The question presented by the record in this caso is, were the transactions between these parties of such a character, in relation to these lands, as to operate as a security for the loan of money merely, and to constitute in effect, a mortgage of the lands.
The maxim of equity is, once a mortgage always a mortgage, and the true character of every conveyance of land, is open to inquiry and investigation, no matter what form the parties may have given the transaction. Ferguson v. Sutphen, 3 Gilm. R. 565 ; Miller et al. v. Thomas el al., 14 Ill. R. 428 ; Smith etal. v. Sacket et al., 15 Ill. R. 528 ; Williams v. Bishop et al., ib. 553; Davis et al. v. Hopkins, ib. 519.
The scope of the bill is, to establish the transaction between complainant and Cowing as a mortgage, notice of which, Bull, who is made defendant with Cowing, is alleged to have possessed, when he purchased of Cowing. The defendants were required to put in their answers under oath, and they both most emphatically deny the existence at any time, of any mortgage.
Full proof is required, in such cases, to countervail two sworn answers. The issue is one of fact, and we must determine it from the proofs submitted. They consist for the most part, of letters from Cowing to the complainant, written before and after •the patents were issued to Cowing for the lands, all which we •have examined with care.
It is insisted there are expressions in these letters, alluding to the terms of the original parol transaction of 1842, which determine it to be a loan, and the land taken in the name of Cowing as security, and that such should be the conclusion of the court thereon.
These letters do not purport to give the nature or character of that agreement, nor do any of the witnesses called to detail conversations with Cowing, attempt to state it. All that has been produced as to the terms, conditions and nature of this contract, consist of detatched parcels, incidentally stated in connection with other subjects, and they may all, with few exceptions, as well be referred to a sale as a loan and mortgage. Those exceptions are to be found in the letters of Cowing, of April 14,1847, and May 1, July 21, and October 4,1848.
In that of April 14, he- complains of cutting timber on the land—hopes plaintiff will “ act the fair man, pay the taxes and not cut the timber and sell it,” and says “ try to make arrangements to raise the money if you mean to ever redeem against I come. I have given up buying any more in that country.”
In the letter of May 1,1848, he refers to a promise of plaintiff to come to New York and pay him and Post off—informs him of his purchase of Post’s interest, and tells him he can have “ until the second day of January next to redeem in,”—hopes he will keep the taxes paid and not waste or sell timber, and that he shall have, if he does right, “ a good fat slice ” of the land. In that of July 21, he refers again to his cutting and selling timber, and complains that he had not explained the matter to him— speaks of a report that plaintiff had threatened to kill him, and asks why he would kill him “ for I have done you no injury—have given you all the time to redeem we agreed on,”—but says “ if I had not bought at the time I did, some one else would, and you would had no chance to redeem.” He then complains that he had had four years and done nothing—had not paid one cent, and the taxes were due—that he must have money and will sell, and reiterates the complaint of cutting and selling timber—says “ if you ever mean to pay me for that land, I want you to do it before the first day of September next, or ever after hold your peace.”
In the letter of Oct. 4, he inquires if he intends “ to redeem the Post tract of land,”—wants to know to whom the land is assessed for taxes, and if he means to pay the tax—desires him to state what he can depend on, and if he can’t redeem don’t let that hinder your coming down—says it is now over six years since he bought and has never received a cent from it, etc.
If we were obliged to treat expressions and phrases used in conversation or in letters, and the language of unprofessional men in their extensive intercourse and various negotiations, in a technical sense, we should often violate their true intent and meaning. These letters afford an instance in which expressions, if technically understood, would refer to a mortgage, but which it is very clear from the whole letter, its purport and object, the writer never intended should have such a meaning. The solitary word, redeem, is explained by the phrase in the same letters, that he had bought the land, but that, it was understood always, that the plaintiff should have it, in preference to all others, if he paid for it, and a time of payment is specified.
The term, redemption of land, can only apply, technically, when the land is held in pledge or mortgage, and is not descriptive of the acquisition of land by purchase, nor of the re-payment of a loan, whereby land in pledge is relieved from its liability for the loan.
