Mr. Justice Magruder
delivered the opinion of the court:
First—The amount, paid by appellee in order to purchase the master’s certificate of sale under the written agreement of October 8, 1878, was $550.00. Appellants contend, that they are entitled to redeem the premises in question upon the payment to appellee of said sum of $550.00, less the sum of $427.61 paid thereon on September 1, 1882, together with interest. The contention of the appellants is, that appellee held the master’s certificate and the master’s deed subsequently obtained thereon, as security for the payment of the amount advanced to purchase the certificate, and that the assignment to him of the certificate and the execution to him of the master’s . deed, constituted a mortgage. The circuit court in its final decree held, that the agreement of October 8, 1878, was not a mortgage, but merely a contract to convey upon the payment of the sum named in the agreement of October 8, 1878.
The first question, therefore, is, whether the written agreement of October 8,-1878, was a mortgage, or a contract to convey upon the payment of an agreed purchase price.
We lay no stress upon the fact, that appellee obtained a master’s deed upon the certificate, as indicating any intention to defraud, or take advantage of, the appellants. Appellee was entitled to a master’s deed by the terms of the certificate of sale at the expiration of the period of redemption. It is not contended that, if appellants had the rights claimed by them under the written agreement of October 8, 1878, they did not have the same rights after the execution of the deed. The existence of the contract was recognized by the extension of one year granted on January 8, 1880. Its further existence was recognized when the payment of $427.61 was made on September 1,1882, and endorsed upon the contract. By these acts appellee evidently waived the requirement, that time should be of the essence of the cóntract, and waived the right to insist upon a forfeiture because of non-fulfillment within the original time fixed. Appellants paid nothing after September 1, 1882, upon the -written , agreement; and, as appellee’s right to a master’s deed would have expired five years after January 8,1879, when the period of fifteen months for redemption ended, he surely was not bound to wait until his right to claim a deed was lost.
In this case, the instrument to be construed, which one side claims to be a mortgage, and the other to be a contract of purchase and re-sale, is in writing. It is not claimed, that any fraud was practiced by the appellee in order to obtain this contract; and where an interest of either party in the property is expressed in a written instrument, it will be presumed that the actual and entire interest is expressed. (Kerting v. Hilton, 152 Ill. 658).
In order to determine, whether an instrument like the one here in controversy is a mortgage, or a contract of purchase and re-sale, it is necessary to inquire whether any indebtedness existed at the time of the execution of the instrument. The appellee here held a master’s certificate, which subsequently ripened into a master’s deed conveying the title absolutely upon its face. No debt existed on October 8, 1878, from the appellants to the appellee. If an instrument is a mortgage, there must be some debt in existence, which the mortgage secures. (Burgett v. Osborne, 172 Ill. 227, and cases there cited). When the instrument of October 8, 1878, was executed, the twelve months, allowed by law to the appellants and to the other heirs of Daniel P. Carpenter, deceased, to redeem the forty acres from the foreclosure sale, had expired, or were about to expire. Upon the expiration of the statutory period of twelve months appellants had no interest in the property. During the three months after the expiration of the twelve months only judgment creditors could redeem. Inasmuch, therefore, as appellants had no interest in the property by reason of the expiration of the twelve months, there was no title in them which they could mortgage.' (Burgett v. Osborne, supra). Appellee, by the terms of the contract, was to purchase the certificate of sale, and hold it for his own benefit; but an option was given to the appellants to re-purchase it by paying him the amount of purchase money, which he had advanced, within a certain time.
Counsel for appellants lays stress upon the use, in the agreement, of the word, “advance,” and refers to authorities, which hold that, where money is stated to have been “advanced,” it must be regarded as a loan to be repaid. (Chase v. Ewing, 51 Barb. 597; Powder Co. v. Burkhardt, 7 Otto, 110). There is nothing in the terms of the contract here to indicate, that appellee was to make an advance of money to appellants to purchase the certificate for them, but he was merely to advance h'is own money to purchase the certificate for himself.
