In this case, the instrument to be construed, which one side claims to be a mortgage, and the other to be a contract of purchase and re-sale, is in writing. It is not claimed, that any fraud was practiced by the appellee in order to obtain this contract; and where an interest of either party in the property is expressed in a written instrument, it will be presumed that the actual and entire interest is expressed. (Kerting v. Hilton, 152 Ill. 658).

In order to determine, whether an instrument like the one here in controversy is a mortgage, or a contract of purchase and re-sale, it is necessary to inquire whether any indebtedness existed at the time of the execution of the instrument. The appellee here held a master's certificate, which subsequently ripened into a master's deed conveying the title absolutely upon its face. No debt existed on October 8, 1878, from the appellants to the appellee. If an instrument is a mortgage, there must be some debt in existence, which the mortgage secures. (Burgett v. Osborne, 172 Ill. 227, and cases there cited). When the instrument of October 8, 1878, was executed, the twelve months, allowed by law to the appellants and to the other heirs of Daniel F. Carpenter, deceased, to redeem the forty acres from the foreclosure sale, had expired, or were about to expire. Upon the expiration of the statutory period of twelve months appellants had no interest in the property. During the three months after the expiration of the twelve months only judgment creditors could redeem. Inasmuch, therefore, as appellants had no interest in the property by reason of the expiration of the twelve months, there was no title in them which they could mortgage. (Burgett v. Osborne, supra). Appellee, by the terms of the contract, was to purchase the certificate of sale, and hold it for his own benefit; but an option was given to the appellants to re-purchase it by paying him the amount of purchase money, which he had advanced, within a certain time.

Counsel for appellants lays stress upon the use, in the agreement, of the word, "advance," and refers to authorities, which hold that, where money is stated to have been "advanced," it must be regarded as a loan to be repaid. (Chase v. Ewing, 51 Barb. 597; Powder Co. v. Burkhardt, 7 Otto, 110). There is nothing in the terms of the contract here to indicate, that appellee was to make an advance of money to appellants to purchase the certiticate for them, but he was merely to advance his own money to purchase the certificate for himself.

Counsel for appellants also alludes to several circumstances, as indicating that the intention of the parties was to make the transaction a mortgage. One of these circumstances is, that the premises were worth much more in value than the amount advanced by appellee to purchase the certificate of sale. Other circumstances are, that appellants were allowed to remain in possession, and to offer the property for sale, and to pay the taxes thereon, and were granted extensions, and allowed to make a payment after the period named in the contract had expired. As the agreement of the parties was embodied in writing, these outside circumstances could not be allowed to vary its terms; and, in addition to this, the acts of ownership, exercised by the appellants, were consistent with, and could have been performed under, the subsequent arrangement that was made between the parties.

We are inclined to the opinion that the circuit court decided correctly in holding that the original agreement of October 8, 1878, was not a mortgage, but a contract to convey upon payment of an agreed purchase price. But we are also inclined to think that it makes very little difference whether this construction of the original agreement is the proper one or not in view of the verbal arrangement subsequently made. Appellants contend that the original instrument was a mortgage; and appellee admits that, after September 1, 1882, when the new oral

agreement is alleged to have been made, he held the master's deed as a security for the indebtedness due both under the original agreement of October 8, 1878, and under the new oral agreement of September 1, 1882; and he thereby concedes that it was a mortgage after the latter date. If the oral agreement, claimed to have been made on or about September 1, 1882, was actually made and was a valid agreement, it supplanted the former written agreement; and inasmuch as thereafter the appellee held the master's deed as security for all the indebtedness of appellants to him, it would be immaterial whether, prior to that date, the agreement of October 8, 1878, was a mortgage or not.

Second-The next question is whether, on or about September 1, 1882, an oral agreement was made, by the terms of which the title held by appellee was to be security for the indebtedness existing prior to that time, and also for the indebtedness which might accrue and did accrue after that time.

