Moran, J.
This suit was commenced October 9, 1874, by appellees filing a bill to reform and foreclose a trust deed .which has been known in the litigation as the Jewett trust deed, and which was made to secure certain bonds therein described of the amount of $1,000,000, of the first $100,000 preferred of which, appellees were owners. To that bill appellant was made a defendant, and after answering, filed his cross-bill, and cross-bills were filed by various other defendants, some of which set up and asserted mortgage liens on the property covered by the Jewett trust deed prior to the lien of said trust deed. Besides the Peck bill, three other original bills were filed by parties claiming rights and interests in the property, and in all, eight cross-bills were filed by defendants to these original bills, seeking on various grounds to obtain affirmative relief.
By agreement of all the parties, all these cases on the bills and cross-bills were heard together, with the understanding that the testimony taken at the hearing should, so far as applicable, be considered in each case. The litigation progressed to a decree in the Circuit Court, which decree, after being affirmed in this court, was reversed by the Supreme Court, and the case remanded to the Circuit Court for further proceedings in conformity with the opinion of the Supreme Court.
The issues under the various pleadings, and the facts as they appeared in the record as then made up, are fully stated in the report of the case in the Supreme Court, found in the 112 Ill. 408. This appeal brings up for review the decree entered by the Circuit Court, in pursuance of the remanding order. Between the date of the filing of the bill by appellees and the redocketing of the case in the Circuit Court under said remanding order, something about fourteen years had elapsed, and it was claimed by appellants that certain changes had taken place in the condition of the parties and of the property, and certain circumstances had arisen since the filing of the bill which were proper to be considered, and various errors are now assigned upon the action of the court in not allowing a supplemental answer and cross-bill to be filed by appellant, as well as error in overruling certain exceptions of appellant to the master’s report, and in failing and refusing to grant to appellant the relief to which he is entitled under the pleadings and evidence in the case.
Appellant was the owner, before the filing of the original bill, of 301 lots of land at Riverside, all of which lots were subject to the lien of the Jewett trust deed. He was also the holder of 195 bonds of the Great Western Railroad Company, which he contended he was entitled to surrender to Jewett, the trustee, in redemption of his lots from the lien of the Jewett trust deed, according to a certain schedule of prices agreed upon and fixed by the parties to said trust deed.
In June, 1874, before the filing of the original bill, he tendered to said Jewett his said bonds, which were sufficient in amount to release his said lots from said trust deed, and demanded a release of the same; but said Jewett refused to release them, and appellant in his cross-bill claimed that he was entitled to have said lots released and prayed that the court decree him that relief.
The Supreme Court decided, reversing the decree of the Circuit Court in that as well as other respects, that the appellant was entitled, by the plain terms of the deed of trust, to the release which he demanded.
At the time, appellant offered the bonds to and demanded the release of his lots from Jewett, he supposed that said lots were subject to the lien of said Jewett trust deed only; but by the same decision, in which his right to have his lots released was upheld by the Supreme Court, it was determined that there were other liens prior in right to the said trust deed, and which cover a considerable number of his lots, to the extent of the probable value of such lots. '
On the hearing in the court below, at the entering of the decree appealed from, appellant insisted that he was not bound to surrender all of his said 195 bonds, and take a release from said trust deed of all his 301 lots, but that he had the right to redeem such of said lots as he might elect by surrendering bonds to the amount required by the schedule for such lots as he selected, and asked that it should be so decreed. But the court refused to so order, and, on the contrary, adjudged that he must release the 301 lots if he released any, and he could release none unless he released all, and gave him permission in the decree to release the 301 lots by the surrendering of the 195 bonds.
This portion of the decree is sought to be sustained on the ground that appellant tendered to the trustee in the first place 195 bonds and demanded the release of his said 301 lots, and that in his cross-hill he specifically prayed that the trustee should be compelled to release his said 301 lots on the surrender of these particular 195 bonds, and that it was upon this entire tender of all his bonds to release all his lots that the Supreme Court decided that he was entitled to a release, and to allow him to surrender any less than the 195 bonds and obtain a release of a less number than 301 lots, would be to disobey the order of the Supreme Court remanding the case “for further proceedings in conformity with its opinion.” We can not concur in this view. The provision in the Jewett trust deed relating to the release of the lots is as follows: “The trustee shall, on receiving schedule price of any lot or lots in cash or notes secured by mortgage thereon, or in railroad bonds at par, numbered from 1 to 1,000, both inclusive, release said lot or lots.”
