| Ill. | Apr 15, 1861
There is but one question in this case which we deem it necessary to discuss, and it is, whether there was a valid agreement to extend the time for the redemption of the farm from the deed of trust, for one year after the money became payable. Appellee, before he went South, made the necessary arrangements to have collected and deposited, four hundred dollars, with Davidson, giving him directions to pay it to appellant as advance interest for the extension of the time of redemption for another year. Ellen and William Pratt both testify that in conversations in reference to the extension of time, they heard appellant state, that if the four hundred dollars should be paid, it would all be right. Mrs. Pratt sent her son to see Wheeler, who was to pay the four hundred dollars, and on his return he informed appellant that Wheeler had promised to pay the money on the following Monday or Tuesday, when he said it was all right. Wheeler paid the money, but appellant refused to receive it or extend the time of payment.
When the evidence is considered, we can have no hesitation in believing that appellee left with the understanding and belief that upon the payment of the interest in advance, for another year, the time for redemption would be extended. And we think it equally apparent that such was the understanding of appellant, as he, in a conversation with Mrs. Pratt and William Pratt, seems to have fully recognized such an agreement. When we consider the fact, that the farm was worth at least three-fold the amount of the debt for which it was pledged, with the interest, we can hardly comprehend that any man of common prudence would have left, when he knew that it was in the power of the creditor to require the trustee to sell, without any personal notice to appellee, and when such a sale would pass the title without redemption, without having first made arrangements for an extension of time for the payment. The agreement to pay the four ‘hundred dollars for the extension of time to redeem, was substantially performed by appellee.
As there was two hundred dollars over and above legal interest, agreed to be paid in advance under the name of interest, we are at a loss to perceive why it did not constitute an ample consideration to support the agreement, if it were not usurious. After maturity the debt could only bear legal interest, not exceeding ten per cent, if so stipulated, or six if not, and if not relied upon by appellee as usury, the excess must be regarded as the consideration for an extension of the time for another year. As usury the appellee alone had the right to insist upon it as a defense, and until he interposed the statute, the contract is binding. And ‘by tendering the original debt, together with the four hundred dollars with interest as the redemption money, the appellee has chosen to regard the excess over the legal interest as a consideration for the extension of time. But even if it were regarded as usurious, it was inequitable and unjust in appellant to induce appellee to rely upon his promise to extend the time of redemption until he should by his absence, be unable to redeem, and thereby be deprived of a farm worth from seven to eight thousand dollars for a trifle over two. It seems to us that a "court of equity can never sanction such injustice and wrong, but must interpose its strong arm to afford relief. Fairness and justice surely required appellant, if he did not intend to extend the time for redemption, to notify the appellee, when applied to for further time, and not to mislead, or encourage a belief that time would be given. The law can never permit a man to mislead his friend and neighbor, and then reward him for it by giving him four or six thousand dollars’ worth of his property. To so apply the law would be monstrous, and to use it as a snare for the honest and confiding, and a shield to the unscrupulous and designing, would be a perversion of justice. Such is not the spirit or policy of the law, but on the contrary it will prevent fraud and injustice, let it assume any guise -it may.
We have no hesitation in saying, that the evidence shows that appellee was induced by appellant to rely upon the agreement, and was thereby prevented from redeeming the land within the time limited by the deed of trust, and that he was entitled to redeem at the time he made the tender, and that the decree of the court below must be affirmed.
Decree affirmed.