Counsel for appellants also alludes to several circumstances, as indicating that the intention of the parties was to make the transaction a mortgage. One of these circumstances is, that the premises were worth much more in value than the amount advanced by appellee to purchase the certificate of sale. Other circumstances are, that appellants were allowed to remain in possession, and to offer the property for sale, and to pay the taxes thereon, and were granted extensions, and allowed to make a payment after the period named in the contract had expired. As the agreement of the parties was embodied in writing, these outside circumstances could not be allowed to vary its terms; and, in addition to this, the acts of ownership, exercised by the appellants, were Consistent with, and could have been performed under, the subsequent arrangement that was made between the parties.
We are inclined to the opinion that the circuit court decided correctly in holding that the original agreement of October 8, 1878, was not a mortgage, but a contract to convey upon payment of an agreed purchase price. But we are also inclined to think that it makes very little difference whether this construction of the original agreement is the proper one or not in view of the verbal arrangement subsequently made. Appellants contend that the original instrument .was a mortgage; and appellee admits that, after September 1, 1882, when the new oral agreement is alleged to have been made, he held the master’s deed as a security for the indebtedness due both under the original agreement of October 8, 1878, and under the new oral agreement of September 1, 1882; and he thereby concedes that it wras a mortgage after the latter date. If the oral agreement, claimed to have been made on or about September 1, 1882, was actually made and was a valid agreement, it supplanted the former written agreement; and inasmuch as thereafter the appellee held the master’s deed as security for all the indebtedness of appellants to him, it would be immaterial whether, prior to that date, the agreement of October 8, 1878, was a mortgage or not.
Second—The next question is whether, on or about September 1, 1882, an oral agreement was made, by the terms of which the title held by appellee was to be security for the indebtedness existing prior to that time, and also for the indebtedness which might accrue and did accrue after that time.
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Mr. Justice Magruder
delivered the opinion of the court:
First—The amount, paid by appellee in order to purchase the master’s certificate of sale under the written agreement of October 8, 1878, was $550.00. Appellants contend, that they are entitled to redeem the premises in question upon the payment to appellee of said sum of $550.00, less the sum of $427.61 paid thereon on September 1, 1882, together with interest. The contention of the appellants is, that appellee held the master’s certificate and the master’s deed subsequently obtained thereon, as security for the payment of the amount advanced to purchase the certificate, and that the assignment to him of the certificate and the execution to him of the master’s . deed, constituted a mortgage. The circuit court in its final decree held, that the agreement of October 8, 1878, was not a mortgage, but merely a contract to convey upon the payment of the sum named in the agreement of October 8, 1878.
The first question, therefore, is, whether the written agreement of October 8,-1878, was a mortgage, or a contract to convey upon the payment of an agreed purchase price.
We lay no stress upon the fact, that appellee obtained a master’s deed upon the certificate, as indicating any intention to defraud, or take advantage of, the appellants. Appellee was entitled to a master’s deed by the terms of the certificate of sale at the expiration of the period of redemption. It is not contended that, if appellants had the rights claimed by them under the written agreement of October 8, 1878, they did not have the same rights after the execution of the deed. The existence of the contract was recognized by the extension of one year granted on January 8, 1880. Its further existence was recognized when the payment of $427.61 was made on September 1,1882, and endorsed upon the contract. By these acts appellee evidently waived the requirement, that time should be of the essence of the cóntract, and waived the right to insist upon a forfeiture because of non-fulfillment within the original time fixed. Appellants paid nothing after September 1, 1882, upon the -written , agreement; and, as appellee’s right to a master’s deed would have expired five years after January 8,1879, when the period of fifteen months for redemption ended, he surely was not bound to wait until his right to claim a deed was lost.
In this case, the instrument to be construed, which one side claims to be a mortgage, and the other to be a contract of purchase and re-sale, is in writing. It is not claimed, that any fraud was practiced by the appellee in order to obtain this contract; and where an interest of either party in the property is expressed in a written instrument, it will be presumed that the actual and entire interest is expressed. (Kerting v. Hilton, 152 Ill. 658).
