delivered the opinion of the Court :
The record and testimony in this cause are voluminous, and we have given it ample consideration, and from it have reached the conclusion, that the relation of these parties was, originally, that of mortgagor and mortgagee. Whether the written contract of March, 1862, changed that relation, to one of vendor and vendee, is wholly immaterial; for, in the first position, there was a right of redemption, and, in the other, the right of appellee to call upon appellant to perform specifically his contract of that date, as time was not, by the contract, made its essence, and the proof is, that the appellee offered to perform, in a few days after the note matured, hence, he was not chargeable with laches.
As to the question of tender, a formal one was not necessary, as appellant declared he would take nothing but gold or silver. Wynkoop v. Cowing et al., 21 Ill. 588. The parol evidence of what occurred at the time the Eatekins went to appellant’s house to pay the note in legal tender notes, though inadmissible to establish a new contract, was competent for the purpose of showing that appellant waived a formal tender, and waived strict performance, even if "time had been of the essence of the contract.
Appellant refusing, then, to accept any thing but gold and silver in payment, such refusal gave appellee the right at once to bring his bill. The allegations of the bill are substantially proved. We see no error in the refusal of the court to set aside the decree rendered at March Term, 1863. A decree cannot be impeached by affidavits alone, unaccompanied by a bill filed for that specific purpose.
The decree must be affirmed. We are asked by the appellee to modify the decree here, by throwing out the usurious interest, which went to make up the total of the recovery.
This we cannot do, as appellee has filed no cross-bill asking affirmative relief, nor has he assigned any cross error. Under these circumstances, all that this court deems it proper now to do, is to affirm the decree.
Decree affirmed.