SUPREME COURT OF ILLINOIS, 
 
 THIRD GKR^ND DIVISION. 
 
 OTTAWA, APRIL TERM, A. D. 1866. 
 
 FRANKLIN PARMELEB, 
 DAVID A. GAGE, 
 WALTER S. JOHNSON, 
 
 Appellants, 
 
 vs. 
 
 DANIEL LAWRENCE, 
 
 Appellee. 
 
 BRIEF AISTD POINTS FOR APPELLEE. 
 
 F. H. KALES, 
 C. A. GREGORY, 
 
 Counsel for Appellee.
 
 KI r 
 
 SUPREME COURT OF ILLINOIS. 
 
 THIRD GRAND DIVISION. 
 OTTAWA, APRIL TERM. A. 33. 1866. 
 
 FRANKLIN PARMELEE,\ 
 DAVID A. GAGE, 
 WALTER S. JOHNSON, 
 Appellants. 
 
 DANIEL LAWRENCE, 
 
 Appellee. 
 
 Appeal from the Superior Court 
 
 of Chicago. 
 vs. 
 
 BRIEF AND POINTS FOR APPELLEE. 
 
 STATEMENT OF THE CASE. 
 
 On the 15th of September, 1856, the appellants and one Lib- 
 erty Bigelow, who were then partners under the firm name of 
 F. Parmelee & Co., in Chicago, borrowed from Daniel Lawrence, 
 of Medford, Massachusetts, the sum of $50,000, wherewith to 
 erect the buildings known as Garrett Block, in Chicago. (See 
 deposition of Samuel Lawrence, Int 5, p. 98 Abstract : 
 Boyington's deposition, p. 105 Abstract ; Bigelow's deposition, 
 p. 103 ; also averments in the answer to Lawrence's cross-bill, p. 
 40, as to application for a loan ; also admissions in the letters 
 of Bigelow on pp. 102, 103, Abstract.) 
 
 In order to secure to Mr. Lawrence the repayment of the 
 money, they gave him an absolute deed, purporting to convey 
 to him and his heirs the property in fee, with an absolute cove- 
 1
 
 2 
 
 nant of warranty, (for deed see p. 26 of Abstract) ; and took 
 back articles of agreement of like date for the reconveyance of 
 the property, at the end of five years. (For articles of agreement 
 see p. 12 Abstract.) The articles contained a covenant by 
 appellants and Bigelow to pay Lawrence $50,000 with semi- 
 annual interest, at the rate of ten per cent per annum, the prin- 
 cipal to be paid in five equal annual instalments, from October 
 1st, 1856. And Lawrence therein covenanted, that upon receiv- 
 ing such payment, he would reconvey the property to the ap- 
 pellants and Bigelow. Appellants and Bigelow paid interest 
 down to April 1st, 1861, (but none of the principal,) and from 
 that time they made no further payment till long after filing 
 their bill. (For proof, see Samuel Lawrence's deposition, p. 
 102 Abstract, answer to llth interrogatory ; Bigelow's deposi- 
 tion, p. 108, Abstract; answer to 4th interrogatory, etc., Par- 
 ker's deposition, p. 110 Abstract) 
 
 On August 4th, 1863, Bigelow, Gage & Parmelee, filed their 
 bill in chancery, against Lawrence, setting up the articles of 
 agreement, (but suppressing their cotemporaneous deed,) and 
 claimed that the articles constituted a bargain and sale of real 
 estate ; that the relation of vendor and vendee existed between 
 the parties ; that Lawrence covenanted to convey to them the 
 property for $50,000, and interest at ten per cent, free and clear 
 of a\l incumbrances ; they allege readiness, and offer to pay to 
 Lawrence the full amount of principal and interest mentioned 
 in the articles, upon Lawrence conveying to them the land, ac- 
 cording to his covenant in the articles ; that he was unable to 
 make title to the land, and never had the fee thereof ; that by 
 the terms of said articles the whole sum of $50,000 with the 
 interest thereon, excepting what they had paid, was due from 
 them to Lawrence ; that Lawrence had demanded the money 
 of them, and was threatening, in case they did not pay, to eject 
 them by suit at law, unless enjoined, etc., and that by reason of 
 their covenants in the articles, they would be unable to suc- 
 cessfully defend at law. The bill prayed an injunction against 
 Lawrence, to restrain him from instituting any suit for the re- 
 covery of the money, or for the recovery of the premises, etc. 
 The bill was sworn to by one of appellants. The injunction 
 was accordingly issued, and served on Lawrence. (For original
 
 bill of complaint, see p. 1 Abstract ; and for articles see p. 12 
 Abstract) 
 
 Lawrence filed his answer. (See p. 15 Abstract.) He in- 
 sisted : 
 
 1st. That the relation of borrower and lender existed between 
 appellants and him, and denied that the parties bore the rela- 
 tion of vendor and vendee, as alleged in the bill. He averred 
 the loaning of the money by him to appellants, and the making 
 of the deed in fee, etc., to him by appellants, and the giving 
 back of the articles, and that this was a mortgage security., 
 (For averments as to loan, etc., see bottom p. 21 Abstract; for 
 deed, see p. 26 Abstract.) 
 
