| Mo. | Jul 15, 1872
delivered the opinion of the court.
The real question underlying this case- is whether, after the sale of the mortgaged, premises,, the mortgagor, who .is the plaintiff ..here, still retained the right of redemption. The principle is,.I think, well established that when a power, of sale is contained in a mortgage, and a sale made by virtue of such power, and the mortgagee becomes the .purchaser, the,equity of, redemption still subsists and attaches to.the property in. favor of lh.e mortgagor. And if at, such sale the mortgagee .acquires the title through the agency of a third person, the .title, will not be-in anywise altered, and the rights .of the mortgagor will remain the same. It is not disputed that parties have the right to agree upon the terms of a power of sale of mortgaged- premises, and where the sale takes place upon such terms as the. parties were competent to agree upon, and is faithfully and fairly executed, courts will not interfere. (Dobson v. Racey, 4 Seld. 216; Elliott v. Wood, 45
Now, conceding that the understanding was that McNees was to redeem within one year from the date of the sale, will his neglect to do so cause a forfeiture of his rights? Upon the testimony disclosed here, I think not. Where a party claiming an interest in land lies by for a great number of years, and sees it enhanced in value and improved by the labor and expenditure of others, the courts will not listen favorably to his demands. But it is always proper to consider the situation of the parties and all the surrounding circumstances. Shortly after the sale was made, McNees and-Swaney both left Kansas City on account of the war then raging. It is obvious that neither party had an idea at that time that anything could be done with the property. Swaney advised McNees not to try to sell the property to pay the debt, as he could not get anything like its value, and at the same time made assurances that the land was his, and that all he wanted was his money. But before the expiration of the year Swaney deeded this land, together with others, to one Collins, of Indiana; he .alleges, however, that the deed was not placed on record till after .the year had expired. This deed he says was voluntary, and made “ to protect the property from the United States army.” .When the title was vested in Collins, McNees could not proceed, and Swaney in a short time left his home and stayed in the . territories until 1865. After his return home Collins conveyed the property back to him, and at the first term of court thereafter this suit was brought.
Under all these circumstances there was no such want óf diligence as would work a forfeiture of McNees’ rights on account •of lapse of time. We do not .think it was competent to bar the equity tt£ .redemption by the restriction of one year, and the evi
The relation pi mortgagor and mortgagee existed at the time of the sale and the execution of the deed, and the transaction must be viewed with distrust and scrutinized with rigor before it can be allowed that the equity of redemption was extinguished and converted into an absolute title. In such cases the leaning of the courts is always in favor of holding that the mortgage continues. That McNees did not apprehend that he was in any danger of losing his property, and that he was lulled into security by the representations of Swaney, I think is abundantly shown by the testimony.
Upon the whole case as made by the bill of exceptions, we áre still at liberty to hold the equity of redemption as continuing, and to decide that the sale and conveyance did not vest the absolute title in the mortgagee. The judgment must therefore be reversed and the cause remanded, with directions to the court below to enter up a decree in conformity with the stated account agreed upon by the parties.