The premises in question were sold by virtue of an execution against the complainant, in favor of one Hill, and before the time had expired within which Wright had to redeem, he gave a warrant of attorney, upon which a judgment was confessed in favor of McNeely and Johnson, under which, as judgment creditors, they redeemed the premises from the sale which had been made under Hill’s execution. McNeely and Johnson then issued an execution upon their judgment, under which the premises were again offered for sale, when they bid the amount which they had paid for the redemption of the premises, and there being no higher bid, the premises were struck off to them, and they took a sheriff’s deed, according to the provisions of the statute. Subsequently, Johnson transferred his interest in the lands to McNeely.
This bill was filed by Wright, alleging these facts, and that McNeely agreed with him, at the time he applied for the warrant of attorney, that if he would execute it, they, McNeely and Johnson, would redeem the lands from the former sale, and hold them as security for the amount of their judgment, and the amount of redemption money which they should pay, and that they would allow the complainant to redeem the premises by paying the amount of the redemption money and the last judgment ; and that upon such redemption they would convey the premises to him. The bill avers an offer to pay the money, and that McNeely refused to receive it, or to make the conveyance, and that he threatens to issue execution and collect the full amount of the judgment in favor of himself and Johnson. The bill seeks a specific performance of the agreement, and to have 4he judgment declared satisfied.
The defendant in his answer denies the making of the agreement, but does not set up the statute of frauds, and he insists upon his right to collect the judgment.
We are satisfied that an agreement is proved, substantially as charged in the bill, but there is an insuperable 'objection to a decree for its specific performance. The complainant has totally failed in his attempt to prove a tender of the money; nor has he brought it into Court as he should have done, even if he had proved a tender. This was indispensable, for we consider this simply as an agreement for the conveyance of land. Doyle vs. Teas, 4 Scammon. Even should this transaction be considered in the nature of a mortgage, the complainant does not show himself entitled to the relief sought; for he not only fails to prove a tender of the money, but he does not expressly make a present offer to pay it; and there are no existing circumstances shown, superseding the necessity of such tender and offer, as was the case in Smith vs. Sackett, 5 Gilman, 534. But, as before remarked, without going into a discussion of the subject at length, we do not consider that, by the true construction of this agreement, it should be held to be a mortgage. Although no definite time was fixed by the agreement for the payment of the money, yet the law would require that it should be paid within a reasonable time. Here we think was an unreasonable delay, when all the circumstances are considered, even if a tender had been made, and the money brought into court at the time this bill was filed. The second sale took place in October, 1846, and this hill was not filed until February, 1848. The primary object of the defendant was to secure the debt due to himself and Johnson; in order to do which he was willing to make a considerable advance, to the manifest embarrassment of his mercantile business. The delay was longer than either party could have contemplated at the time, and we think beyond what should be tolerated.
It was insisted upon the argument that the agreement was entirely voluntary, and without any sufficient consideration. In this, however, we cannot concur. The warrant of attorney to confess the judgment was of itself a sufficient consideration to support the agreement. Besides, at the time the agreement was entered into, a considerable time remained within which Wright himself might have redeemed; and this he suffered to elapse without redeeming, as the agreement implied that he should.
We think, however, by a fair construction of the agreement, the defendant ought not to be allowed to collect the judgment of McNeely and Johnson against Wright; although it is not shown that the agreement stipulated, in express terms, that McNeely and Johnson should hid the amount of their judgment, besides the amount of the redemption money, upon the second sale ; yet that maybe fairly implied as one of its provisions. By the agreement, the complainant had the right to redeem from the second sale, by paying the amount of the judgment, as well as the first redemption. This shows that both parties intended that the last judgment should be satisfied by the last sale. The ¡reason which McNeely assigned for not bidding more than the amount paid to redeem from the sale to Hill, was, that he might save Wright the commissions to which the sheriff would have been entitled, upon the increased bid. This manifests an intention on the part of McNeely, at that time, to consider that as done which should have been done. It was the declared intention of McNeely to secure the last judgment; and as the complainant was to have the privilege of redeeming from the sale to him, this could only be done by either actually or equitably bidding the amount of that judgment. McNeely should not be allowed now to say that he did not bid as much as he agreed to, and that hence that judgment is not satisfied, and as the object of McNeely in omitting to bid the increased amount, was to save Wright from the payment of costs, the latter may be estopped from complaining that the increased bid was not actually made; but then he has a right to insist upon its being considered as done. Had Wright made out such a case as would authorize him to redeem under the agreement, McNeely would hardly be satisfied if we did not require him to pay the amount of this judgment, as well as of the original redemption money. If Wright had redeemed, or should now be allowed to redeem, by paying both amounts, this judgment would undoubtedly be satisfied, and the same consequences must follow where the defendant keeps the land, which he seems anxious to do, instead of receiving the money. It .may be said, that if Wright had redeemed under the agreement, he would thereby have paid the judgment; but that is not so, for the money would not have been paid under the obligation created by the judgment, but under the right existing in the agreement. It cannot be doubted that both parties expected, at the time the agreement was made, that Wright would redeem under it; especially when we remember that the' land was worth considerably more than double the amount which he was to pay in order to redeem; and this fact ought to reconcile McNeely to a decree restraining him from collecting that judgment.
So much of the decree of the Circuit Court as dismisses the the bill, is reversed, with costs ; and so much of said decree as adjudges each party to pay his own costs, is affirmed; and a decree will be entered here, declaring said judgment satisfied.
Decree modified.