Statement of the case.

"We understand the above case of Locke v. Caldwell, from which we have quoted, as holding that the right of redemption is not barred by a less time than the right of foreclosure,— which, under the statute in force when the note in question here was made, would be ten years. This bill was filed in a little over five years after the note was due.

"Counsel for appellees cite us to a great number of cases where equitable relief has been denied on the ground of laches, and to many cases where the right to redeem has been refused for the same reason. It is said that Bush v. Sherman, 80 Ill. 160, is an authority against appellant. In that case the mortgagor executed a trust deed, with a power of sale, and then voluntarily went into the great rebellion, and joined himself to the enemies of his country, and while absent the premises were sold under the power. When he returned, after the war, he filed a bill to set aside the sale, alleging that the power was not executed in strict conformity with the deed of trust. There was no question of the right of redemption involved. The court held that his delay was inexcusable for the purpose of setting aside a sale for mere irregularity.

"In Cleaver v. Green, 107 Ill. 68, it was held that five years' lapse of time would bar a right to set aside a sale made under a trust deed, with a power of sale, for mere irregularities in the sale. No question of the right of redemption was made, further than that such right would result from setting aside the sale.

"In Beach v. Dyer, 93 Ill. 295, the bill was to declare a trust and enforce specific performance, and complainant's laches was held a bar.

"In Williams v. Rhodes, 81 Ill. 572, the bill was to set aside an execution sale after the lapse of five years, and the relief was denied on account of the lapse of time.

"In Maher v. Farwell, 97 Ill. 56, the bill was filed, as in the case at bar, to redeem from an alleged mortgage, in the shape of a deed absolute on its face. The bill set up a parol agreement, made about the time of the conveyance between Maher

Statement of the case.

and Farwell, to the effect that a deed absolute should be made to Farwell, and that upon the payment of a note of $1700, which Farwell held against Maher, the land should be conveyed back to Maher. The bill to redeem was filed some thirteen years after the date of the deed and the alleged parol agreement, and the relief was denied. The court, in that case, seems to place the chief ground for refusing the relief prayed for, on the failure of Maher to prove his bill by clear and satisfactory evidence after so great a lapse of time. It is true, the court says that Maher had shown no sufficient reason for the long and extraordinary delay in bringing his suit, and until the facts connected with the transaction had faded from . the memory of the witnesses, or the witnesses died or left the country. So far as can be gathered from this case, the attention of the court had not been called to its previous deliberate judgment in Locke v. Caldwell, 91 Ill. 417. The remark as to the lapse of thirteen years seems to be incidental to the main point of the decision holding that the parol defeasance was not sufficiently proven, and that it was dangerous to place too much weight on the memory of witnesses after the lapse of so many years. These observations of the court could have no application where the defeasance was in writing and under seal, and where there could be no question about the fact of the defeasance being made, as in the case before us. That and this case, in that important respect, are wholly different.

"But aside from the grounds upon which we have so far considered the case, and found that appellant has the right to redeem, we are not disposed to hold that appellant would not have the right to redeem from the mere lapse of time. It is evident, from the record, that his financial condition made it difficult, if not impossible, for him to raise so large a sum of money, and that for him to have made application to redeem without the money to do so would have been an idle ceremony. He might well rest on the presumption that his debt was being paid by the rents, and that it was much better for him to let 6-129 ILL.

Brief for the Plaintiffs in Error.

it remain in that condition until the debt was paid, than for him to repossess himself of it, and again begin the struggle to pay the debt himself, which he had so successfully failed to do before he executed the mortgage and let the mortgagee into possession. We think the delay was not so great or unreasonable, under the circumstances, as to justify a court of equity in now withholding the right to redeem on the mere ground of laches, even if there were no better ground upon which to place the right to redeem.

"For the reasons above given, we think the court erred in dismissing complainant's bill. The decree will be reversed, and the cause remanded, with directions to the court to set aside the order dismissing the bill, and to grant a decree allowing complainant to redeem, and to refer the case to the master to state an account of the amount due on the note, and also of the rents and profits received by the appellees, together with taxes and insurance paid, and the reasonable and necessary repairs made, and at the end of each year to credit the note with the surplus, if any, of rents over taxes, insurance and necessary repairs, etc., or for each succeeding year. If there is any balance found due complainant he will be entitled to a decree for that amount, and if there be any balance found due appellant he will be entitled to a decree against the party having had possession of the property, for such balance."