The master in his report found that the oral agreement, contended for by appellee, was actually made, and that, in pursuance of it, subsequent advances were made by appellee to appellants; and that subsequent indebtedness was incurred by appellants to appellee upon the security of the master's deed held by appellee. The circuit court in its decree confirmed the master's finding upon this question. After a careful examination, we are of the opinion that the evidence sustains the finding of the master and the decree of the court. The testimony. of appellee and of William Plagge sustains appellee's contention that there was such an agreement. This testimony is confirmed by the fact that appellants were insolvent, owning substantially no interest in any real estate, and having given chattel mortgages upon their personal property. The evidence is clear that, from time. to time after September 1, 1882, appellee advanced money to appellants to enable them to pay their debts and re

lieve themselves from pressing liability. It is unnatural to suppose that appellee would do this, unless he was secured in some way, and there was no other way, in which he could be secured, unless the master's deed held by him was so held as such security. Again, W. W. Stevens, the attorney of one Herbert who held a judgment lien for $1100.00 against appellants, and settled the same with them at fifty cents on the dollar by accepting that amount advanced by appellee for appellants, swears that, in the course of the negotiations, appellants admitted that appellee was making advances to them for the payment of their debts upon the security of the land; and, while Stevens may have been mistaken in the description of the forty acres embraced in the deed, the evidence does not show, that appellee held any deed, or other security, upon any other tract of forty acres than that conveyed by the master's deed.

Third-Appellants do not deny that they owed the debts to appellee alleged by him to have been incurred by them after September 1, 1882. But, in an amendment to the answer filed by them to the appellee's cross-bill, they set up, that these subsequently incurred debts were barred by the Statute of Limitations, although they do not plead the Statute of Limitations to the indebtedness, alleged to have been created under the agreement of October 8, 1878. The subsequent debts were not barred by the Statute of Limitations. These debts consisted of two notes, one of which was due in 1884 and the other in 1885, and also of a book account. The bill in the present case was filed in May, 1897. Payments were made upon the notes as late as May, 1889. Ten years from the dates of such payments did not expire until 1899, after the present bill was filed. As to the book account, it appears from its face that there were mutual accounts between appellee on the one side and appellants on the other, and that there are some items in the account, which are within the period of limitation of five years prior to the filing

of the present bill. This being so, the whole amount, due upon book account, is taken out of the Statute of Limitations. (Miller v. Cinnamon, 168 Ill. 447; O'Brien v. Sexton; 140 id. 517).

Fourth-It is further contended by appellants, that the indebtedness, incurred after September 1, 1882, was not secured by the original agreement of October 8, 1878, claimed by appellants to be a mortgage; and that, this being so, appellee, as mortgagee, cannot tack to his mortgage debts subsequently incurred, and require their payment by appellants, as mortgagors, as a condition to their right to redeem. This doctrine is sustained by many respectable authorities. (1 Jones on Mortgages,4th ed.-sec. 360, and cases in note 4).

Other authorities, however, hold to the contrary, and the substance of them has been stated as follows: "If a person, entitled to redeem, goes into equity for that purpose, and he owes the mortgagee other sums than that secured by the mortgage, relief will be granted only on the payment of the total amount of his indebtedness, in accordance with the maxim that 'he who asks equity must do equity,' and to prevent circuity of action." (11 Am. & Eng. Ency. of Law,-2d ed.-p. 230; Anthony v. Anthony, 23 Ark. 479; Scripture v. Johnson, 3 Conn. 211; Rowan v. Sharps' Rifle Manf. Co. 33 id. 28; Coombs v. Jordan, 3 Bland. 330; Chase v. McDonald, 7 Har. & J. 160; Lee v. Stone, 5 Gill Brown v. Stewart,

& J. 1; Gelston v. Thompson, 29 Md. 595; 56 id. 431; Reed v. Lansdale, 1 Hard. 8; Walling v. Aiken, 13 S. C. Eq. 1; Ogle v. Ship, 1 A. K. Marsh. 211; McClanachan v. Siter, 2 Gratt. 280). This doctrine, however, is, under the authorities last above referred to, limited to cases where the mortgagee is invested with the legal title to the property, and makes further advances, in addition to the original debt secured, upon the credit of the land to which the title is held; and where the title held is made available to secure the further advances by a legal contract between the parties; and where the rights of