In order to determine, whether an instrument like the one here in controversy is a mortgage, or a contract of purchase and re-sale, it is necessary to inquire whether any indebtedness existed at the time of the execution of the instrument. The appellee here held a master’s certificate, which subsequently ripened into a master’s deed conveying the title absolutely upon its face. No debt existed on October 8, 1878, from the appellants to the appellee. If an instrument is a mortgage, there must be some debt in existence, which the mortgage secures. (Burgett v. Osborne, 172 Ill. 227, and cases there cited). When the instrument of October 8, 1878, was executed, the twelve months, allowed by law to the appellants and to the other heirs of Daniel P. Carpenter, deceased, to redeem the forty acres from the foreclosure sale, had expired, or were about to expire. Upon the expiration of the statutory period of twelve months appellants had no interest in the property. During the three months after the expiration of the twelve months only judgment creditors could redeem. Inasmuch, therefore, as appellants had no interest in the property by reason of the expiration of the twelve months, there was no title in them which they could mortgage.' (Burgett v. Osborne, supra). Appellee, by the terms of the contract, was to purchase the certificate of sale, and hold it for his own benefit; but an option was given to the appellants to re-purchase it by paying him the amount of purchase money, which he had advanced, within a certain time.
Counsel for appellants lays stress upon the use, in the agreement, of the word, “advance,” and refers to authorities, which hold that, where money is stated to have been “advanced,” it must be regarded as a loan to be repaid. (Chase v. Ewing, 51 Barb. 597; Powder Co. v. Burkhardt, 7 Otto, 110). There is nothing in the terms of the contract here to indicate, that appellee was to make an advance of money to appellants to purchase the certificate for them, but he was merely to advance h'is own money to purchase the certificate for himself.
Counsel for appellants also alludes to several circumstances, as indicating that the intention of the parties was to make the transaction a mortgage. One of these circumstances is, that the premises were worth much more in value than the amount advanced by appellee to purchase the certificate of sale. Other circumstances are, that appellants were allowed to remain in possession, and to offer the property for sale, and to pay the taxes thereon, and were granted extensions, and allowed to make a payment after the period named in the contract had expired. As the agreement of the parties was embodied in writing, these outside circumstances could not be allowed to vary its terms; and, in addition to this, the acts of ownership, exercised by the appellants, were Consistent with, and could have been performed under, the subsequent arrangement that was made between the parties.
We are inclined to the opinion that the circuit court decided correctly in holding that the original agreement of October 8, 1878, was not a mortgage, but a contract to convey upon payment of an agreed purchase price. But we are also inclined to think that it makes very little difference whether this construction of the original agreement is the proper one or not in view of the verbal arrangement subsequently made. Appellants contend that the original instrument .was a mortgage; and appellee admits that, after September 1, 1882, when the new oral agreement is alleged to have been made, he held the master’s deed as a security for the indebtedness due both under the original agreement of October 8, 1878, and under the new oral agreement of September 1, 1882; and he thereby concedes that it wras a mortgage after the latter date. If the oral agreement, claimed to have been made on or about September 1, 1882, was actually made and was a valid agreement, it supplanted the former written agreement; and inasmuch as thereafter the appellee held the master’s deed as security for all the indebtedness of appellants to him, it would be immaterial whether, prior to that date, the agreement of October 8, 1878, was a mortgage or not.
Second—The next question is whether, on or about September 1, 1882, an oral agreement was made, by the terms of which the title held by appellee was to be security for the indebtedness existing prior to that time, and also for the indebtedness which might accrue and did accrue after that time.