Mr. CHARLES WHEATON, and Mr. M. O. SOUTHWORTH, for the plaintiffs in error:

On the question and doctrine of laches, see Lloyd v. Lee, 45 Ill. 277; Brooks v. Record, 47 id. 30; Kane County v. Herrington, 50 id. 232; Cochran v. Harrow, 22 id. 345; Walsh v. Brennan, 52 id. 193; Donaldson v. Holmes, 23 id. 85; Anderson v. Frye, 18 id. 94; Dempster v. West, 69 id. 613; Brink v. Munn v. Burges, id. 604; Hamilton v.

Steadman, 70 id. 241;

Lubukee, 51 id. 415; Williams v. Rhodes, 81 id. 572; Beach v. Dyer, 93 id. 295; Maher v. Farwell, 97 id. 56.

Brief for the Defendant in Error. Opinion of the Court.

As to whether the deed and contract constituted a mortgage, or sale and contract for re-sale, see 1 Jones on Mortgages, sec. 267; Rue v. Dole, 107 Ill. 275; Pitts v. Cable, 44 id. 103; Hanford v. Blessing, 80 id. 188.

Mr. R. G. MONTONY, and Mr. A. C. LITTLE, for the defendant in error:

As to whether the deed constituted a mortgage, see Glass v. Doane, 15 Bradw. 66; Sutphen v. Cushman, 35 Ill. 186; 4 Kent's Com. 136; 1 Washburn on Real Prop. 505; Snyder v. Griswold, 37 Ill. 216; Taintor v. Keyes, 43 id. 332; 1 Jones on Mortgages, secs. 267, 241-245, 250.

As to the Statute of Limitations and laches, see 2 Daniell's Ch. Pl. and Pr. 729, 732, 735; 2 Story's Eq. Jur. sec. 1520; Smith v. Clay, Ambler, 645; Bond v. Hopkins, 1 S. & L. 429; Ryder v. Emrich, 104 Ill. 470.

Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

We have given careful consideration to the questions discussed upon this record, and we find no reason to disagree with the conclusions reached by the Appellate Court. We hold :

First-This transaction was a mortgage, and not an absolute sale and re-sale. It differs from the cases cited and relied upon by counsel for plaintiffs in error in these material respects: The original indebtedness is not extinguished, but it is put in the form of a promissory note, payable two years after date, with interest at the rate of ten per cent per annum. This note Jackson may sue upon and collect at any time after maturity, notwithstanding anything that appears in the contract between them. Jackson is required to account for rents and profits, and, after payment for repairs and taxes, to apply the amount due on account thereof in liquidation of the note. He has no discretion in this respect, and should the amount ultimately equal or exceed the amount due upon the note, he would

Opinion of the Court.

be compelled at once to reconvey to Lynch, thus occupying the relation to Lynch of a mortgagee in possession.

Second-The plaintiff in error D. B. Jackson is not a purchaser for value. He is the mere recipient of a voluntary gift, -a devisee for no other consideration than that of natural love and affection, and as respects this property, therefore, he occupies precisely the same position as would the devisor, were he, instead of the devisee, the party to this suit.

Third-The doctrine of laches has no application to a case like the present. As between these parties, this is a mortgage, in nowise different from any other mortgage; and the same rule of limitation is alike applicable, in such case, in equity as at law. (2 Story's Eq. sec. 1520.) The plaintiff in error D. B. Jackson, as mortgagee in possession, exercises a trust, and the defendant in error was authorized to rely upon his performance of the trust until he did some act unequivocally disavowing it. And the defendant in error, therefore, can not be guilty of laches, under the facts here in evidence, by merely delaying the bringing of suit, for acquiescence in a course of conduct inconsistent with the duties of a trustee, as is well said in Perry on Trusts, (2d ed.) sec. 850, can not "be inferred until the cestui que trust has actual knowledge of the breach, for the reason that it is the duty of the trustee to execute the trust, and it is not the duty of the cestui que trust to make any inquiry." See, also, 1 Pomeroy's Eq., concluding part of sec. 418, and authorities cited in note 1, on page 460.

Fourth-We do not think the cross-error well assigned. We understand the direction to be, in substance, that an account. be taken of the amount due Jackson on his loan, and of the rents and profits which have been received since the mortgagee has been in possession, after deducting taxes and necessary repairs. There is nothing in the direction which recognizes that the account shall not include rents received by Samuel L. Jackson, or that will limit it to rents actually received, if it shall be shown that by reasonable diligence more could have