We must endeavor in this case, as in all others, to arrive at the very truth, and the true intent of the parties unless prevented by some act of the party—here no estoppel interferes to shut out the truth. If we were guided alone by the light afforded by these passages in the several letters referred to, and by what Cowing said as to having purchased the land for the plaintiff, in the hearing of witnesses, we might possibly, arrive at the conclusion, that there was a mortgage; yet on a view of the whole case, as it really exists in the record, we find the most ■conclusive proof that the original transaction was a sale, and not a mortgage. The defendants most positively deny, and that under oath, which was required of them, the existence, at any time, of any mortgage. These sworn answers cannot be overcome by resorting to a technical meaning of certain phrases in the letters and conversations of Cowing, especially when other portions of the same letters most clearly show that he claimed the land as absolute owner, and as such, makes frequent complaint of acts of waste in cutting and selling timber by one long indulged with extended opportunities of paying for it, and becoming himself the owner.
Any doubt that might rest upon the mind, arising from these passages and expressions in his letters and conversations, is completely removed by the written agreement of January 3, 1849. In that no intention to mortgage, or any recognition of such having been the nature of the original agreement between the parties, can be discovered. On the contrary, the parties have set forth by way of recital, as clearly as language can express it, that the first transaction was a sale, and not a loan and mortgage. The bill of complaint insists upon this agreement as a valid and subsisting agreement, and claims to have it enforced as such. The agreement recites, “ That said Cowing is the owner of one thousand five hundred and twenty acres of land in township number forty-four north, of range eleven east in Lake county in the State of Illinois, now in possession of said Wynkoop under a forfeited contract for the purchase of the same.” There is no suggestion in the bill that there was any fraud or circumvention used in drawing, or executing this agreement, and for anything alleged or proved, it fairly and fully expresses the intention of the parties. We must regard it as their deliberate act, and as expressing truly their meaning. In it reference is made to the real character and nature of the original transaction, and the then condition and position of the parties under it, as being that of “ a forfeited contract for the purchase of the same.” The parties have, by this recital shown an intention to declare by that instrument, the nature and character of the former transaction, and have so declared it, in the recital. It is done, too, in language not susceptible of two meanings, and clearly shows that the first contract was one of purchase and not of loan. A mortgage is not, in any sense, common or technical, a purchase, and language cannot be so forced as to make this to mean a loan or a mortgage. Nor is there in any part of this instrument any language used or intent shown, repugnant to this recital, or importing, in the smallest degree, any other or different fact.
If this agreement is to be regarded—and it is referred to and made part of the bill as an exhibit—it is admitted by the answer, and offered in evidence by the plaintiff—it must be conclusive upon the issue of fact, whether the parol agreement of 1842, was a loan secured by taking the title in fee, direct from the United States to Cowing, in the nature of a mortgage as between Cowing and the plaintiff, or whether it was a sale by Cowing to the plaintiff. We cannot but regard it as a sale, and this conclusion seems perfectly consistent, with all the testimony, whether by letters of Cowing’s or by witnesses sworn in the cause. But we might go further and say, even if the evidence was clear, that a loan and mortgage had been made in 1842, that agreement was merged in the agreement of January 3, 1849. If not so, then this last agreement must be treated as void because of its repugnance to the first, for no court could hold it valid to secure the mortgagor the extended credit provided in it, and at the same time relieve him from all its effect upon his own right and interests.
Although parties may not at the same time, and by the same instrument, stipulate for converting a loan and mortgage into an absolute purchase upon the happening of a subsequent event, yet it is also true, that a subsequent bona fide and fair agreement for the purchase and extinguishment of the equity of redemption for a valuable consideration, will be sustained, and such this appears to have been. The plaintiff, has all along, treated the first transaction as a mortgage, and has set it up and insists upon all his rights under it. But he has mistaken the true character of the last agreement. As the first was a mortgage, as he insists, so also he assumes this last agreement is in the nature of a security for the debt and must therefore partake of the original transaction. This is so, as a principle, for the unrestricted-right of redemption will be extended to transactions between the parties, in the nature of security for the debt, subsequent to the original mortgage. 1 Hilliard on Mortgages, 48, sec. 18; Bloodgood v. Zeily, 2 Caines’ Cases in Error, 124. But it is of no avail to speculate on this topic, for we have already expressed the opinion, that the whole evidence shows the first transaction was a sale, and we look to the recitals of the last agreement to ascertain the real terms and conditions and true character of the first. Both parties are estopped by the recitals in it, and must be bound by their own admissions of the facts stated in it. They must be taken to be true, else, the agreement would not have been executed. 1 Greenl. Ev., sec. 23; Crisman et al. v. Matthews, 1 Scam. R. 148; Cowen v. Jackson et al., 4 Peters, 85.
