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purpose of taking care of the same until Henderson became sober.
It is insisted that the court misdirected the jury as to the law. While a number of instructions were given to the jury at the instance of each party, only the fourth, fifth and sixth given on behalf of the People, and the sixth as modified and given on behalf of the defendant, are found in the abstract. We have repeatedly held that error in giving instructions will be considered on appeal or writ of error only when all the instructions given are set out in full in the abstract. Pratt & Co. v. Paris Gas Light Co. 155 Ill. 531; City of Roodhouse v. Christian, 158 id. 137; City Electric Railway Co. v. Jones, 161 id. 47; Gibler v. City of Mattoon, 167 id. 18; Staude v. Schumacher, 187 id. 187.
In City of Roodhouse v. Christian, supra, on page 141 it is said: "In determining whether or not an instruction is erroneous, it must be considered in connection with all the other instructions given in the case; and even though one or more instructions in a series may be erroneous, still, unless it can be seen that some injury thereby resulted to the party complaining, the error will be treated as a barmless one. It is therefore manifest that a case can only be properly considered, where the ruling of the trial court in giving instructions is assigned for error, when all the instructions given are presented by the ab. stract. All the instructions asked upon the trial should be set forth in the abstract. Parties have no right to set forth a single instruction, or the instructions given on one side of the case, and object to the same, leaving the court to go to the record for the purpose of determining whether others supply omissions or cure defects complained of.” In this case however, we have turned to the record and examined the instructions, and upon consideration of all the instructions given, as a series, we are satisfied that the jury were properly instructed as to the law, and that the plaintiff in error has no cause of complaint on account of the giving of the instructions
on behalf of the People, complained of, or because of the modification of his sixth instruction as given.
Finding no reversible error in this record the judg. ment of the circuit court will be affirmed.
HENRY CARPENTER et al.
82 100a 6 29
Opinion filed October 24, 1901.
1. WAIVER—when right to insist upon time as essence of the contract is waived. The requirements that time shall be of the essence of a contract to re-pay money advanced to take up a certificate of sale, and the right to insist upon a forfeiture for failure to re-pay the money within the time fixed, are waived by an extension of the time of payment and subsequent acceptance of part of the money.
2. CONTRACTS-entire interest of party presumed to have been expressed in written contract. Where an interest of either party in property is expressed in a written contract, it will be presumed that the actual and entire interest is expressed.
3. SAME—when contract is not a mortgage. A contract made more than twelve months after the sale of.property on a foreclosure, whereby one party agreed to advance money to take up the certificate of sale and hold it for his own benefit unless the other parties, the heirs of the mortgagor, should re-pay the amount advanced within a certain time, is not a mortgage, but a contract to convey.
4. LIMITATIONS—when book account is not barred. In an action on a book account which appears upon its face to be composed of mutual accounts between the plaintiff upon one side and the defendants upon the other, if some of the items are not barred by limitation the whole amount due upon the account is recoverable.
5. MORTGAGES-right of mortgagee to have payment of subsequent advances. If, after breach of condition, the mortgagee makes further advances under an oral agreement that the mortgage shall stand as security for them, a court of equity will not aid the mortgagor to redeem without requiring re-payment of such advances in addition to the amount due on the original indebtedness.
6. EQUITY-he who seeks equity must do equity. Where a party seeks in a court of equity to divest another of the legal title to land, the court may impose equitable terms for granting relief.
7. STRICT FORECLOSURE-rule as to when strict foreclosure is allowable. A strict foreclosure should only be decreed where it appears that the property is of less value than the mortgage debt, that the mortgagor is insolvent and the mortgagee willing to take the property in discharge of the debt.
8. SAME-when court should not decree a strict foreclosure. On a bill to redeem and a cross-bill to foreclose, if relief is granted on the cross-hill as well as the original bill the court should order a sale of the property, so as to permit the complainants to redeem in accordance with the statute.
Carpenter v. Plagge, 93 Ill. App. 445, affirmed in part.
