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Turpie v. Lowe.

demption is merely a waiver of the forfeiture of the right until that period arrives, and cannot, without an evident perversion of the true design of the parties, have the effect of converting the purchase into a mere lien to secure the repayment of the purchase money. As an agreement by the purchaser to prolong the time, might operate to prevent a redemption within the legal period, a refusal by the purchaser to accept the money and permit the redemption to be made within the time agreed, would be a fraud upon the defendant in the execution, and authorize an application by him to a court of equity for relief. But where the purchaser acts in good faith in extending the time, and the defendant in the execution fails to redeem within that time, his equity of redemption is lost. The extension of the time does not justify the inference that the purchaser intends to surrender the benefit of his purchase. Such an inference would be forced and unwarranted. Such is not the understanding or design of the parties, or the legal effect of the act. The purchaser derives no advantage from the indulgence; it is intended exclusively for the benefit of the other party. It is not inconsistent with the right claimed, to hold the land under the purchase in the event of a failure to redeem before the expiration of the time. The omission to redeem, according to the agreement, renders the purchase absolute and irredeemable. This is evidently the expectation and understanding of both parties in such a case, and the indulgence being obviously for the benefit of the debtor should not be prohibited, which in effect it would be, by giving it the legal operation contended for. Although, therefore, an extension of the time was given, yet as Southard did not pay the purchase money and interest within the time, it gave him no right to redeem after the time had expired.” See, also, Ferguson v. Smith, 7 Bush 76; Ross v. Sutherland, 81 Ill. 275.

The general rule is thus stated in Rorer on Judicial Sales (2nd ed.), $1159: “But a mere agreement to extend the

Turpie v. Lowe.

time of redemption from execution sale is only a waiver for the time being of the forfeiture of the right to redeem during the time so specified, and will not have the effect of converting the purchase into a lien for repayment of the purchase money."

While no decision upon the precise question presented here has been made by this court, it has repeatedly been held that delay of the purchaser in procuring a deed does not affect his rights under his certificate. Jones v. Kokomo Building Assn., 77 Ind. 340; Maddux v. Watkins, 88 Ind. 74, 79. So, too, it has been declared that a valid assignment of the certificate may be made by the purchaser as well after as before the expiration of the year allowed for redemption. Conger v. Babcock, 87 Ind. 497; Maddux v. Watkins, SS Ind. 74, 79. And the holder of the certificate may permit the execution defendant to redeem the land after the statutory period for redemption has expired. Taggart v. McKinsey, 85 Ind. 392. The cases in this State seem to be entirely in harmony with the rule laid down in Southard v. Pope, 9 B. Mon. 261.

If the purchaser receives any part of the redemption money, under an agreement to extend the time of redemption, thereby permitting a partial redemption, he waives his right to a deed, and the certificate becomes merely the evidence of a lien upon the land as security for the payment of the residue of the redemption money. Hughart v. Lenburg, 45 Ind. 498; Spath v. Hankins, 55 Ind. 155; Felton v. Smith, 84 Ind. 485; Southard v. Pope, 9 B. Mon. 261; Ott v. Rape, 24 Wis. 336, 1 Am. Rep. 186.

But where there is merely an agreement to extend the time of redemption beyond the year, and nothing is paid on account of such redemption, the extension does not convert the claim of the purchaser into a security which must be enforced by a new action. The relation of the purchaser to the land remains that of a successful bidder at the judicial sale, with all of the rights secured to such bidder by the

Turpie v. Lowe.

statute governing such sales. We can discover no sufficient reason why an agreement for an extension of the time of redemption should not be sustained. It is not forbidden by any principle of law, and it is highly beneficial to the defendant whose lands have been sold on execution. If it should be held that the legal effect of an agreement for an extension of the time of redemption is to set aside the sale, vacate the judgment, and leave the purchaser a naked right to enforce a lien for the repayment of the amount of the bid and interest thereon, few purchasers at judicial sales would be willing to place themselves at such disadvantage. These views are reinforced by numerous decisions of this court and the courts of other states, in which it is held that an agreement for an extension of the time of redemption will be enforced against the purchaser. Butt v. Butt, 91 Ind. 305; McMakin v. Schenck, 98 Ind. 264; Stephens v. Illinois, etc., Ins. Co., 43 Ill. 327; Pensoneau v. Pulliam, 47 Ill. 58; Davis v. Dresback, 81 Ill. 393.