It appears from the opinion of the Supreme Court that the ground on which the release of appellant’s lots was refused was that he had obtained the deeds to his lots by fraud, and the Circuit Court set the deeds aside. This finding the Supreme Court held erroneous, saying: “ The provisions of the trust deed were express, that upon receiving the schedule price of any lot in bonds, the trustee should release the lot from the trust deed. We find no sufficient evidence that the deeds to Sanders were obtained by fraud; and as holder of bonds to the amount of the schedule price of his lots, which he tendered, by the plain terms of the deed of trust he would seem to be entitled to the release which he demanded.” It is obvious that the question which the Supreme Court considered and determined was that Sanders was a Iona fide owner of the lots and of the bonds, and therefore entitled, on paying schedule price of any or all of his lots in bonds, to have such lots or lot released; and not that, having offered the schedule price of the 301 lots in 195 bonds at one time, he must have just that number of lots released, and surrender just that number and amount of bonds. The point was not at all as to the number of lots or as to the amount of bonds, but as to his right to have each of the lots released on surrendering to the trustee bonds to the amount of the schedule price of such lot. The question is not different from what it would have been if the Circuit Court had originally found that Sanders was entitled to a release of his lots.
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Moran, J.
This suit was commenced October 9, 1874, by appellees filing a bill to reform and foreclose a trust deed .which has been known in the litigation as the Jewett trust deed, and which was made to secure certain bonds therein described of the amount of $1,000,000, of the first $100,000 preferred of which, appellees were owners. To that bill appellant was made a defendant, and after answering, filed his cross-bill, and cross-bills were filed by various other defendants, some of which set up and asserted mortgage liens on the property covered by the Jewett trust deed prior to the lien of said trust deed. Besides the Peck bill, three other original bills were filed by parties claiming rights and interests in the property, and in all, eight cross-bills were filed by defendants to these original bills, seeking on various grounds to obtain affirmative relief.
By agreement of all the parties, all these cases on the bills and cross-bills were heard together, with the understanding that the testimony taken at the hearing should, so far as applicable, be considered in each case. The litigation progressed to a decree in the Circuit Court, which decree, after being affirmed in this court, was reversed by the Supreme Court, and the case remanded to the Circuit Court for further proceedings in conformity with the opinion of the Supreme Court.
The issues under the various pleadings, and the facts as they appeared in the record as then made up, are fully stated in the report of the case in the Supreme Court, found in the 112 Ill. 408. This appeal brings up for review the decree entered by the Circuit Court, in pursuance of the remanding order. Between the date of the filing of the bill by appellees and the redocketing of the case in the Circuit Court under said remanding order, something about fourteen years had elapsed, and it was claimed by appellants that certain changes had taken place in the condition of the parties and of the property, and certain circumstances had arisen since the filing of the bill which were proper to be considered, and various errors are now assigned upon the action of the court in not allowing a supplemental answer and cross-bill to be filed by appellant, as well as error in overruling certain exceptions of appellant to the master’s report, and in failing and refusing to grant to appellant the relief to which he is entitled under the pleadings and evidence in the case.
Appellant was the owner, before the filing of the original bill, of 301 lots of land at Riverside, all of which lots were subject to the lien of the Jewett trust deed. He was also the holder of 195 bonds of the Great Western Railroad Company, which he contended he was entitled to surrender to Jewett, the trustee, in redemption of his lots from the lien of the Jewett trust deed, according to a certain schedule of prices agreed upon and fixed by the parties to said trust deed.
In June, 1874, before the filing of the original bill, he tendered to said Jewett his said bonds, which were sufficient in amount to release his said lots from said trust deed, and demanded a release of the same; but said Jewett refused to release them, and appellant in his cross-bill claimed that he was entitled to have said lots released and prayed that the court decree him that relief.
The Supreme Court decided, reversing the decree of the Circuit Court in that as well as other respects, that the appellant was entitled, by the plain terms of the deed of trust, to the release which he demanded.
