanan, 115 N. Y. 297, 6 L. R. A. 562, 22 N. E. 155.

2 Moore v. Norman, 52 Minn. 83, 38 Am. St. Rep. 526, 18 L. R. A. 350, 53 N. W. 800.

3 Holton v. Brown, 18 Vt. 224, 46 Am. Dec. 148.

4 Malone v. Wright, 00 Tex. 49, 36 S. W. 420 [modifying, 34 S. W. 4551.