If such agreements are valid as against the purchaser, they must also be sustained as against the defendant in exe cution. The contract binds the purchaser to a waiver of his right to demand a deed during the time of the extension of the right to redeem. It requires the owner of the land to redeem within that time. If the purchaser is precluded from obtaining a deed during the period of extension, the defendant can assert no right to redeem after the expiration of the time agreed upon. The rights of the parties, respectively, arise out of the contract. The agreement is not to be treated as a legal trap for the purchaser, which holds him fast, while it not only releases the landowner from the particular obligation to redeem within a fixed time assumed by him, but actually excuses him from redeeming the land at all, and compels the purchaser to begin a new suit for the enforcement of his claim. As the right to redeem land from a sale upon execution is

VOL. 158-21

Turpie v. Lowe.

derived from the statute, where the statutory right of redemption is to be exercised, the statute must be strictly pursued. Eiceman v. Finch, 79 Ind. 511; Oldfield v. Eulert, 148 Ill. 614, 36 N. E. 615, 39 Am. St. 231. So, where the period for redemption is either created or extended by contract, the owner of the land or other redemptioner must comply with the terms of the contract, or lose his right to redeem.

If the time for redemption is not fixed and certain, the right must be asserted within a reasonable time, or it will be considered waived. The declaration of the rule in such cases by Lord Chancellor Camden in Smith v. Clay, Ambler 645, 3 Brown's Ch. (Perk. ed.), 640, note, has been generally accepted as a correct statement of the effect of laches : “A court of equity,

has always refused its aid to stale demands, where the party slept upon his right, and acquiesced for a great length of time. Nothing can call forth this court into activity, but conscience, good faith, and reasonable diligence; where these are wanting, the court is passive, and does nothing. Laches and neglect are always discountenanced, and therefore, from the beginning of this jurisdiction, there was always a limitation to suits in this court.” See, also, Williams v. Rhodes, 81 Ill. 571; Fletcher v. McGill, 110 Ind. 395, 406.

An agreement for an extension of the time of redemption, although not in writing, nor supported by any consideration excepting the promise of the redemptioner to pay the amount to become due, with interest, when acted upon by the parties, is not within the statute of frauds. It is said in Butt v. Butt, 91 Ind. 305, 307, that: "A statute which is intended to prevent fraud should not be permitted to be used for its promotion. Arnold v. Cord, 16 Ind. 177; Teague v. Fowler, 56 Ind. 569; Butcher v. Stultz, 60 Ind. 170. Contracts within the statute of frauds are not void, but merely voidable. When fully consummated, they become valid. They become binding when so far executed

Turpie v. Lowe.

that the parties cannot be placed in statu quo. The law, we think, is of universal application that the statute of frauds cannot be invoked for the protection of any right, or undue advantage acquired by a contract not enforceable under its provisions.”

Again, in Schroeder v. Young, 161 U. S. 334, 344, 16 Sup. Ct. 512, 40 L. Ed. 721, the Supreme Court of the United States say, by Brown, J.: “Defendant relies mainly upon the fact that the statutory period of redemption was allowed to expire before this bill was filed, but the court be low found in this connection that before the time had expired to redeem the property, the plaintiff was told by the defendant Stephens that he would not be pushed, that the statutory time to redeem would not be insisted upon, and that the plaintiff believed and relied upon such assurance. Under such circumstances the courts have held with great unanimity that the purchaser is estopped to insist upon the statutory period, notwithstanding the assurances were not in writing and were made without consideration, upon the ground that the debtor was lulled into a false security. Guinn v. Locke, 1 Head 110; Combs v. Little, 4 N. J. Eq. 310, 40 Am. Dec. 207; Griffin v. Coffey, 9 B. Mon. 452; Martin v. Martin, 16 B. Mon. 8; Butt v. Butt, 91 Ind. 305; Turner v. King, 2 Ired. Eq. 132, 38 Am. Dec. 679; Lucas v. Nichols, 66 Ill. 41; McMackin v. Schenck, 98 Ind. 264. In Southard-v. Pope, 9 B. Mon. 261, 264, it is said that 'a refusal by the purchaser to accept the money and permit the redemption to be made within the time agreed would be a fraud upon the defendant in execution, and authorize an application by him to a court of equity for relief.'To the same effect are: Rector v. Shirk, 92 Ind. 31; Cox v. Ratcliffe, 105 Ind. 374.

In the case before us the evidence of the Turpies as to the terms of the agreement between them and Lowe is indefinite and unsatisfactory. James H. Turpie stated that . he and his brother talked about Lowe "buying in this eer

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