or administrators, to complete such sale, by executing a deed to the purchaser;

"SEC. 24. In all cases hereafter, where lands shall be sold under and by virtue of any decree of a court of equity, for the sale of mortgaged lands, it shall be lawful for the mortgagor of such lands, his heirs, executors, administrators or grantors to redeem the same in the manner prescribed in this chapter, for the redemption of lands sold by virtue of executions issued upon judgments at common law, and judgment creditors may redeem lands sold under any such decree in the same manner as is prescribed-for the redemption of lands, in like manner sold upon executions issued upon judgments at common law."

The statutes contained no limitation of time within which a sheriff's or master's deed must be taken after the period for redemption had expired, and prescribed no penalty or loss of right to the purchaser by reason of delay or failure in taking out such deed.

In Rucker v. Dooley, 49 Illinois, 377, the Supreme Court of Illinois, at its September term, 1868, reasoning by analogy, held in an equity suit, as against a purchaser of real estate at an execution sale, who was never in its possession, and had no claim to it, except under his judgment and sale, and who had taken out a sheriff's deed twenty-nine years after the sale, and in favor of a bona fide purchaser, in possession, claiming by mesne conveyances from the judgment debtor, that for the protection of purchasers for a valuable consideration, without notice, from the judgment debtor, and those claiming under him, a sheriff's deed ought not to be issued after the lapse of twenty years, and that application for a deed made after the lapse of seven years, during which the judgment was a lien, and fifteen months, the time given for redemption, and within twenty years, should be made to the proper court by rule on the sheriff and notice to the parties interested.

March 22, 1872, an act of the general assembly of Illinois was approved, entitled "An act in regard to judgments and decrees, and the manner of enforcing the same by execution,

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and to provide for the redemption of real estate sold under execution or decree," which went into force July 1, 1872, the provisions of which were not materially different from those above quoted, but section 30 was as follows, the additions to former acts being indicated by italics:

"SEC. 30. When the premises mentioned in any such certificate shall not be redeemed in pursuance of law, the legal holder of such certificate shall be entitled to a deed therefor at any time within five years from the expiration of the time of redemption. The deed shall be executed by the sheriff, master in chancery or other officer who made such sale, or by his successor in office, or by some person specially appointed by the court for the purpose. If the time of redemption shall have elapsed before the taking effect of this act, a deed may be given within two years from the time this act shall take effect. When such deed is not taken within the time limited by this act the certificate of purchase shall be null and void; but if such deed is wrongfully withheld by the officer whose duty it is to execute the same, or if the execution of such deed is restrained by injunction or order of a court or judge, the time during which the deed is so withheld or the execution thereof restrained shall not be taken as any part of the five years within which said holder shall take a deed."

Mr. John S. Miller, with whom Mr. Merritt Starr and Mr. W. W. Hammond, were on the brief, for plaintiff in error:

The law of the land, at the time the contract in question was made, as recognized and enforced by the courts, providing means of enforcement of contracts, became a part of the contract the same as though included in its terms; and the statute of 1872, changing such law, after plaintiff in error's contract was made and title vested thereunder, as such law has been here construed and applied by the state court, is a law impairing the obligations of her contract, and is obnoxious to section 10, article 1 of the Constitution of the United States. Tennessee v. Sneed, 96 U. S. 69; Edwards

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v. Kearzey, 96 U. S. 595; Louisiana v. New Orleans, 102 U. S. 203; Walker v. Whitehead, 16 Wall. 314; Field v. Brokaw, 148 Illinois, 654; Barnitz v. Beverly, 163 U. S. 118; Seibert v. Lewis, 122 U. S. 284; Bronson v. Kinzie, 1 How. 311, 319; Gunn v. Barry, 15 Wall. 610; Shapleigh v. San Angelo, 167 U. S. 646, 657; Ogden v. Saunders, 12 Wheat. 213, 257; McCracken v. Hayward, 2 How. 608, 613.

For the purpose of passing upon its constitutionality the statute must be understood to mean what the court of last resort of the State has construed it to mean. Bell v. Morrison, 1 Pet. 351;. D'Wolf v. Rabaud, 1 Pet. 476; Van Rensselaer v. Kearney, 11 How. 297; Tioga R. Co. v. Blossburg & C. R. Co., 20 Wall. 137; Townsend v. Todd, 91 U. S. 452; Scipio v. Wright, 101 U. S. 665; Wilson v. North Carolina, 169 U. S. 586.

The English common law of mortgages was adopted in Illinois. A mortgage is a conditional conveyance of the fee. After condition broken, the title becomes absolute in the mortgagee, who may recover possession as against the mortgagor. After condition broken the mortgagor has only an equity of redemption. After decree of foreclosure and sale, the right of redemption was limited to twelve months from the sale, and if not exercised within that time, it was barred. Stephens v. Ill. Mut. Ins. Co., 43 Illinois, 327. The estates in the land remain the same in such case, with the qualification that the amount and time of redemption are absolutely fixed by the decree and sale. Stephens v. Ill. Mut. Ins. Co., supra; Wedgbury v. Cassell, 164 Illinois, 622.