Appeal from the Appellate Court for the Second District;heard in that court on appeal from the Circuit Court of Will county; the Hon. DORRANCE DIBELL, Judge, presiding
The original bill in this cause was filed on May 5, 1897, by the appellants, Henry Carpenter and Daniel B. Carpenter, to redeem forty acres of land described as the north-east quarter of the south-east quarter of section 36, town 34, north, range 12, east of the third principal meridian, Will county, Illinois, from a certain master's deed thereto, held by appellee, Charles Plagge, upon the theory that said deed was held by appellee as a mortgage to secure a certain amount, advanced and expended by appellee under the terms of the written agreement here. inafter set forth. The prayer of the original bill was for an accounting to determine the amount due appellee under said agreement, and that, upon payment thereof, appellee might be required to make a deed vesting the title to said premises in appellants; and also for general relief.
On September 30, 1897, appellee filed his answer to the original bill.
Subsequently, the original bill was amended by inserting a statement, that it was filed by appellants "in their own behalf and on behalf of the other heirs of Daniel F. Carpenter, their father, deceased.”
On November 16, 1898, appellee filed an amendment to his answer to the original bill; subsequently, on Febru
ary 13, 1900, he filed an answer to the bill as amended, said amendment to the bill having been made on February 7, 1900.
On May 24, 1899, the appellee, Plagge, filed a crossbill, which alleged the making of a subsequent verbal agreement by appellee and appellants, by the terms of which the deed in question was to be held by appellee as security, not only for the advances made as specified in said written agreement, but also for certain advances made and indebtedness incurred by appellants to appellee subsequently to the making of said master's deed and to the execution of said written agreement. The crossbill prayed for an accounting, and for a decree, requiring appellants to pay to appellee the amounts due him under said written agreement, and also upon said subsequent advances and indebtedness; and that, upon such payment being made, appellee should be permitted to convey to appellants said premises, and, in default of such payment being made within a short time to be fixed by the court, appellee's title under said master's deed might be established and confirmed free from all rights of the defendants, etc.
On June 24, 1899, the appellants, Henry and Daniel B. Carpenter, filed an answer to the cross-bill, denying that the oral agreement therein set up was made between them and the appellee. This answer also denied that appellants owed any other indebtedness to the appellee than that set forth in the original written agreement, and that appellee had no rights to said premises except to enforce a lien thereon for the amount due him for the purchase price of the master's certificate hereinafter referred to.
The cause was referred to a master in chancery upon the issue made upon the original bill and answer thereto, and upon the issue made by the cross-bill and the answer thereto. The master was directed, by the order of reference, to take and report the evidence and his conclusions
of law and fact. Testimony was taken before the master, and he made a report to which objections and exceptions were filed.
On May 12, 1900, the court below made a decree, in which it was ordered and decreed, that the appellants should pay to appellee within 233 days from that date the sum of $2871.52, with interest thereon at five per cent per annum from February 19, 1900, the date of the filing of the master's report, to the date when said redemption is made, and to the clerk of the court all the costs of the suit, and that, upon said payment being made within the time above limited, appellee should convey said premises to the appellants; that, in default of such payment being made by appellants to appellee within said time, appellants should be barred and foreclosed of all right or equity in said premises, and that the appellee should thereafter hold the same in fee, free and clear of all right, title or interest of appellants therein; and that, in case redemption should not be made by appellants within said time, appellants should thereupon surrender possession of said premises to appellee, and, upon their failure so to do and the filing of an affidavit showing such facts to the clerk, and the filing by appellee with the clerk of the notes and other evidences of indebtedness, for which said premises were held as security, duly canceled, a writ of assistance should issue to the sheriff, directing him to put the appellee in possession of said premises.
From the decree so entered an appeal was taken to the Appellate Court, and the Appellate Court has affirmed the decree of the circuit court. The present appeal is prosecuted from the judgment of affirmance so entered by the Appellate Court.
The facts, as gathered from the pleadings, the proofs, the master's report, and the decree are substantially as follows:
On May 7, 1863, Daniel F. Carpenter, the father of appellants, was the owner in fee of said forty acres, the