Although it be true, that courts will not be estopped from looking into all the facts and circumstances, by a deed absolute on its face, to ascertain whether a loan of and security for money was really intended, yet if there be no fraud, or circumvention in procuring it,-parties must be bound by, and be estopped from averring anything against their own deliberate recitals, admis sions and agreements, especially when such averments would prejudice and work injury to others who have acted in good faith upon the existing or supposed state of facts, in such a manner as would produce wrong and injury to be now overturned.
Such would be the condition of both Cowing and Bull.
Cowing forbore to assert his rights, during the long credit given, and when he did assert them, he did it upon terms of being rid of the agreement, by making time in its performance of its essence. Bull purchased upon the faith of the existing facts, rights and powers, as recited and provided in the agreement of January 3,1849, and has paid his money relying upon their truth and binding obligation upon the parties to the instrument.
To allow the plaintiff to avail of the time and terms of that agreement, and on failure to comply with its provisions, and after an innocent party had purchased in good faith and paid his money relying upon the plaintiff’s own written admissions, now to avoid them, or construe them into a mere defeasance, would enable him to perpetrate a fraud upon both defendants.
Admitting in its fullest legal extent, the doctrine of notice of all plaintiff’s equities, as properly chargeable upon Bull, yet those equities must be limited to plaintiff’s rights as fixed by the agreement of January 3, 1849, and we cannot apply the doctrine of notice, simply from possession in its general sense, and send Bull to the plaintiff to make ipquiry, for that doctrine cannot apply where possession is declared to be under a written instrument. The instrument itself explains the possession, and it is no more open to contradiction or explanation, than any other obligation contained in it. What does this instrument tell Mr. Bull and all others ? In the second article it is declared—'
2. “ The said Wynkoop hereby surrenders to the said Cowing, the actual possession of the said lands and every part thereof, and acknowledges himself to occupy the same as a tenant at will of the said Cowing and liable to be removed from such occupancy at the will of said Cowing.”
Bull being notified of this agreement, as fixing and controlling the rights of both parties, and the condition and character of the estate, took the land subject to all the equities of the plaintiff as they existed and appeared under that agreement, and he cannot now be made to yield to a state of facts wholly inconsistent with the provisions of this agreement, and depending too, upon parol proof to show them.
We cannot imagine a case, wherein the doctrine of estoppel, was more necessary to protect the innocent, even if the truth was, as is alleged, that the original agreement was a mortgage, for if it were so, it was by parol only, and nothing existing but the plaintiff’s possession to operate as notice to put incumbrancers and purchasers upon inquiry. When therefore, such a mortgagor deliberately enters into a written agreement with his mortgagee, in which he recites that his possession was under a forfeited contract to purchase—that he had surrendered the possession and then held as a tenant at will with a right to sell within a limited period so much of the land as would pay a certain sum, and thereby become owner of the residue if any, we cannot hesitate to apply the doctrine of estoppel in all its cogency, for the protection of a purchaser from the alleged mortgagee, unless the mortgagor shall show, by incontestible proof, that there was a mortgage in fact, and not a sale, and that such purchaser had actual notice of it, and not merely constructive, by such possession.
Finding then, no evidence of a mortgage, or previous mortgage relation between the plaintiff and Cowing in that agreement, nor anything squinting towards it, but on the contrary, evidence quite conclusive that both transactions amounted to a sale of the lands, all the equities are clearly with the defendant Bull.
The essential fact, that of the existence of a mortgage being wanting, we might dismiss the case, without comment upon the question of performance of the agreement in its true spirit, but as the proofs were taken and argument and authorities adduced upon this question, we will notice the evidence to that point.
Treating the agreement of January 3,1849, as a contract of purchase—the most favorable view for the plaintiff—we find that the time of performance is made of the essence of the contract, and is one of the most essential conditions on which the rights of the plaintiff depend.
Parties may make the time for the performance, one of the conditions of the contract, and when they do, courts of equity will not relieve a party from default, where the other party has not waived it or acquiesced in it. Smith v. Brown, 5 Gilm. R. 314 ; Glover v. Fisher, 11 Ill. R. 673 ; Kemp v. Humphreys, 13 ib. 573; Chrisman v. Miller, ante, 227.
They can annex their own condition to their deeds or contracts, so that they be not against the policy of the law. A condition in a deed may be annexed to every species of estate and interest in real property—to an estate in fee, in tail, for life or years, in any lands or tenements. 2 Cruise’s Dig., Title 13, chap. 1, sec. 9; 1 Hilliard on Real Estate, chap. 27, sec. 11. This principle is not questioned.
