By the Court,
Cole, J.
The only difficulty we have in affirming the decree, rendered in this cause, in the court below, arises from the variance between the case presented by the bill, and that established by the proofs on the hearing. The bill alleges *123that tbe Cramer contract was assigned to tbe appellant by G-eorge Sawin, tbe intestate of tbe appellee, while it appears from tbe evidence that it was assigned to bim by Wm. H. Byron & Co. It is true Byron and Campbell testify tbat tbis contract bad been assigned to them by Sawin to secure a debt be bad contracted witb them for iron, steel, &c., during tbe latter part of tbe year 1850, and first of 1851; and tbat wben tbey called upon Sawin for tbe payment of bis account, be referred them to Jones, who settled it; and then, at tbe direction and request of Sawin, tbey assigned tbe contract to Jones. But, notwithstanding tbe assignment was made to Jones, at tbe request, and under tbe direction of Sawin, it does not support tbe averment that it was made by Sawin himself, in order to secure to Jones tbe payment of what be owed bim, and also to procure from .Jones money to pay Cramer tbe balance due upon tbe contract. We cannot see, therefore, bow tbe appellee can avoid tbe necessity of amending bis bill in these material points, in order to make it conform to tbe case made out by his proofs.
We have no doubt but tbe decree is right upon tbe merits, and tbat tbe appellee must be permitted to redeem tbe property upon paying tbe appellant tbe amount due bim upon bis contract, and also tbe principal and interest advanced to Cramer. The appellant should undoubtedly be charged witb tbe rents of tbe property over and above tbe taxes and costs of necessary repairs since be has been in possession. We think it is very apparent, from tbe agreement set forth in tbe bill, and admitted by tbe answer, that the appellant was to become vested with tbe title to tbe property, and hold it to secure tbe payment of tbe amount Sawin owed bim. Tbe appellant denies tbat bis interest in tbe premises, by virtue of tbis agreement, was tbat of an equitable mortgagee; but tbe court cannot take bis interpretation as tbe correct one to be given to it. We must place upon it our own construction, and we entirely concur witb the Circuit Court as to its object and legal effect. Stress is laid upon tbe circumstance tbat Sawin did not comply witb tbe conditions of tbe agreement by paying Cramer what was due upon the original contract. If tbis were so, the court would relieve against tbe *124breach of tbe condition, as it appears it was designed as a mere security for tbe payment of tbe money mentioned in tbe contract, due or to become due tbe appellant. Holding tbe Cramer contract, be could, if be deemed it necessary for tbe protection of bis interests, discharge tbe amount due upon it, and take tbe title. The balance of tbe purchase money bad been due .on tbe Cramer contract nearly five months, when be took an assignment of it from William H„ Byron & Co., and entered into tbe agreement of tbe 26th of February, 1851. And why does be now insist upon tbe non-payment of this money to Cramer as a breach of tbe conditions, and a forfeiture of all rights of Sawin under tbe agreement ? He must have very well known that tbe money could not be paid by Sawin when it became due according to tbe literal terms of tbe agreement, for Sawin was already in default. Such, we think, could not have been tbe intention of tbe parlies.
Whether tbe amount due the appellant was tendered or not, before tbe filing of- tbe bill, would only affect tbe question of costs. If that was made to appear, tbe Circuit Court, in its discretion, could give costs against tbe complainant.
But tbe decree must be reversed, for the reason first assigned, and remanded for further proceedings.