The master in his report found that the oral agreement, contended for by appellee, was actually made, and that, in pursuance of it, subsequent advances were made by appellee to appellants; and that subsequent indebtedness was incurred by appellants to appellee upon the security of the master’s deed held by appellee. The circuit court in its decree confirmed the master’s finding upon this question. After a careful examination, we are of the opinion that the evidence sustains the finding of the master and the decree of the court. The testimony of appellee and of William Plagge sustains appellee’s contention that there was such an agreement. This testimony is confirmed by the fact that appellants were insolvent, owning substantially no interest in any real estate, and having given chattel mortgages upon their personal property. The evidence is clear that, from time to time after September 1,1882, appellee advanced money to appellants to enable them to pay their debts and relieve themselves from pressing liability. It is unnatural to suppose that appellee would do this, unless he was secured in some way, and there was no other way, in which he could be secured, unless the master’s deed held by him was so held as such security. Again, W. W. Stevens, the attorney of one Herbert who held a judgment lien for $1100.00 against appellants, and settled the same" with them at fifty cents on the dollar by accepting that amount advanced by appellee for appellants, swears that, in the course of the negotiations, appellants admitted that appellee was making advances to them for the payment of their debts upon the security of the land; and, while Stevens may have been mistaken in the description of the forty acres embraced in the deed, the evidence does not show, that appellee held any deed, or other security, upon any other tract of forty acres than that conveyed by the master’s deed.
Third—Appellants do not deny that they owed the debts to appellee alleged by him to have been incurred by them after September 1,1882. But, in an amendment to the answer filed by them to the appellee’s cross-bill, they set up, that these subsequently incurred debts were barred by the Statute of Limitations, although they do not plead the Statute of Limitations to the indebtedness, alleged to have been created under the agreement of October 8, 1878. The subsequent debts were not barred by the Statute of Limitations. These debts consisted of two notes, one of which was due in 1884 and the other in 1885, and also of a book account. The bill in the present case was filed in May, 1897. Payments were made upon the notes as late as May, 1889. Ten years from the dates of such payments did not expire until 1899, after the present bill was filed. As to the book account, it appears from its face that there were mutual accounts between appellee on the one side and appellants on the other, and that there are some items in the account, which are within the period of limitation of five years prior to the filing of the present bill. This being so, the whole amount, due upon book account, is taken out of the Statute of Limitations. (Miller v. Cinnamon, 168 Ill. 447; O’Brien v. Sexton, 140 id. 517).
Fourth—It is further contended by appellants, that the indebtedness, incurred after September 1,1882, was not secured by the original agreement of October 8,1878, claimed by appellants to be a mortgage; and that, this being so, appellee, as mortgagee, cannot tack to his mortgage debts subsequently incurred, and require their payment by appellants, as mortgagors, as a condition to their right to redeem. This doctrine is sustained by many respectable authorities. (1 Jones on Mortgages,— 4th ed.—sec. 360, and cases in note 4).
Other authorities, however, hold to the contrary, and the substance of them has been stated as follows: “If a person, entitled to redeem, goes into equity for that purpose, and he owes the mortgagee other sums than that secured by the mortgage, relief will be granted only on the payment of the total amount of his indebtedness, in accordance with the maxim that ‘he who asks equity must do equity,’ and to prevent circuity of action.” (11 Am. & Eng. Ency. of Law,—2d ed.—p. 230; Anthony v. Anthony, 23 Ark. 479; Scripture v. Johnson, 3 Conn. 211; Rowan v. Sharps’ Rifle Manf. Co. 33 id. 28; Coombs v. Jordan, 3 Bland. 330; Chase v. McDonald, 7 Har. & J. 160; Lee v. Stone, 5 Gill & J. 1; Gelston v. Thompson, 29 Md. 595; Brown v. Stewart, 56 id. 431; Reed v. Lansdale, 1 Hard. 8; Walling v. Aiken, 13 S. C. Eq. 1; Ogle v. Ship, 1 A. K. Marsh. 211; McClanachan v. Siter, 2 Graft. 280). This doctrine, however, is, under the authorities last above referred to, limited to cases where the mortgagee is invested with the legal title to the property, and makes further advances, in addition to the original debt secured, upon the credit of the land to which the title- is held; and where the title held is made available to secure the further advances by a legal, contract between the parties; and where the rights of subsequent encumbrancers, or persons who have acquired junior liens are not prejudiced thereby. Debts" created, or advances made to a mortgagor subsequent to the mortgage, cannot be tacked to the mortgage debt to the prejudice of third persons, who have acquired junior liens upon the mortgaged property. That the doctrine, however, is applicable as between the mortgagee and the mortgagor is established by the foregoing authorities.