 He averred, that since receiving the conveyance in fee from 
 them, with the covenant of warranty, etc., he had done or suf- 
 fered no act or thing whereby the title had been impaired or 
 incumbered. 
 
 2nd. He also claimed that appellants were estopped by 
 their deed from questioning the title which they had conveyed 
 to him, and offered to convey to them (upon receiving the 
 money and interest, at ten per cent, as agreed in the articles,)' 
 just such title as they conveyed to him. (Abstract, p. 15 r 
 et seq.) 
 
 Lawrence, upon filing his answer, at the same time filed his 
 cross-bill (see p. 30 Abstract,) against appellants, and the other- 
 parties therein, averring that the relation of borrower and lender 
 existed between the parties, and asking a foreclosure of the mort- 
 gage and a decree for the payment of the principal, which had 
 become due, together with interest remaining unpaid, at the' 
 rate of ten per cent, as had been agreed by said articles, and as- 
 had thereby been charged upon the land by way of security for 
 the repayment of such interest and principal. 
 
 The cross-bill prayed, generally, such relief as was proper ; 
 for a decree for payment of the money, and in default, a sale 
 of the land, etc. (See prayer, pp. 38 and 39 of Abstract) The 
 appellants and Bigelow answered the cross-bill, (see p. 40 Ab- 
 stract), and by their answer claimed : 
 
 1st That the relation of vendor and vendee of the land 
 existed between the parties, as they had affirmed in their 
 original bill. 
 
 2nd. That by reason of the form of the writings ultimately
 
 signed by the parties, Lawrence was estopped from claiming 
 that the transaction was a loan and mortgage and from denying 
 that it was an agreement to sell them the land. (See p. 41 
 et leq. of Abstract.) 
 
 3rd. They further set up, by way of defense, (see p. 48 
 el seq.,) that if the court should be of opinion that the relation be- 
 tween the parties was that of borrower and lender, then the loan 
 was upon an usurious rate of interest, and specifically claimed 
 a forfeiture of threefold the usurious rate reserved ; and they 
 here for the first time, alleged that the rate of interest was twelve 
 per cent, and not ten per cent, as they had theretofore, in the 
 original bill alleged ; and that the entire agreement concerning the 
 interest was in writing, and appeared from the papers ; and for the 
 first time they allege that, in addition to the agreement in the 
 articles, to pay ten per cent, interest, they also gave personal 
 security to Lawrence in the shape of their bond, conditioned to 
 deliver to him, on Oct. 1st, 1857, their notes, payable in six and 
 twelve months, for such sum as the interest, at ten per cent 
 per annum, should amount to, on all money remaining unpaid 
 on said Oct. 1st, and likewise, on each successive Oct. 1st, until 
 the whole sum should be paid. (See p. 51 Abstract, and for 
 bond itself, see p. 62 Abstract) 
 
 They allege that they paid twelve per cent, interest, to April 
 1, 1861. Lawrence iiled his exceptions to this answer, which 
 were overruled, and thereupon he excepted to the ruling of the 
 court (See p. Eecord.) The proof was, that they gave such 
 notes up to and inclusive of Oct. 1st, 1860, after which time they 
 gave no further notes, and that they paid the ten per cent and the 
 two per cent additional up to April 1, 1861 ; after that time all 
 parties, as it appears, ignored and abandoned the two per cent, 
 arrangement (See Bigelow's dep., p. 109 Abstract) There is 
 no evidence of any notes given after Oct. 1,1860. (See exhib- 
 its Nos. 4 and 5, p. 112 Abstract) (For proof of this abandon- 
 ment, see p 102 and 103 Abstract, letters dated Oct. 10, 1861, 
 and Nov. 25, 1861, written by Bigelow, and the fact that no new 
 notes were given or demanded, and no more interest whatever 
 
 o 
 
 paid, after April, 1861, and no demand was ever made by Law- 
 rence for the two per cent)
 
 SUPPLEMENTAL BILL. 
 
 On the 24th of Sept. 1864, Bigelow, Gage & Parmelee filed, 
 in this cause, their supplemental bill, wherein they set up that, 
 on the 12th day of August, 1864, at Boston, Mass., Bigelow 
 had a settlement with Lawrence, of the moneys due Lawrence 
 under the articles, and that Bigelow paid Lawrence $22,557, in 
 full satisfaction of Bigelow's share, and that Lawrence then and 
 there, without the knowledge or consent of the appellants, 
 executed, under his hand and seal, and delivered to Bigelow, the 
 following instrument (See p. 76 Abstract.) 
 
