The Chancellor.
I can see no absolute necessity in this case for reviving the suit in the name of the personal representative of Quackenbush, as well as of his heirs at law. If the original complainant was entitled to a decree for a conveyance of any part of the lands purchased under the agreements, it was such an equitable interestin real estate as would descend to his heirs at law under the provisions of the revised *343statutes j (1 R. S. 751, § 1, 21,27 ;) and they alone would have the right to revive the suit as,to any of the lands which remained unsold at the time of his death, in 1835. It is true the personal representative would be entitled to his share of the purchase money of lands which had then been sold, if the estate of Leonard had been more than reimbursed for the advances and expenditures. But the only effect of a neglect to revive the suit in the name of the representative who would be entitled to such surplus, is that no decree can be made against the appellants for the payment of any surplus. And if the defendants wished to have the personal representive before the court upon the taking of the account which was necessary to be taken for another purpose, so as to preclude him from questioning the correctness of that account afterwards, they should have proceeded to revive the suit against him ; instead of objecting to the revival by the heirs at law of that part of the suit in which they claimed an interest as such heirs. (See Hoffman v. Tredwell, 6 Paige’s Rep. 308.) If the heirs, as such, had no interest, the decree must of course be reversed and the bill dismissed as to them.
The principal and most important question in the case is whether all the interest of Quackenbush under the two agreements of 1814, and to the lands which had been purchased from the state as contemplated by those agreements, was extinguished by the sale to the executors and trustees of Leonard, by Williams, in 1832; or whether by virtue of such sale and assignment they merely acquired an interest, as the assignees of a mortgage, subject to the right of Quackenbush to redeem from them by paying the amount due upon the mortgage. Even if the conclusion at which the vice chancellor arrived upon that question was correct, however, which I shall presently consider, the decree appealed from is erroneous in some of the particulars referred to by the counsel upon the argument of this appeal.
By the terms of his conveyance to the executors, Williams sold, assigned and conveyed to them all his *344right, title and interest in the two agreements, and in and to the lands therein mentioned; with a covenant that he had full power to sell, assign and convey to them all the interest in such agreements, and in the lots therein mentioned, which was or which purported to be vested in him by the assignments from Quackenbush. It is clear, therefore, that if they did not acquire an absolute title to all the interest which Quackenbush had at the time he assigned to Williams, they would, if mere strangers, have acquired all the interest of Williams as a mortgagee. And the heirs of Quackenbush, in that case, upon a bill filed by him to redeem, must have paid to the appellants the whole amount due to Williams, upon the mortgage, at the time of his assignment thereof to them, in 1832, and the interest which had since accrued ; and not merely the $1000 which they paid to him for that assignment. But here the appellants are met by the rule of equity that a trustee buying in a debt or incumbrance against the estate held by him in trust, can only be allowed the amount actually paid therefor, with interest thereon. (Lewin’s Law of Trustees, 289. Darcy v. Hall, 1 Vern. 49.) I cannot, therefore, say that the decree is erroneous in not allowing the appellants the full amount due upon the mortgage.
From the minutes of the decree it is probable that the vice chancellor intended that the estate of Leonard should be reimbursed the interest as well as the purchase money advanced for the lands specified in each agreement, according to the agreements respectively ; that is, by computing simple interest on the advances as they were made from time to time, until the expiration of six years from the dates of the respective agreements, and by compounding the interest annually after that period. But as the decree is drawn up, it is doubtful whether such can be its construction; and if not, the decree is erroneous in this respect. Although, in an ordinary loan of money, courts do not give effect to a stipulation for the future compounding of interest which shall not be paid at the time agreed upon by the parties, there is no rule of law, or principle of public policy, *345which forbids its allowance in a case like the present. Here the parties enter into contracts respecting the purchase of lands for their mutual benefit; and providing for the distribution of such lands, or the proceeds thereof, among themselves, after the purchase money and other necessary expenses of the sales, &c. shall have been paid. It was as proper, therefore, for Leonard to insist upon a stipulation that if sufficient was not realized from the sales of land to refund the monies advanced by him with simple interest at the end of six years, he should be entitled to a further allowance, by way of compound interest, after that period, as it was that he should agree to allow Quackenbush all actual expenses he might incur in the disposition and sale of the lands for their common benefit. The principle of not giving effect to a stipulation for the compounding of future interest upon a debt does not arise from the usury laws. It is merely adopted as a rule of public policy, to prevent an accumulation of compound interest in favor of negligent creditors, who do not collect their interest when it becomes due ; which negligence is found, in the end, to be an injury rather than a benefit to the debtor. This principle of public policy, therefore, does not apply to contracts like those under consideration, where the person who advanced the whole money to purchase lands for the mutual benefit of himself and others had no right to demand payment of either interest or principal until the same could be realized out of the proceeds of the lands when sold.