Some of the cases, which hold that, after an actual payment of the debt secured, the mortgage cannot be revived by an oral agreement to keep it in force to secure a distinct and independent debt, at the same time hold that, where the mortgagor seeks the aid of a court of equity to enforce' for himself the right of redemption, .equity will require him to perform such oral agreement before relief will be granted. If, after the breach of the condition of a mortgage of land, further advancements are made by the mortgagee to the mortgagor, under an oral agreement that the mortgage shall stand as security for them, a court of equity will not aid the mortgagor Clone who has no higher equity than the mortgagor to redeem without allowing for such advancements, in addition to the amount named in the mortgage. The doctrine has otherwise been stated as follows: “If the mortgagee makes subsequent advances to the mortgagor * * * under an agreement that the mortgage shall stand as security therefor, neither the mortgagor, nor any one without equities superior to his, will be permitted to redeem without paying the amount of such advances in addition to the amount named in the mortgage.” (11 Am. & Eng. Ency. of Law,—2d ed.—p. 230, note 4; Joslyn v. Wyman, 5 Allen, 62; Stone v. Lane, 10 id. 74).
In Upton v. National Bank of South Reading, 120 Mass. 156, the • Supreme Court of Massachusetts, in discussing this subject, say: “The objection, that ■such an oral agreement could not be put in evidence, cannot be maintained. While an indebtedness, other than that for which the mortgage was given, cannot legally be attached to such mortgage, yet it is competent, in answer to a bill in equity to redeem a mortgage, for the defendant to show that it would be inequitable to allow the complainant to do so upon payment of the amount apparently due thereon, inasmuch as the defendant had, for valuable consideration, orally agreed that it should not thus be discharged, but should remain as security for other debts.” The court proceed to say, however, that where a question of title arises between the defendant and a subsequent mortgagee, attaching creditor or bona fide purchaser, the defendant can only enforce the mortgage for that portion of the debt actually due. (Williamson v. Downs, 34 Miss. 402). The doctrine thus announced appears to have been endorsed by this court in the case of Brown v. Gaffney, 32 Ill. 251, in connection with the same case as reported in 28 Ill. 149. (See, also, Edwards v. Dwight, 68 Ala. 391).
If, therefore, the enforcement of the security in question for the subsequent indebtedness of appellants to appellee, under the oral agreement already set forth, is to be regarded as a tacking by the mortgagee to his mortgage of advances subsequently made, the defense of the appellants to the cross-bill upon that ground is not well taken. No maxim of equity is better settled than that he, who asks equity, must do equity; and, where a party seeks in a court of equity to divest another of the legal title to land, the court may impose equitable terms, on which relief will be granted. (Galbraith v. Tracy, 153 Ill. 54; St. Patrick's Catholic Church v. Daly, 116 id. 76; DeWalsh v. Braman, 160 id. 415).
Fifth—Appellants, however, insist that the equitable title to the property in controversy, under the agreement of October 8,1878, was not in either or both of the appellants alone, but in the heirs of Daniel F. Carpenter, and that, upon this ground, it would be unjust to require the debts of appellants to be paid, in order to secure a redemption, which is alleged to be for the benefit of all of such heirs. This contention cannot be sustained, because the rights of the heirs were extinguished by their failure to redeem from the master’s sale within the time limited by law, and by the subsequent issue of the master’s deed to appellee. In addition to this, the agreement itself upon its face provides, that appellee was to hold the certificate of sale for his own benefit, unless Henry Carpenter, 'or the heirs of Daniel F. Carpenter, deceased, or some, or all of them, should, within fifteen months from such purchase, pay appellee the money advanced, etc. The payment made on September 1,1882, was made with the money of the appellants alone, and not with any money belonging to all the heirs of Daniel F. Carpenter. So far as appellee was concerned, he had a right, under the terms of the agreement, to deal with Henry Carpenter, or with him and his brother, Daniel B. Carpenter, and not necessarily with all the heirs.
