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same being his homestead, and on that date mortgaged said premises to one George W. Smith to secure the sum of $550.00. Thereafter on July 29, 1861, Daniel F. Carpenter died, leaving a widow and three sons, including appellants, and five daughters. After his death proceedings were brought to foreclose said mortgage, which re. sulted in a decree of foreclosure and sale for the balance of the indebtedness then due, amounting to $390.86. Under said decree the forty acres were sold for $465.58, and a master's certificate was issued therefor. The sale was made on October 8, 1877, and the master's certificate was dated as of that date. This certificate was assigned to one Henry B. Mason of Chicago.
On October 8, 1878, twelve months after the foreclosure sale and the issuance of the certificate of sale, the following agreement was entered into between the appellant, Henry Carpenter, and the appellee, Charles Plagge:
"This agreement made this 8th day of October, 1878, between Charles Plagge, of Monee, and Henry Carpenter, of Green Garden:
"Witnesseth: That said Plagge is to advance the money necessary to purchase the certificate of sale of (describing the forty acres) from Henry B. Mason, of Chicago, who now holds the same and to hold the same for his own benefit unless said Carpenter, or the heirs of Daniel F. Carpenter, deceased, or some or all of them shall, within fifteen months from such purchase, pay said Plagge the money advanced by him to make such purchase, with interest at ten per cent per annum from such purchase and upon such payment to said Plagge within said time—the time being the essence of this contract-said Plagge shall assign said certificate of sale to said Carpenter to be held by him for the benefit of such heirs, who shall contribute their fair and equal portion towards such payment, and if the full sum shall be paid by Carpenter himself, then for his own benefit solely,
H. CARPENTER." On February 10, 1879, a little more than a month after the expiration of the fifteen months allowed by the statute for redemption from the master's sale, a master's
deed conveying said forty acres was executed to appellee, and recorded. Nothing was paid by the appellants, or either of them, or any of the heirs of Daniel F. Carpenter within the fifteen months from October 8, 1878, specified in the agreement of that date. On January 8, 1880, upon the expiration of the fifteen months within which, by the terms of the written agreement, the money advanced by the appellee was to be paid, the appellee, by indorsement upon the agreement, extended the time for such payment from January 8, 1880, to January 8, 1881. On September 1, 1882, appellant, Daniel Carpenter, for himself and his brother, Henry Carpenter, paid on the agreement the sum of $127.61, and appellee indorsed on the agreement a receipt for said amount in the following words, to-wit: “Monee, Ill., Sept. 1, 1882.-Received on the within contract four hundred and twenty-seven dollars and sixty-one cents ($427.61).” Said sum of $127.61 was paid, not in money, but in corn, or grain, or farm produce. After September 1, 1882, nothing more was ever paid upon the contract or agreement of October 8, 1878, by appellants, or either of them, or by any of the beirs of Daniel F. Carpenter.
The appellee claims, that about September 1, 1882, when the payment aforesaid was made, a parol agreement was made between appellee and appellants, by which it was agreed that appellee should hold the title to the said forty acres, deeded to him by the master, as security for the amount advanced by him under the written agreement of October 8, 187,8, and for all other indebtedness then due from appellants to appellee, or which might become due and owing from them to him thereafter, and that he should re-convey said forty acres to them upon the payment of all such indebtedness; and that, thereafter, appellee held said title under such new arrangement, and made advances to appellants upon the strength of the same, permitting appellants to remain
in possession of the premises, receiving the rents, issues and profits thereof.
Appellee was engaged in conducting a general store in Monee, and also a grain warehouse. Appellants, during the years following September 1, 1882, traded at his store, and obtained goods from him, and sold him the greater portion of the crops raised by them, not only from the forty acres in question, but from other lands rented by them.
