Opinion of the Court. with the nominal agent of his brother Elisha, the exact moment for the sale, and when it is completed, takes the officer and rides two days in order to procure a receipt from his brother Edward in favor of his brother Elisha, and make everything fair on the face of the papers. If the money for the purchase was really paid by Elisha to the officer, why did Frederick start on Sunday for Oregon, in an adjoining county, and follow Elisha W. Dutcher to Polo, in order to procure his receipt? If the money was paid by Pitts as agent for Elisha W. Dutcher, it could have been proven by him, but he was not called as a witness, and no explanation is offered of his absence. The only mode of reconciling the evidence of the officer that, according to his recollection, he received no money, with that of Edward F. Dutcher, that he received at Polo, from the officer, the damages and interest, is by the theory that Frederick R. Dutcher paid the money at Polo in the name of the officer, and in order to give color to a transaction that he had been at so much pains to carry through. But in view of all the circumstances, we are irresistibly led to one of two conclusions: either Frederick R. Dutcher, to whom Elisha W. had lent the use of his name, was the real party in this transaction, and for whose benefit the property was to be acquired at a small fraction of its value through this judicial sale, or that he and Elisha W. Dutcher were acting in concert, with the view of accomplishing the same purpose for their common benefit, the actual management of the matter being intrusted to Frederick. In either event, Elisha W. Dutcher would not only be chargeable with what occurred at the sale in the presence of his avowed agent Pitts, showing that the sale was not fairly conducted, but with the false statements of Frederick to the attorney of Mrs. Leake for the purpose of preventing his presence at the sale. That Pitts and Frederick R. Dutcher were acting in concert, is evident from the testimony of the officer, that they were together prior to the sale, and that he received his instructions from them jointly as to the time and manner of holding the sale. The false statements to the attorney of Mrs. Leake, and the means taken at the sale to prevent Opinion of the Court. competition, considered in connection with the gross inade quacy of the price, are sufficient reasons for setting the sale aside. It is urged, however, by the counsel for appellants, that the bill does not charge the fraud in the sale with sufficient distinctness and particularity to justify the consideration of the proof as to irregularities in the sale. It is true there are no allegations in the bill which would justify the court in setting aside the sale on the ground of these irregularities alone, admitting them to be, in themselves, a sufficient cause. It must also be admitted that the averments in the bill in regard to fraud in the sale are very loose and general, and, so far as that portion of the bill goes, would have been liable to a demurrer, or perhaps the evidence offered in their support, if objected to, should have been excluded until the complainants had amended their bill. But there was neither demurrer nor objection to the evidence. The bill does charge that Edward F. Dutcher, Elisha W. Dutcher and Frederick R. Dutcher, combining and confederating together to injure the complainants, procured the execution to be issued; that Elisha W. Dutcher did not pay the amount of his bid to the sheriff; that his name was used in the transaction for the purpose of placing the title in a third person and an apparently innocent purchaser, and that the pretense of Elisha W. Dutcher to be a bona fide purchaser for a valuable consideration is untrue. The bill also charges the inadequacy of the consideration. The substance of these charges is, that Elisha W. Dutcher was not a purchaser in good faith for a valuable consideration, but was acting collusively with Frederick R. and Elisha W. Dutcher to defraud the complainants. The facts upon which we have commented do, in our opinion, establish that charge. If objected to on the hearing, all these facts would not have been admissible in evidence without an amendment of the bill charging them more specifically. But they were not objected to, and we do not deem it proper to reverse the decree and remand the cause merely that an amendment may be made which would have been made at the proper time if objection had been made to the evidence. The decree must be affirmed. Decree affirmed. Syllabus. FRANKLIN PARMELEE et al. v. DANIEL LAWRENCE. 1. RELEASE-of one of several obligors. Where a release is given to one of several obligors, which is to operate as an absolute discharge of such obligor, it will also operate to release his co-obligors, notwithstanding the instrument contains an express provision that such co-obligors shall not thereby be released. 2. SAME-ignorance of its legal effect. The mere fact that when a release is executed the parties are ignorant that its legal effect will be to discharge the co-obligors, will not prevent its so operating, if executed and delivered unconditionally and without reference to its bearing upon other parties. 3. But it seems, if such an instrument provides, in terms, that the obligor seeking to obtain the release shall remain subject to the right of contribution in favor of his co-obligors in case they are compelled to pay more than their share of the claim, then the provision in the release that it shall not operate to discharge such co-obligors may be given effect according to its terms. 4. SAME-intention of the parties. But a release, like every other written instrument, must be so construed as to carry out the intention of the parties, as sought in the language of the instrument itself, when read in the light of the circumstances which surrounded the transaction. 