The opinion of the Court was delivered by
Me. Justice Feasee.On examining the admitted facts and the evidence contained in the “ Case ” before this Court, it appears that this appellant, Mary E. Walker, was seized of the tract of land described in the complaint in this case; that by proper conveyances the land was conveyed to A. W. Cum*334mings as security for a debt due to him; that when this debt was paid, except the sum of $49.00, by consent of Mary E. Walker, Cummings conveyed the land to Joseph Walker & •Co., a firm consisting of Joseph Walker, the plaintiff, and J. G-. Goodlett (the consideration being stated in the deed at ■$149.00), who took title to the land as security for $49.00 advanced to Cummings, and for $100.00, either to be advanced ■or then due by W. H. Walker, the co-defendant. Some time after this Joseph Walker and James G. Goodlett gave to Mary E. Walker a written agreement to reconvey the land to her on the payment of $350.00 on January 1st, 1873; this $350.00 was the amount of a credit extended to Mary E. Walker and her husband, W. II. Walker, on the security of the title to this land; that this written agreement was delivered up to Joseph Walker & Co. by W. H. Walker, and there is no evidence of •any consent to its delivery by Mary E. Walker; the firm of Joseph Walker & Co. was dissolved on March 19th, 1873; on April 1st, 1873, James G. Goodlett assigned all his interest in the land to Joseph Walter, having previously sold to him his interest in the firm of Joseph Walker & Co.; about May 1,1873, C. E. Fleming bought what had been the interest of James G. Goodlett, and the business was carried on under the name and style ■of Walker & Fleming; large sums of money being due, as appears by the books, by Mary E. and W. H. Walker to the successive firms of Joseph Walker & Co., Joseph Walker and Walker & Fleming, Joseph Walker commenced this action to recover possession of this land from the defendants, who had always remained in possession of it; W. EL Walker, the husband, has never answered the complaint; Mary E. Walker answered the complaint, alleging that the title was held by plaintiff only as a mortgage to secure a debt, and that on December 31st, 1874, she had tendered the whole amount due, ■$293.00.
The plea of tender not having been followed up by an averment that appellant has always been and still is ready to pay it, or by a production of the money in court, cannot avail the appellant as a defence, even if the whole sum due had in fact been tendered as alleged. 2 Green Evid. § 600.
*335The case came on to be heard before his Honor Judge T. J. Mackey, and on the trial of certain issues of fact referred to them, the jury rendered a verdict: 1. That the deed under which plaintiff claimed “ was intended to operate as a mortgage.” 2. That Mary E. Walker did tender to plaintiff the whole amount of debt due by her to Joseph Walker & Co., intended to be secured by the mortgage.”
After this verdict was rendered, Judge Mackey made an or-; der appointing a Referee “ to take testimony and report ” what ■amcnmt is due Joseph Walker & Co. from the defendant, Mary E. Walker, at the time of the tender and subsequent thereto; and that he do further take testimony upon any special matter involving said accounts; that the Referee do report also the accounts due from W. H. Walker, and also what >amoimts were intended to Toe seewred Toy the mortgage, and that the said report, as well as evidence taken, be made subject to the findings of fact already made by the jury.
There are only two facts settled by the verdict of the jury: 1. 'That the deed was intended as a mortgage. 2. That the whole .amount due by Mary E. Walker had been tendered which was intended to be secured to Joseph Walker & Co. The verdict ■did not fix the amount due to Joseph Walker & Co. intended to be so secured, and did not settle the question whether there were any other amounts intended to be so secured. When the reference was held under this order the Referee rnled out all testimony as to accounts due to Joseph Walker after Groodlett had retired from the firm, and reported that the amount due ■Joseph Walker & Co. at the date of the dissolution, and intended to be secured by the mortgage, was $339.00.
To this report the plaintiff excepted, and upon the hearing before his Honor Judge Pressley, the report was recommitted to the Referee “ to take testimony and report the same as to amount of the account due to plaintiff after the dissolution of the firm, made by M. E. Walker and W. H. Walker, or either ■of them, and whether the same was intended to be secured by the mortgage, and if so how much thereof. It 'is further ordered that the Referee make separate statements of the amounts ■of the accounts made with Joseph Walker & Co., Joseph *336Walker, successor to Joseph Walker & Co., and with Walker & Fleming, successors to Joseph Walker, by the defendants, or either of them.” It will be seen that this order brings back the investigation to an inquiry as to the matters contemplated by the original order of Judge Mackey, as expressed in the words “ and also what amounts were intended to be secured by the mortgage.”
A reference was held under this order, and the Referee made a second report of the amounts due, after allowing all proper credits, as follows: To Joseph Walker & Co., $339.75; to Joseph Walker, $304.66; to Walker & Fleming, $287.88. The Referee also reported that these two latter amounts were intended to be secured by mortgage. The verdict of the jury had settled it as a fact that the amount due Joseph Walker & Co. was intended to be so secured, but did not fix the amount.
In the verdict of the jury the word “ intended ” is used as expressing such mutual intention as to make the deed a mortgage, and to make that mortgage a security for certain debts therein named, and it is but fair to hold that the word is used by the Referee in the same sense, expressing such mutual intention as is necessary for a contract, when he says that the amounts due Joseph Walker and Walker & Fleming were intended to be secured by the mortgage.