The condition in this agreement, reserved the right in the vendor to sell and dispose of one-third of the lands, after the first day of June, 1849, and the residue during the year 1850, if the plaintiff did not sell enough to pay the consideration agreed on by the first named day ; and there was this proviso, that Cowing would not exercise such right during either year, if the plaintiff should proceed with reasonable diligence to make sales. Admitting that this proviso qualifies and restrains the reserved power, still, the phrase “ shall proceed with reasonable diligence in the sale of said lands,” must have a reasonable construction in order to carry out the intent, which was to make a sale, or raise the money in some way, to pay the agreed consideration. The agreement does not provide that the plaintiff may sell a part before the first of June, 1849, and the remainder afterwards, unless the restriction upon the power of sale reserved to Cowing is to be construed, as carrying that intent. We think it was a reservation rather, of a right in Cowing to make partial sales at different periods of time, to be exercised, on plaintiff’s inability to make a sale for the whole sum designed to be raised, before the first of June, 1849.
But giving it the largest sense in favor of the plaintiff, still he fails to bring himself within its provisions. It may be admitted that Cowing’s right was limited to one-third in 1849, and the power remained in the plaintiff to sell that third at any time before a sale should be effected by Cowing; and so during the year 1850, not only of that third, but of the residue, yet the plaintiff failed to make any such sale at any time, nor did he make a tender of money raised, no matter how, as a substitute.
Had the plaintiff made such a sale or sales, or tendered the money during the year 1850, he would then be in a position to raise the question he has raised upon the construction of this agreement.
But there is no real ground to contend, that the provisions of this agreement would render a sale made by Cowing in 1850, void or voidable at the instance of the plaintiff, although he had neither sold any part of the land, nor made a tender of any money in fulfillment of the agreement until June, 1851. Such a construction of the agreement, would be in disregard of the condition as to the time of performance, which qualified the plaintiff’s rights as a purchaser, and reserved the vendor’s right to rescind the contract by a resale of the premises. The sale was good as between Cowing and Bull, whether made before or after June 1st, 1849, and it must also be good as between the plaintiff and the defendants, unless the plaintiff can avoid it by showing a compliance on his part with the agreement.
This he cannot do without showing a tender of the consideration money within the time, as he has failed to show any sale, unless we construe the contract as suspending Cowing’s power by that kind of diligence set up here, consisting of inquiries after purchasers, and offering the lands to those known not to desire to purchase. Diligence of this kind, might suspend Cowing’s right to rescind by a resale, to an indefinite period. We apprehend the diligence contemplated by the parties, was a successful sale bearing solid fruit, and not unsuccessful efforts, and abortive attempts to make sales.
As to the tender, both defendants positively deny it. The plaintiff shows by one witness only, that he and his witness went to Bull in November, 1850, when he informed Bull that he had come to fulfill the contract, and offered him the first payment— then the first two payments, and finally, the full amount with interest. It is not stated that any money was exhibited, or, indeed, that he had any money to make good his offers, and if so, what kind of money, coin or currency.
The testimony of one witness uncorroborated, cannot prevail against a sworn answer, even if we could understand the offer as including a tender or actual exhibition of the money. A count of the money may not be necessary where the party absolutely refuses to receive it, or have anything to do with it. But all these may not dispense with the existing ability to make the payment, that is, the actual possession of the money, or having it within convenient reach.
The proof of tender in June, 1851, is equally insufficient and unsatisfactory. It was proved by one witness only, and not corroborated by a single circumstance. It was also too late. It is shown to have been on the 3rd of June, 1851, to Bull, and on the 4th of June to Cowing. Cowing admits an offer of paper money, but denies a tender of money, he objecting to anything but gold or silver coin. The plaintiff has offered no explanation or contradiction of this statement. Neither the proof of time, or kind of money is sufficient to sustain these acts as a tender in June, 1851.
The evidence of performance or readiness to perform by the plaintiff, is insufficient to entitle him to a decree for a specific performance, was that the scope of the bill, as he has shown neither a compliance with the terms of the agreement, nor proved a tender of the purchase money. A tender is stricti juris, (Buchenan v. Homey, 12 Ill. R. 336,) and the money must be in sight, and capable of immediate delivery, and the tender must be absolute, (2 Greenl. Ev., sec. 601—2—5,) unless the production of the money be dispensed with by the absolute refusal of the creditor to receive it. 3 Stark. Ev. 1067. Nor would it be in our power to give relief by a decree for a specific performance, on a bill framed solely upon the ground of a right of redemption as a mortgagor as this is.
The decree of the Circuit Court is affirmed.
Decree affirmed.