At the time, appellant offered the bonds to and demanded the release of his lots from Jewett, he supposed that said lots were subject to the lien of said Jewett trust deed only; but by the same decision, in which his right to have his lots released was upheld by the Supreme Court, it was determined that there were other liens prior in right to the said trust deed, and which cover a considerable number of his lots, to the extent of the probable value of such lots. '
On the hearing in the court below, at the entering of the decree appealed from, appellant insisted that he was not bound to surrender all of his said 195 bonds, and take a release from said trust deed of all his 301 lots, but that he had the right to redeem such of said lots as he might elect by surrendering bonds to the amount required by the schedule for such lots as he selected, and asked that it should be so decreed. But the court refused to so order, and, on the contrary, adjudged that he must release the 301 lots if he released any, and he could release none unless he released all, and gave him permission in the decree to release the 301 lots by the surrendering of the 195 bonds.
This portion of the decree is sought to be sustained on the ground that appellant tendered to the trustee in the first place 195 bonds and demanded the release of his said 301 lots, and that in his cross-hill he specifically prayed that the trustee should be compelled to release his said 301 lots on the surrender of these particular 195 bonds, and that it was upon this entire tender of all his bonds to release all his lots that the Supreme Court decided that he was entitled to a release, and to allow him to surrender any less than the 195 bonds and obtain a release of a less number than 301 lots, would be to disobey the order of the Supreme Court remanding the case “for further proceedings in conformity with its opinion.” We can not concur in this view. The provision in the Jewett trust deed relating to the release of the lots is as follows: “The trustee shall, on receiving schedule price of any lot or lots in cash or notes secured by mortgage thereon, or in railroad bonds at par, numbered from 1 to 1,000, both inclusive, release said lot or lots.”
It appears from the opinion of the Supreme Court that the ground on which the release of appellant’s lots was refused was that he had obtained the deeds to his lots by fraud, and the Circuit Court set the deeds aside. This finding the Supreme Court held erroneous, saying: “ The provisions of the trust deed were express, that upon receiving the schedule price of any lot in bonds, the trustee should release the lot from the trust deed. We find no sufficient evidence that the deeds to Sanders were obtained by fraud; and as holder of bonds to the amount of the schedule price of his lots, which he tendered, by the plain terms of the deed of trust he would seem to be entitled to the release which he demanded.” It is obvious that the question which the Supreme Court considered and determined was that Sanders was a Iona fide owner of the lots and of the bonds, and therefore entitled, on paying schedule price of any or all of his lots in bonds, to have such lots or lot released; and not that, having offered the schedule price of the 301 lots in 195 bonds at one time, he must have just that number of lots released, and surrender just that number and amount of bonds. The point was not at all as to the number of lots or as to the amount of bonds, but as to his right to have each of the lots released on surrendering to the trustee bonds to the amount of the schedule price of such lot. The question is not different from what it would have been if the Circuit Court had originally found that Sanders was entitled to a release of his lots. Can it be seriously contended that, the court having found Sanders entitled to all the relief specifically prayed for in his bill, he could not ore tenus, at the bar of the court, elect to take less than his pleading and proof entitled him to? The Supreme Court found him entitled to the full and specific-relief prayed in his bill; but we know of no ruling which would compel him, when the decree comes to be entered, to take that full relief or nothing. Ho such consequences follow from anything in the opinion of the Supreme Court, nor is such result made necessary by the form of appellant’s pleading. His bill contains a general prayer for relief, and his allegations and the proof entitle him to relief as to one or more of all the lots, and the specific prayer as to all was no obstacle to his electing at the bar to take a less number. Vansant v. Alimon, 23 Ill. 30; Holden v. Holden, 24 Ill. App. 106.