- Sixth—We are unable to see what the appellants are to gain by resisting the ‘ enforcement of the security for the payment of their’subsequent indebtedness to appellee. If appellee’s cross-bill is dismissed for want of equity, or on account of the absence of any legal right to obtain the relief thereby asked, then the case stands upon the issue made by the original bill of the appellants and the answer of appellee and the amendment to such answer. By the original bill appellants seek to redeem the property upon the payment only of what may be due under the original agreement of October 8,1878. The last payment made upon that agreement by appellants was made on September 1, 1882. In his amended answer to the original bill appellee pleads laches and the Statute of Limitations. More than fourteen years elapsed after September 1, 1882, before the original bill to redeem was filed in this case on May 7, 1897. It is clear, therefore, that, if the agreement of October 8,1878, was a mortgage, the debt secured thereby was barred by the Statute of Limitations when the original bill herein was filed; and the right to foreclose the agreement, as a mortgage for the security of that debt, was also barred by the statute. The right to foreclose and the right to redeem are reciprocal rights; and, if one is gone, then the other is lost. “If the Statute of Limitations then barred a foreclosure, it, for the same reason, barred a redemption from the deed, regarded as a mortgage, for the right to redeem and the right to foreclose are reciprocal, and when the one is barred-, the other is barred.” (Green v. Capps, 142 Ill. 286; Walker v. Warner, 179 id. 16; Jackson v. Lynch, 129 id. 72; Locke v. Caldwell, 91 id. 417).
Appellee expresses a willingness in his cross-bill to deed the property back to appellants upon their payment to him of the total indebtedness found by the master to be due to him. His offer, however, to allow the master’s deed to stand as security for the total indebtedness must be taken as it is made, and it cannot be regarded as an admission on his part, that the deed may be enforced as a security for the original indebtedness, if it does not stand also as security for the subsequent indebtedness.
Seventh-^We are of the opinion, however, that the form of the decree entered by the trial court was not correct. The decree does not provide for the sale of the premises for the payment of the amount due to the appellee, but provides that, in case redemption is not made within the time limited, the title of appellee to the property shall become absolute. This amounts, in substance, to a strict foreclosure of what appellee, really and in effect, admits to be a mortgage to secure the payment of the original and subsequent indebtedness together. The general rule in this State is, that a strict foreclosure will only be decreed, where it appears that the property is of less value than the debt for which it is mortgaged, and the mortgagor is insolvent, and the mortgagee is willing to take the property in discharge of his debt. (Farrell v. Parlier, 50 Ill. 274; Boyer v. Boyer, 89 id. 447; Illinois Starch Co. v. Ottawa Hydraulic Co. 125 id. 237). In the case at bar, the proof shows that the premises are worth more than the amount of the indebtedness found to be due to appellee.
The ordinary decree, on allowing parties to redeem from a mortgage, is that the complainant be allowed to redeem the premises, upon payment of the sum found to be due within a reasonable time to be fixed therein together with the costs, and'directing the defendant to discharge the mortg-age—or to convey the property to the complainant, if the defendant holds a deed instead of a mortgage as security—on the payment of the money, and that, in default of such payment within the time specified, the bill be dismissed. (Decker v. Patton, 120 Ill. 464; DeWalsh v. Braman, 160 id. 415; Chicago and Calumet Rolling Mill Co. v. Scully, 141 id. 408; Bremer v. Canal and Dock Co. 127 id. 464; Harper v. Ely, 56 id. 179). But this is not merely a bill to redeem; it is also a bill to foreclose. While the original bill of the appellants seeks redemption, the cross-bill of the appellee seeks a foreclosure of the master’s deed, regarded as a mortgage, for the security of the total indebtedness. The cause came on to be heard upon the making of the final decree, and relief was granted, not merely upon the original bill, but upon the cross-bill also. As the main relief granted is the foreclosure of a mortgage, the court below should have ordered a sale of the property, so as to permit the appellants to redeem the same in accordance with the provisions of the statute.
In all other respects than the one last mentioned as to the form of the decree, the decree of the circuit court is affirmed. In view, however, of the defect in the form of the decree, the decree is reversed, and the cause is remanded to the circuit court with directions to modify and change its decree in the respect indicated. Each party will pay one-half of the costs in this court.
Partly affirmed and remanded with directions.