The  appeal in this cause merely  involves an incidental petition or one secondary order,  which was  denied in the judgment appealed  from, and the payment of interest directed in  the judgment. The  principal petition was granted by the trial court and the judgment, in so far as it concerned, was not appealed by any of the litigants. The Court of First Instance of Tarlac, in conformity with the prayer of the complaint, decide that the plaintiff was entitled to redeem the land described  in the comp (which redemption had been  opposed  by Juan Tabliga), upon payment to the defendant, Juan Tabliga, of the sum for which  the latter had purchased it and, in addition, of the amount of the interest thereon,  at per cent per annum, up  to  the time when the  said plaintiff offered to redeem the land, and  at  6  per cent from the date of the said offer.

No appeal was taken with respect to the right to redeem upon payment of the  price  of the  sale; but the plaintiff appealed on  account of the following assignments of error:

1. Because  the judgment did not  allow  him damages at the rate of Pl,000 a  year, from  at least the 23d day of March,  1907; thus violation sections 93, 126, and 409  of Act No. 190, the Code of Civil Procedure.
   
   
2. Because  it compelled him to pay the 6 per cent,  in addition to the per cent interest, on the sum which the defendant refused to receive as. price of redemption; thus violating article  1100  of the  Civil Code an section 465 of the aforesaid Act  No. 190.

With regard to the  first error assigned, the  trial  court stated in it from  the evidence:  (1)  That it did not deem the estimate of P1,000 to be either just or correct as the value of  the products, in  one year, o .small an area of land,  not even though it contained a fishery; and (2) that the  only proof presented,  to  wit, the testimony of the plaintiff not  satisfied the court, and  that  in due time it had  indicated  to t attorneys the necessity of presenting satisfactory proof,  and that,  as had not adduced any further evidence in  this matter,  it concluded that would be improper  to  allow  damages, which  were not satisfactorily proved, in the amount requested. This court can not,  in cases like this at a different conclusion.   The existence  and  amount of  the  damages must be proved; otherwise, it  is not possible to  determine the obi lo pay  them.

By the citation  of  section 93 of the Code of  Civil Procedure,  the appellant  apparently wishes it to be understood that, the defendant not having demurred to the complaint, nor denied in his answer the facts all such facts  must be accepted  by the  court as  proved;  but  this  theory is without foundation, in the present case, since the defendant expressly denied all  the facts alleged  in  the complaint: "And answering the  said complaint."  read on page  8 of the bill  of exceptions, "they  deny each and all of the allegations thereof   *   *   *"  (they,  the  defendants Tabliga and Juan Villa  Agustin).

The plaintiff averred  that he was not contradicted  by the evidence in statement of the. amount which the property ought to  have produced, and he cited section 126 of the code aforementioned.   What  this section  d say is that if there  is  no answer offered to the  complaint, the relief granted to the plaintiff can not exceed that which he shall have demanded in his complaint; but in this suit there was  an  answer to the  complaint the  trial was not prosecuted with the defendants in default.

With regard to the second assignment of  error, the law provides that th redemptioner may,  within twelve months from  the date  of the purchase, redeem the  property  sold, on paying the purchaser the amount of his purchase,  with 1  per cent per month  interest thereon in addition, up time of redemption.    (Sec.  465, Code of Civil Procedure.) The judge divided this time  into two periods: one, in which the plaintiff  offered redemption  price,  and the other, that  following  this offer.  He  fix per cent per month up to the  time of the offer, and  6  per cent per annum thereafter.

The following conclusions of the judgment appealed from serve  to  illus this  point:  In 1904 a judgment  was rendered by the justice of the pea court of Tarlac, against Tomas Arenas and Esteban  Fabros.   On April  6 1906, the deputy sheriff of Tarlac proceeded  to sell the  lands of Este Fabros and Tomas Arenas.   The land of Tomas Arenas was  sold  to Juan Tabliga for P120.  On March 23, 1907, Esteban Fabros went to the house of Juan Tabliga and asked the  latter to allow him  to redeem  the land of Tomas Arenas, which land was mortgaged to him, Fabros; but Tabliga  replied that he  would allow  him to  redeem his own land but n that which was sold  as belonging to Tomas Arenas.  This petition, the judge adds, was made, as may he  observed, within  the  period of  one year, as prescribed by law.   Esteban Fabros, on a subsequent date, but before  the expiration  of the twelve months, again went to Tabliga's house,  accompanied by the  provincial sheriff, Santiago  de Jesus,  and asked that he be allowed to redeem the  land  referred to, but on this occasion  also the redemption was  refused by Tabliga.  (B. of e., pp. 1 and  11.)

The legal grounds  of the judgment  appealed from are: (1)  That, in conformity with  section 464 of Act No. 190, a judgment debtor, or his successors in interest,  may redeem the property sold,  as may also a or having a lien  by attachment, judgment  or mortgage;  so that while Fabros was in possession  of the land by reason of a mortgage or whatever  the lien was that arose from the credit which  he held  against Arenas,  and latter not having exercised  the right of redemption, the  right pertain Fabros as the creditor of  Arenas;  and,  (2) that the plaintiff Fabros offered to return to  the defendant  the sum which  the latter had paid the purchase, together with the interest and costs; that, not knowing th amount thereof, he took with him P150 for this purpose "and offered to count out the amount in the presidencia, but the defendant Juan Tabliga refused to allow the redemption of the land which was sold as belonging to Tomas Arenas."   (B.  of e.,  pp. 12  and 13.)

The trial court, in its judgment aforementioned, imposed upon the plaint obligation to pay "the interest at  12 per cent per annum until the time the said plaintiff offered to redeem  the land, and interest at 6 per cent from the date  of the said offer of redemption."   (B. of e., p. 13.) We esteem the second assignment  of error  to be well founded, that is, the relative to the plaintiff's having to pay an annual interest of 6 per cent besides  the 12 per cent  which he was  willing to pay up to  the time o the redemption.  In the case of Martinez vs.  Campbell (10 Phil. 626)  this court  ruled:

"When the right of redemption  is exercised  within the term fixed  by s 465 of the Code of  Civil  Procedure, and an offer is made of the amount due for the  repurchase of the property to which said right  refers,  it neither reasonable  nor just that the re-purchaser should pay interest on redemption money after the time when  he offered to repurchase and tendered the money therefor."

Moreover, it is a provision of the Civil Code  that if the creditor  to the  tender of payment has been  made should refuse to accept it without reason,  the debtor shall remain released from all liability by judicial (consignacion)  of the thing due.   (Art. 1176.)  And  the deposit properly made "by depositing the things due  at the disposal of  the judicial authority (in the  procedure now  in force, the sheriff is also included before whom  the tender shall be proven in a proper case and the notice of the consignation in other cases."  (Art. 1178.)  There is no reason f other interest, which appears  to be a penalty for delinquency, while there was no delinquency.

The judgment appealed from is affirmed, in so far as  it directs the payment of legal  interest  at 12 per cent, per annum up  to the time when the  plaintiff Offered to make the  redemption, and it is reversed, in s as it provides that the plaintiff shall pay 6 per cent per annum from the date of the said offer of redemption.  No special finding as to costs is made in this instance.   So ordered.

Torres, Moreland, and Trent, JJ., concur.