On July 10, 1883, appellants and two of their sisters executed a note for $500.00 to the order of the appellee, payable in one year with interest at eight per cent per
This note was given for money advanced for appellants to take up a judgment lien against them held by one Herbert, whose attorney was W. W. Stevens, said lien amounting to over $1100.00.
On March 12, 1885, appellants executed to appellee another note for $500.00, due in one year after date, and drawing eight per cent interest. The money, for which this note was given, was advanced by appellee to appellants to pay off outstanding claims against them. About the time the present bill was filed there was also due from appellants to appellee, besides the notes above named and the interest thereon, and besides the balance due under the agreement of October 8, 1878, a certain amount upon book account, growing out of the transactions between appellants and appellee running through a number of years.
The master found, in his report, that the verbal agree. ment above mentioned was made between the appellee and appellants about September 1, 1882, and that the subsequent indebtedness was incurred under and by virtue of that agreement. The amount, found due by the master, was made up of the balance due under the original agreement of October 8, 1878, and also of the amounts due upon the two notes for $500.00 each above mentioned, and also for the amount due upon the book account.
These findings by the master were approved by the court, and decree was rendered accordingly. The decree overruled the finding of the master that, by reason of the failure of appellants to pay to appellee the amount stipulated in the agreement of October 8, 1878, within the time therein limited and within the time granted by the extension, the rights of appellants had become forfeited and determined. The decree also overruled the report of the master, so far as it allowed the amount due on a certain note, called the Robinson note, to be included in the amount to be paid by appellants on redemption.
The decree of the court found that the contract of October 8, 1878, between Henry Carpenter and appellee was not a mortgage, but simply an agreement to convey upon the payment of the sum stipulated therein; it also found that neither appellants, nor any of the heirs-at-law of Daniel F. Carpenter, complied with said agreement, and that thereby the same became subject to forfeiture by appellee, but that appellee never formally exercised the right of forfeiture, nor took any steps to terminate the rights of appellants. The decree also found that the verbal agreement, claimed by appellee to have been made about September 1, 1882, was made.
C. W. BROWN, for appellants.
Hill, HAVEN & Hill, for appellee.
Mr. JUSTICE MAGRUDER delivered the opinion of the court:
First-The amount, paid by appellee in order to purchase the master's certificate of sale under the written agreement of October 8, 1878, was $550.00. Appellants contend, that they are entitled to redeem the premises in question upon the payment to appellee of said sum of $550.00, less the sum of $127.61 paid thereon on September 1, 1882, together with interest. The contention of
the appellants is, that appellee held the master's certificate and the master's deed subsequently obtained thereon, as security for the payment of the amount advanced to purchase the certificate, and that the assignment to him of the certificate and the execution to him of the master's deed, constituted a mortgage. The circuit court in its final decree held, that the agreement of October 8, 1878, was not a mortgage, but merely a contract to convey upon the payment of the sum named in the agreement of October 8, 1878.
The first question, therefore, is, whether the written agreement of October 8, 1878, was a mortgage, or a contract to convey upon the payment of an agreed purchase price.
We lay no stress upon the fact, that appellee obtained a master's deed upon the certificate, as indicating any intention to defraud, or take advantage of, the appellants. Appellee was entitled to a master's deed by the terms of the certificate of sale at the expiration of the period of redemption. It is not contended that, if appellants had the rights claimed by them under the written agreement of October 8, 1878, they did not have the same rights after the execution of the deed. The existence of the contract was recognized by the extension of one year granted on January 8, 1880. Its further existence was recognized when the payment of $427.61 was made on September 1, 1882, and endorsed upon the contract. By these acts appellee evidently waived the requirement, that time should be of the essence of the contract, and waived the right to insist upon a forfeiture because of non-fulfillment within the originaltime fixed. Appellants paid nothing after September 1, 1882, upon the written . agreement; and, as appellee's right to a master's deed would have expired five years after January 8, 1879, when the period of fifteen months for redemption ended, he surely was not bound to wait until his right to claim a deed was lost.