’This report came before his Honor Judge Thomson on exceptions. The exceptions were overruled, and the report confirmed and made the judgment of the' Court, . . . and it was ordered “ that the plaintiff have leave to enter judgment of foreclosure for the several sums of money reported as due him, by Mr. Nicholls, the Referee. From this judgment Mary E. Walker has appealed to this Court on various grounds.
The 1st, 3d and 7th exceptions raise questions as to the scope of the first order of reference, made by Judge Mackey. Whatever may have been the relevancy or value of the facts when ascertained, it was certainly within the scope of the words used in that order — “ also what amounts were intended to be secured by the mortgage.” The Referee should have taken the testimony and reported the amounts due to Joseph Walker and to Walker & Fleming, if, as reported by the Referee to the *337Court, these amounts were intended to be secured by the mortgage. These exceptions, therefore, must be overruled.
The 4th exception is that the Referee erred in finding that the whole amount intended to be secured by the mortgage is $339.75. There is some misapprehension of the fact in this, as such does not seem to be the Referee’s report.
The 5th, 8th, 11th, 12th, 13th, 14th,. 15th, 16th exceptions raise the main issues in this case. The Referee has found as a fact, and in his report the Circuit Judge has concurred, that all these accounts, including the amounts due Joseph Walker & Co., Joseph Walker and Walker & Fleming, were intended to be secured by this mortgage. These exceptions raise the issues : 1st, Whether in fact it was intended by these parties, viz., Mary E. Walker, and the successive firm of Joseph Walker & Co., Joseph Walker, and Walker & Fleming, that these amounts should be secured by the mortgage; and 2d, Whether the fact, if established, authorizes in this case a judgment of foreclosure and sale of the land for the payment of these debts.
By the tender, the appellant admits the liability of the land for at least $293.00 to Joseph Walker & Co. It is true that as to the accounts due to Joseph Walker and Walker &. Fleming there is no written agreement. The appellant cannot complain of the want of written evidence, because it is by parol testimony that she can show that a deed absolute on its face is only a mortgage. If it can be shown to be a mortgage, then certainly the whole condition of the mortgage can be shown in the same way by parol evidence.
It is contended, however, that while this is true as to the original condition of the mortgage, it is not true as to conditions superadded by the parties afterwards. It is very distinctly laid down that while as to third parties a mortgage cannot be extended to cover new debts, yet this may be done by parol amongst the parties themselves, even when the mortgage is one created in the usual way by deed. See Jones Mort. § 357, where it is said that while such an agreement cannot be set up against a mortgagor at law, it can be in equity. The form in which the question comes up is now of no consequence.
*338In this case there was no distinct agreement in words between the parties. The evidence of an implied contract is very-strong. The husband is said to be insolvent and unreliable; no credit could be obtained originally until this security was given; most of the articles were for family use or other necessaries. Soon after the dissolution of the firm of Walker & Co., Joseph Walker received a letter from the appellant requesting him to pay for a horse, and inquiring for fertilizers and groceries. This was April 25th, 1873, and within four days we find these very articles charged in the account amounting to over $200, and this account ran on for several years charged against Mary E. and William H. Walker, husband and wife, payments made on it, and not one word of complaint that any of the articles were purchased by W. EL Walker; and the parties commenced their dealings on this security only. This court thinks that the inference is a fair one that it was the intention of these parties, a mutual intention, such as constitutes an agreement, that these debts should be secured by the mortgage. If any other two parties had lived together and in common as these two, Mary E. Walker and her husband W. EL Walker, and had dealt in this way, we do not think there would be any reasonable objection to an inference that there was an implied contract. The husband is not entitled, as a matter of course, to be held out as the agent of the wife, but when she interferes in the business, as she has done in this case, and in fact allows him to act for her, she is as much bound as any one else who constitutes an agent. This court holds therefore that there was an implied contract to extend this security to cover the debts of Joseph Walker and Walker & Fleming, and that such implied agreement is valid and binding on the parties.
There is no valid objection to this agreement made with successive firms which assumed in this matter the obligations and acquired the rights of Joseph Walker & Co. Lawrence v. Tucker, 23 How. (U. S.) 27. The rights of the creditors in this case depend on this agreement and not on any right, as in Walling v. Aiken, McM. Eq. 1, of a mortgagee to demand in a suit to redeem any amounts outside of the mortgage debt which may be due him. This right can exist only between *339parties one of whom can plead discount. Joseph Walker stands in this case in the place of Joseph Walker & Co. as to the title and in the absence of any agreement, there could be no set off between Mary E. Walker in this suit and the other two firms.'
The 2nd, 9th, 18th, 19th, 20th, 21st, 22nd, and 24th exceptions are too general and do not bring the mind of the court to any point in which its judgment is sought.
The 6th exception is not well taken because the referee had no testimony before him on which he could have made a statement of the amounts purchased by the defendants separately, and it would not have been important if he could have done so.
As to the 10th exception, the Court holds that it is not important to consider the question raised if the judgment of the Circuit Court is sustained on other grounds, but the views of the Court have been indicated on the point raised by it.
As to the llth exception, it is a matter of discretion in equity cases in the Circuit Judge as to who shall pay the costs, and as to this there has been no order. This court cannot direct the Circuit Judge to make an order for costs in such cases.
Exception 23d. A judgment of foreclosure is usually attended with an order of sale and for the payment of the proceeds, but these are merely administrative orders and can be made at any time hereafter.
It is therefore ordered and adjudged that the exceptions be overruled, the. judgment of the Circuit Court affirmed, and the appeal dismissed.