The decree is also erroneous in declaring the complainants entitled to two thirds of the whole eighty-seven lots in the North River Head Tract, upon the estate of Leonard being reimbursed the monies advanced. By the terms of the agreement those lots were not to be divided equally between the parties; but Leonard was entitled to seven lots, to be drawn for by him in the first instance, and the remaining eighty, only, were to be divided.between him and Quackenbush and Webster after he had been remunerated for his advances out of the proceeds of the sales. A stipulation of that kind, in such an agreement, was not *346usurious. For it was not a contract for the loan or forbearance of money, either within the letter or the spirit of the usury laws ; there being no agreement on the part of Quackenbush or Webster to refund any part of the purchase money advanced by Leonard, if the lands should not sell for enough to reimburse him for the purchase money advanced, and interest thereon. Indeed the bill itself proceeds upon the ground that the estate of Leonard is entitled to remuneration out of the proceeds of the lands only, if I rightly understand it. And if it were otherwise, the decree should direct a sale of so much of the land as might be necessary to reimburse the estate for the advances, in case it should appear that it had not already been reimbursed out of the proceeds of the lands sold.
Again ; if the complainants were entitled to redeem the lands from the sale by Williams, provision should have been made in the decree for an allowance to the defendants, upon the taking of the account, for the monies paid by them for taxes upon the lands; as that was a necessary expenditure for the benefit of all parties interested in such lands, and should be first paid out of the proceeds of the lands sold by the executors and trustees of Leonard.
It does not appear to have been the intention of the parties to these agreements to give to Quackenbush the exclusive right to make sales of the lands which were to be purchased from the state, or to secure to him any right or benefit by that clause in which he agrees to transact all the business about the disposition and sale of the lands without any compensation, other than his actual expenses while engaged in that business. The object of that clause evidently was to secure to the other parties the right to such gratuitous services if they thought fit to require them. The executors of Leonard, therefore, had a right to waive a stipulation in the agreements which was inserted therein merely for the benefit of their testator, if they thought fit to perform the same services themselves, gratuitously. But as it appears by the answer that Quackenbush was ready and willing to perform the services, which he was to do gra*347tuitously, his interest in the land ought not to be charged with any expenditure for making sales of the land, during his life, with which it would not have been charged if he had negotiated the sales personally. And no allowance for expenses subsequent to his death should have been made, except such as were absolutely necessary to carry the agreements into effect, by selling so much of the land as was necessary to reimburse the estate of Leonard for his advances and interest, in addition to the taxes on the land. The necessary expences of surveys, conveyances, &c., which must have been a common charge upon the proceeds of the sales even if Quackenbush had negotiated the sales personally, should have been allowed to the appellants, in taking the accounts. They should also be allowed the additional expense, if any, which they have incurred since his death, in negotiating sales and collecting the purchase monies; so far as such sales may have been necessary to reimburse the estate, according to the spirit of the original agreements. And they ought not to have been charged for waste committed on the lands by purchasers, or for the irresponsibility of such purchasers, in cases where sales were made in the usual way of selling such lands, and to persons who at the time of the sales were apparently responsible. But if they sold lands below their fair value, in consequence of selling at improper times, or of their neglect to make the proper inquiries as to the real value of the lands sold, it was proper to charge "them with the true value.
The right of the complainants to redeem from the sale made by Williams, depends to a great degree upon the nature of the interest which Quackenbush was entitled to under the two agreements with Leonard and Webster. For if he had an equitable right to one third of the lands in both tracts, under the original agreements, and acquired a similar interest in another third of the North River Head Tract by the subsequent conveyance from Webster, subject only to the claim of Leonard’s estate for his portion of the original purchase money, then the executors, at the time of their purchase from Williams, held the legal title *348to his portion of the land as his trustees ; with the right to sell so much of it only as was necessary to reimburse the estate for its advances, &c. And in that case the rule of equity, which I have before referred to, would have deprived them of the power of buying in the trust estate for their own benefit; even if Williams had the power to sell and convey an absolute interest to a stranger without a foreclosure. On the contrary, if the appellants’ counsel are right in supposing that the agreements of 1814 gave to Quackenbush a mere personal claim, upon Leonard, or his estate, to recover damages for the non-performance of his part of the agreement, Williams had an unquestionable right to sell that claim, according to the terms of the defeasance, after reasonable notice to Quackenbush of his intention to do so if his debt was not paid ; without the delay and expense of a formal foreclosure by a decree in equity, or of advertising for six months under the statute. It is unnecessary, therefore, to decide the question, which was raised upon the hearing of this appeal, whether a formal foreclosure is necessary to bar the equity of redemption of the mortgagor upon the pledge or mortgage of amere contract for the purchase of real estate, where the mortgagee is authorized by the mortgagor to sell such contract for the best price he can obtain for it if the debt is not paid.