But it is said that without regard to the effect to be given to the opinion of the Supreme Court on this point, and without reference to the form of the pleading, and wholly irrespective thereof, the tender by appellant to Jewett of the 195 bonds vested in him the title, as trustee for the bondholders, and in legal contemplation they became extinguished as of that date. In support of this position, cases are cited by counsel which go to establish the proposition that upon the tender of specific chattels in payment of a debt the debtor is discharged from his contract, and the right in the articles tendered passes to the creditor, and if the debtor thereafter retains possession of the goods, it is as the bailee of the creditor, and at his risk-
The doctrine invoked, and which will be found stated at large in 2 Parsons on Contracts, 653 and 654, cited by counsel, has, in our opinion, no proper application to the case under consideration. It is a rule applicable where the rights of parties to a contract by the terms of which one is bound to deliver to the other specific chattels in payment of a debt, are in question. That is not this case. Sanders has never entered into any contract or assumed any obligation to pay off the mortgage debt or any portion of it in bonds or otherwise. There is no question here as to the performance of contract obligations by Sanders. He has the right, by the terms of the trust deed, to release his lots by the payment of money or railroad, bonds, and the latter are not specific chattels in the sense in which the term is used in authorities cited by counsel. The bonds were evidence of indebtedness, like notes payable to bearer, and if enough in amount was tendered to release any one lot, it was the same as the tender of sufficient money to effect the same purpose, and by the tender the title to the particular bonds offered to redeem a lot no more vested in the trustee than would the title to the particular money offered to him for the same purpose. The tender would be kept good by being ready to deliver for the release of such lot at any time, not the particular bond or bonds first offered, but the amount of the schedule price of such lot in bonds of the description and within the number mentioned in the deed of trust. We perceive in the facts of the case no basis whatever for holding that appellant was estopped by tendering the 195 bonds for all the lots, from afterward withholding a portion of the bonds and leaving some of the lots unredeemed. The elements of an estoppel are all wanting, and appellant had a locus ■pcanitentia in regard to his tender until an actual delivery of the bonds to the trustee had taken place-
There are, it seems to us, strong equitable grounds for allowing appellant to select for release from the trust deed such lots as he may choose, and we see no justice in requiring him to sacrifice his bonds, whatever may be their value, in releasing the lots which, when so redeemed, are still lost to appellant.
We are, therefore, of opinion that it was error to refuse to allow appellant to release less than the whole number of lots specified in his cross-bill. It is true he did not tender a proper decree, nor did he designate the particular lots which he would redeem.. It was for the court, however, to direct a proper decree, and such a decree would allow him the right to redeem any of the lots, and might fix a time within which he should designate and redeem such as he selected.
Appellant’s right to enforce a release of any of the lots, is based upon the fact that before filing his bill he offered to deliver to the trustee bonds to the amount of the schedule price of each lot.
The bonds, as then offered, had attached all the undue interest coupons. Since the tender was made, many of the coupons have become due, and appellant contends that he should be allowed to-surrender the bonds after severing from them such coupons. The chancellor held that all the coupons on the bonds when tendered must be surrendered with the bonds now delivered to redeem lots. This ruling was correct. The right will be enforced only upon the thing tendered being delivered in the condition that it was in at the time the election to redeem was exercised, when the tender made the right perfect. The coupons that were attached to the bonds when they were offered must go with the bonds now, when the court compels the acceptance of the offer. We think the release of such lots as Sanders may elect to redeem should be? as the court held, upon the condition that lie pay to the complainants all taxes which they may have paid on such lots so to be redeemed, with interest thereon from the time the same were paid; and as the redemption is allowed on Sanders’ cross-bill, no pleading on the part of complainants is necessary to support the decree for such taxes.
We do not deem it necessary to discuss other errors assigned and urged upon our attention in the brief of counsel, further than to say that except in the matters which we have heretofore in this opinion pointed out, we deem the decree appealed from to be in strict conformity with the opinion of the Supreme Court, and that all orders, of the court with regard to allowing or refusing amendments to the pleadings, or the tiling of additional pleadings, were free from error. We have not thought, it incumbent upon us in disposing of the appeal in this court, to go into a statement of the facts in this voluminous record.
The rights of all the parties in interest are fully stated in the report of the case in the Supreme Court, 112 Ill. 408.
So much of the decree of the Circuit Court as directs that upon the delivery to said Jewett by said Sanders of the 195 bonds of the C. & Gt. W. R. R. Co., said 301 lots shall be released from the lien of said Jewett trust deed will be reversed, and said decree will in all other respects be affirmed and the case will be remanded to the Circuit Court, with direction to decree that upon said Sanders within ninety days surrendering to said Jewett or the master C. & Gt. W. R. R. Co. bonds with coupons to the amount of the schedule prices of such of said 301 lots as he, said Sanders, shall, at the time of making such surrender, designate or specify, then said Jewett, or in case he refuses, the master, shall receive said bonds with coupons so surrendered, and cancel the same, and release to said Sanders, upon his also paying §2,212.01, taxes and interest thereon to complainants, the lots which may by him be designated or selected from the 301 lots; and in case said Sanders fails to select lots and surrender bonds therefor and refund said taxes within ninety days from the entering of such decree, then his cross-bill shall be dismissed.
Reversed in joa/rt and affirmed in jpart.