Such was the law of the State as promulgated by the courts of last resort at and before the date of the mortgage contract in question in this case. Williams v. Brunton, 3 Gilm. 600, 622; Kruse v. Scripps, 11 Illinois, 98, 104; Carroll v. Ballance, 26 Illinois, 9, 16; Chickering v. Failes, 26 Illinois, 507, 519; Nelson v. Pinegar, 30 Illinois, 473, 481; Griffin v. M. Co., 52 Illinois, 130, 145; Kenyon v. Shreck, 52 Illinois, 382, 386; Kelgour v. Wood, 64 Illinois, 345; Longwith v. Butler, 3 Gilm. 32, 36.

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The right of the mortgagor, or his grantees, to redeem after condition broken is a purely equitable right-the creation of courts of chancery; and can only be asserted in a court of equity. It could not be recognized in a court of law in an ejectment suit, as is done in the case at bar. Kenyon v. Shreck, 52 Illinois, 382, 386; Bracken v. Cooper, 80 Illinois, 221, 231; Mulvey v. Gibbons, 87 Illinois, 367, 383.

His right of redemption after sale and under the statute was only upon the absolute condition of making full payment, within a prescribed time, of the bid, interest and costs.

And so the law of Illinois remained after said date, and still remains and is enforced in cases where said statute of 1872 does not apply to change it. Kelgour v. Wood, 64 Illinois, 345; Vallette v. Bennett, 69 Illinois, 632; Harper v. Ely, 70 Illinois, 581; Oldham v. Pfleger, 84 Illinois, 102; Davis v. Conn. Mut. L. I. Co., 84 Illinois, 508; Mulvey v. Gibbons, 87 Illinois, 367, 382; Fitch v. Wetherbee, 110 Illinois, 475, 487; Smith v. Mace, 137 Illinois, 68, 74; Esker v. Heffernan, 159 Illinois, 38; Walker v. Warner, 179 Illinois, 16, 23; Ware v. Schintz, 190 Illinois, 189, 193; Farrar v. Payne, 73 Illinois, 83, 88; Stone v. Tyler, 173 Illinois, 147, 155.

The legal title here passed to Johnson, the grantee in the trust deed, and became absolute in him as trustee for plaintiff in error, on condition broken, which occurred as early as 1869. That legal title in Johnson, trustee, was not divested and revested in the mortgagor, or affected, by the foreclosure decree in equity and sale thereunder, unless such effect of divesting a title is given to the statute of 1872 here in question.

By the law of Illinois, as promulgated and enforced by the courts of last resort at and prior to the date of said mortgage contract, if the mortgagor and his grantees failed to redeem the mortgaged premises from foreclosure sale within the time limited by the statute, and the decree of foreclosure, his equity of redemption was barred and foreclosed, and thereafter he had no further right, title or claim in or to the premises. Burgett v. Osborne, 172 Illinois, 227, 238; Bozarth v. Largent,

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128 Illinois, 95, 107; Smith v. Mace, 137 Illinois, 68, 73; Stephens v. Ill. Mut. Fire Ins. Co., 43 Illinois, 327, 331; 2 Jones on Mortgages, § 1661; Mulvey v. Gibbons, 87 Illinois, 367, 382; Masey v. Westcott, 40 Illinois, 160; Herdman v. Cooper, 138 Illinois, 583; Lucas v. Nichols, 66 Illinois, 41; McLagan v. Brown, 11 Illinois, 519; Fitch v. Wetherbee, 110 Illinois, 475, 487.

Defendant in error could only recover in this ejectment suit on the strength of his own title. Hague v. Porter, 45 Illinois, 318; Vallette v. Bennett, 69 Illinois, 632; Hammond v. Shepard, 186 Illinois, 235.

But on the other hand, defendant in error could not recover even if he had the legal title, while plaintiff in error rightfully held the possession of the land under a complete equitable title. Stow v. Russell, 36 Illinois, 18, 36; Staley v. Murphy, 47 Illinois, 241, 245; Kilgour v. Gockley, 83 Illinois, 109; Sands v. Wacaser, 149 Illinois, 530, 534.

As construed by the Supreme Court of Illinois in the case at bar, the statute of 1872 has so changed the law as it existed at the date of the mortgage contract that notwithstanding the mortgagor and those claiming under him did not redeem said premises from said sale according to law, when the certificate of purchase became void, the title to said premises must, in order to give practical effect to said statute, be still in the mortgagor or in the defendant in error claiming under him.

For the purpose of determining whether it infringes the Constitution, as claimed, the statute must be understood to mean what the courts of last resort of the State have construed it to mean. Bell v. Morrison, 1 Pet. 351; D'Wolf v. Rabaud, 1 Pet. 476; Van Rensselaer v. Kearney, 11 How. 297; Tioga R. Co. v. Blossburg & C. R. Co., 20 Wall. 137; Townsend v. Todd, 91 U. S. 452; Scipio v. Wright, 101 U. S. 665; Smyth v. Ames, 169 U. S. 466.

By the law of Illinois, at the time this mortgage was executed, the fee of the land was conveyed by the mortgagor to the trustee, Johnson, for the use of Mrs. Bradley. The condition