Upon a careful examination of the terms of the agreements of 1814, I think it is .evident the parties intended that each should have an equitable estate and interest in his portion of the lands to be purchased from the state ; although they appear to have contemplated that the certificates of purchase, and even the patents for the lands, might be taken out in the name of Leonard, who was to make the necessary advances. By the recital in each agreement it appears, that an application had already been made to the surveyor general for the purchase of the particular lots in each tract, for the joint benefit of the parties, at the time of the execution of those agreements respectively. And probably the eighth of the purchase money had been paid, as required by the statute, upon *349making such application. (1 R. L. of 1813, p. 297, § 21.) Indeed it appears from the schedules annexed to the answer that the first payment in each case was made on the day of the date of the agreement. The payment of that instalment, and the execution of the agreements respectively, gave to each of the parties to the same an equitable interest in the specific lands which had thus been applied for. And when the executors afterwards obtained the certificates, under the act of February 1816, they held them for the benefit of Quackenbush and Webster, as well as of the estate of Leonard. The legal title which was afterwards transferred to such executors by the patents, therefore, was held by them as trustees for all who were then beneficially interested in such lands, according to their respective rights and interests under the agreements and the assignment from Webster. I therefore conclude that the vice chancellor was right in declaring that the complainants were entitled to redeem from the mortgage given to Williams, and to have a conveyance of the legal interest in their share of the two tracts, exclusive of the seven lots in the North River Head Tract, when they should have so redeemed, and when the estate of Leonard should have been reimbursed for its advances.
The appellants, however, are entitled to have the usual provision, which is always inserted in a decree to redeem, that the redemption money shall be paid within a certain specified time after the amount due shall have been ascertained, or that the complainants’ bill be dismissed with costs; which dismissal of the bill is a perpetual bar to any future claim of an equity of redemption in the mortgaged premises. The usual time allowed for that purpose is six months. Upon the coming in and confirmation of the master’s report, therefore, if it does not appear that the $1000 paid for the purchase from Williams, with the interest thereon, has been fully satisfied, in addition to the reimbursement of the estate of Leonard for its advances, &c. and all other charges and expenses, for taxes and otherwise, which are properly payable out of the proceeds of the *350sales, the complainants must, within six months, pay the amount reported due upon the mortgage, with interest thereon from the date of the master’s report, to the executors or their solicitor, for the benefit of the estate of Leonard, or the bill must be dismissed with costs.
The master to whom the case is referred must designate, in the manner specified in the second agreement, seven of the lots in the North River Head Tract, to be held by the trustees for the exclusive benefit of the estate of Leonard, and must specify such lots in a separate report; to the end that such report may be filed and confirmed without waiting for the coming in of his general report. And if any of the lots thus drawn have been already sold' by the executors, the respondents are not to be charged, in the account, for the value of such lots, or for the purchase money received therefor ; nor are they to be credited for taxes or other expenses upon any of the seven lots thus drawn by them.
The proper mode of stating the accounts, under the decree, exclusive of what was paid upon the purchase from Williams, will be to compute the simple interest on the receipts and disbursements, in relation to the lands specified in each agreement separately, until the expiration of the six years from the date of the contract, including monies received for lands sold, &c. and then to make annual rests, for the purpose of giving the estate compound interest upon its advances, until the debt due to the estate on account of each agreement is extinguished ; and after that, to allow interest on the receipts and disbursements as shall be just.
The allegation in the bill that Webster had conveyed or released his interest in the Essex tract to the trustees, is denied in the answer, and is not sustained by proof. He or his representatives are necessary parties to a suit for the partition of that tract. It is also doubtful whether the heirs at law of Leonard ought not to be made parties to a suit for that purpose, under the special provisions of his will and the operation of the revised statutes upon the *351estate of the trustees. The provision in the decree relative to the partition of the estate is therefore erroneous.
The decree appealed from must be modified in conformity with this opinion. And neither party is to have costs as against the other upon the appeal. Some of the executors having died pending the appeal, the decree must be entered nunc pro tunc as of the time of the argument. And an order may now be entered, suggesting the death of such executors, and directing the suit to proceed against the surviving executrix and executor of the estate of Leonard,