delivered the opinion of the Court:
A careful comparison of this testimony leads us to believe that the substance of the bargain between McNair and Smith about the assignment of the certificate was, that on payment of a premium of-$100, McNair-agreed to hold the certificate for Smith, and that, at any time before the expiration of the time which the purchaser had by law to hold the certificate for redemption, McNair was to assign the certificate to Smith upon the payment of the amount of the purchase money, and interest thereon at the rate of ten per cent per annum from the date of the purchase to the time of payment; and that if Smith failed to pay the amount of the redemption money within that time, he should lose all benefit from the payment of the $100.
In connection with this bargain it is very probable there was conversation in which McNair suggested to Smith that it was to his interest to pay it soon so as to stop the interest, and in which Smith asserted his ability to furnish the money at any time, and his intention to do so in a few days ; and it is probably true that afterwards he stated that he had not been able to raise the money as soon as he expected, but would raise this redemption money within the time when the property, by law, would -be past redemption.
This seems plainly to be the fair inference from this testimony — when carefully scrutinized — upon the hypothesis that the witnesses all intend to tell the truth. This hypothesis reconciles and leaves to stand as true the substance of all the testimony given -r- making allowance for slight inaccuracies in the mode of stating the same. McNair does not deny directly what Smith states as to the conversation about the time within which he was bound by their bargain to pay the amount of the redemption money. He says, it is true, that “he was to come in a day or two to obtain the assignment of the certificate.” That, no doubt, was true in the sense that Smith said that he expected. to do so. He does not deny that he told Smith there was no hurry, etc. If the expression used between them, as to the utmost limit of rime contemplated, was “within the time of redemption,” the fair construction of those words would allow the full fifteen months from the sale, for they both agree that it was not redemption which was the subject matter of the trad3, but an assignment of the certificate. If the balance of the weight of the evidence were but slight in support of this hypothesis, the court should be inclined to adopt it in view of the injustice which would otherwise be accomplished.
When, therefore, Christopher C. Smith, about the 15th or 16th of March, 1875, tendered to McNair the amount of $3,400, he offered to comply with his bargain in apt time, and complainants, upon the payment of that sum, are entitled'to have transferred to them, or some one in trust for them, all the title which Osborne acquired by the master’s deed.
Equity, however, will not permit the complainants, even if they desire so to do, to cut off by this purchase or proceeding the rights of Mrs. Crosby. By the will she. has a life estate in one-third of the lands. This mortgage debt was an incumbrance upon the whole estate in the land. Justice demands that the present value of the interest of Mrs. Crosby, and the present value of the interests of each of the complainants who have any beneficial interest in the property under the will, should be ascertained, and that each should be allowed to protect his or her interest by contributing his or her share of the purchase money to be paid by Christopher C. Smith for this title (embracing the §100 paid to McNair). Mrs. Crosby (or her assignee) is not bound to join in this purchase, but they should have the privilege of so doing. The decree must be reversed and the cause remanded to the circuit court to adjust the rights of the parties in accordance with these views. Such amendments of the pleadings should be allowed as may comport with the facts as here held, and as may be necessary for the protection of the rights of all parties. Mrs. Crosby (or her assignee, if she has made an absolute sale) should be allowed, if desired, to file a cross-bill asking to share the benefits of the purchase of this certificate upon paying her proper quota of the money; if parties other than those represented by Christopher C. Smith do not wish to share in this purchase upon the terms indicated, then complainants should have a decree granting to them, on payment of the $3,400, the full title conveyed to Osborne by the master in chancery, and should be put in possession under that title.
Decree reversed.