5. So, where A receives a contract from B, knowing that it was designed by B to receive a certain interpretation and only to be used for a specific purpose, A has no right to give it a different interpretation, or to use it for a different purpose, although the purpose to which it may be diverted should be consistent with the language of the instrument itself. 6. So where an obligee executes to one of several obligors an instrument which, in form, is a release of such obligor, with a provision that it is not to operate as a discharge of his co-obligors, while the legal effect of the words used in the contract would be to release all, yet, if, when read in the light of the circumstances attending its execution, it appear that the party making the contract did not intend it to have that effect, and the party receiving the contract, knowing such intent, pretends that it will not operate to discharge the co-obligors, who were, in terms, expressly excluded from the operation of the release, then the instrument will be construed merely as a covenant not to sue, not operating as a technical release, but leaving the co-obligors still liable, and entitled to contribution from the party seeking the release. 7. MORTGAGE-what constitutes. An absolute conveyance of property for money borrowed, with covenants back as a part of the same transaction, that upon the payment of the debt so created such property shall be reconveyed, amounts merely to a loan of money and a mortgage to secure its payment. 44 405 31a 407 44 405 34a 198 44 405 143 367 44 405 148 485 42a 354 44 405 83a 492 44 405 s78 US 36 185 233 44 405 95a 4340 Opinion of the Court. 8. COVENANT TO RECONVEY - nature of title. And a covenant by the mortgagee to reconvey the premises by "good and sufficient deed," will be construed as a covenant to pass the same title conferred by the original conveyance. 9. INTEREST-of recovery when contract is usurious. After a transaction has been closed, usurious interest cannot be recovered back. But if the transaction is yet open and the debt unpaid, a court of chancery, in stating the account, will allow as a credit upon the principal whatever usurious interest may have been paid. 10. SAME-construction of act of 1867. The act of 1867, which provides that in suits upon written contracts made while the interest law of 1849 was in force, and before that of 1857 was passed, no portion of the usurious interest which the debtor may have voluntarily paid shall be deducted from the principal, can be given only a prospective operation in that regard, and cannot apply to usurious interest paid before its passage, because, as to such interest, under the law as it then existed, there was a vested right to have it deducted from the principal. 11. But that portion of the act of 1867 which takes away the three-fold forfeiture given by the act of 1845, may operate upon contracts made before its passage, as the law recognizes no vested right in a penalty which the legisla ture may not take away. APPEAL from the Superior Court of the city of Chicago. The facts are sufficiently stated in the opinion of the court. Messrs. MCALLISTER, JEWETT & JACKSON, C. BECKWITH, SIDNEY SMITH and Messrs. GOODRICH, FARWELL & SMITH, for the appellants. Mr. CHARLES A. GREGORY and Mr. ISAAC N. ARNOLD, for the appellee. Mr. JUSTICE LAWRENCE delivered the opinion of the Court On the 15th of September, 1856, Parmelee, Gage, Johnson and Bigelow, partners, doing business in Chicago under the name of F. Parmelee & Co., borrowed of Daniel Lawrence, of Medford, Massachusetts, the sum of $50,000. To secure its payment in five annual installments, with ten per cent interest, they conveyed to Lawrence certain real estate situate in the city of Chicago, a part of which was held by Opinion of the Court. pur them under a long lease, and a part under a contract of chase. Their deed to Lawrence refers to these instruments, and binds the grantors to pay the rent and the unpaid purchase money, and the grantors covenant that the premises are free from all incumbrances, "except the said lease and articles of agreement." The deed also contains a covenant for quiet enjoyment. Contemporaneously with the execution of this deed, a contract was executed by and between the same parties which was, in forin, a contract of sale for the same premises, and by the provisions of which Parmelee & Co. agreed to pay the $50,000 in five annual installments, with ten per cent interest, and Lawrence covenanted, upon such payment, to convey to them the premises free from all incumbrances, by good and sufficient deed. Parmelee & Co. also executed a separate instrument by which they agreed to pay an additional interest of two per cent per annum as long as the debt should remain unpaid. They paid the interest at twelve per cent to April, 1861, but none of the principal. From that date they ceased to pay. On the 4th of August, 1864, Parmelee, Gage, and Bigelow, filed their bill in chancery against Lawrence, in which, concealing the true nature of the transaction, claiming that they were purchasers from Lawrence, and suppressing the fact that they had conveyed to him, they set out the contract, aver their readiness to pay, but also aver that Lawrence was unable to convey to them a perfect title according to his covenants in the contract, as he had not the fee in the premises, but was nevertheless threatening to take legal steps to collect the money and to evict them from the premises. The bill was sworn to by one of the complainants, and prayed an injunction, which was granted. Johnson did not join in this bill, as the other partners had purchased his interest. Lawrence answered, and also filed a cross-bill, setting forth the true nature of the transaction, bringing before the court the deed from Parmelee and his co-complainants to him, and claiming that the entire transaction amounted merely to a loan of money and a mortgage to secure its payment. He prayed a decree that the debt be paid or the premises sold. |