 Received, Boston, August 12th, 1864, twenty-two thousand five hundred 
 fifty-seven dollars, of Liberty Bigelow, in full payment of his portion of all 
 money due me on Articles of Agreement between myself, him, (said B.) F. 
 Parmelee, D. A. Gage and W. S. Johnson, dated September 15, 1856, and 
 recorded in the recorder's office of Cook County, Illinois, October 17th, same 
 year, in book 171 of Deeds, page 71; and I release and discharge said Bigelow, 
 his property and estate, from all claims on account of the same. 
 
 If the property mentioned in the above articles has to be sold under any 
 order of the Court at Chicago, the interest of said Bigelow in it is to be pro- 
 tected according to this settlement. Nothing herein contained shall in anywise 
 affect my rights or demand against said Parmelee, Gage or Johnson, or their 
 interest in said property. 
 
 [U. S. Rsoenue Stamp.] DANIEL LAWRENCE. [Seal.] 
 
 They claimed that, since their covenants in the articles were 
 joint covenants, therefore this agreement and receipt to Bigelow 
 was a satisfaction, in law and in fact, of all the moneys due 
 Lawrence. They prayed the relief prayed in their original bill, 
 and further, that their covenants in the articles be decreed to 
 be discharged, and that they might be decreed discharged from 
 all claims of Lawrence for money upon the articles, and that 
 Lawrence reconvey, etc., and discharge all lien of record, 
 etc. (See p. 76 Abstract, for prayer for answer.) 
 
 The answer of defendant Lawrence was required by the com- 
 plainants without waiving his oath. Afterward, on 'Dec. 3rd, 
 1864, Lawrence filed his answer (see Abstract, p. 84 et seq.,) to 
 the supplemental bill, under his oath, and denied that any 
 such settlement was made as alleged, and absolutely denied that 
 the seal on the receipt to Bigelow was his seal ; or that he in 
 any way authorized the putting on of a seal, and declared that 
 the document was without seal when he signed it, and did hot 
 purport in any way to have a seal. He also set forth the cir-
 
 6 
 
 cumstances accompanying his acceptance of the money from 
 Bigelow, and the signing of the receipt to him, which showed 
 that Bigelow, by false and fraudulent representations, had en- 
 deavored to induce him to give such an instrument as might, as 
 Bigelow and his counsel supposed, work a release of all the 
 parties against his (Lawrence's) intention. He denied that the 
 instrument did operate to release appellants. He averred that 
 he was ignorant of the rule of law in Illinois, respecting the 
 operation of such a cjualified discharge, and that Bigelow rep- 
 resented to him that it would not discharge his partners, or 
 affect his rights against their interest in the land. He admitted 
 the receipt of $22,557 as paid by Bigelow, under the admission 
 of Bigelow that the transaction was a loan and mortgage, and 
 under the claim of Bigelow, that this was his proportion as be- 
 tween him and his partners, and admitted the giving to Bigelow 
 of a receipt, the same as the copy set out in the supplemental 
 bill, exclusive of the seal. (See pp. 84 93 of Abstract.) 
 
 The facts relating to this so-called release, as they appear 
 from the sworn answer of Lawrence, and from the testimony 
 of the witnesses, are, that about the first part of August, 1864, 
 Bigelow sought out Lawrence and had divers interviews with 
 him in order to induce Lawrence, as Bigelow declared, to re- 
 ceive from him (see p. 121 Abstract, McAllister's testimony, 
 corroborating also the sworn answer of Lawrence, which see, 
 passim, p. 40 et seq., Abstract,) such portion of the money 
 borrowed by the appellants and Bigelow, together with his 
 (Bigelow's) share of the interest remaining due, as justly be- 
 longed to him to pay, as between him and appellants ; but to 
 have Lawrence receive the money without prejudicing or 
 affecting his rights or demands against the appellants, and 
 without affecting his rights against their interest in the land 
 held as security, Bigelow claiming to Lawrence that the trans- 
 action was a loan and mortgage, and that his share to be paid 
 as between himself and his partners, was $22,557, and that 
 Bigelow then offered to pay the money to Lawrence without 
 prejudice to the rights of Lawrence against the other parties, or 
 their interest in the land, if Lawrence would receive it, and 
 save Bigelow harmless in respect of the residue, and protect 
 his interest in the premises accordingly, in case the court should 
 afterward order the land sold. (See McAllister's testimony on
 
 cross-examination, p. 124, et seq., Abstract ; also, see sworn 
 answer of Lawrence, p. 87 et seq., Abstract.) 
 
 That Lawrence expressed his willingness to accede to these 
 proposals, and on such conditions accepted the sum of $22,557 
 from Bigelow, on Aug. 12, 1864. and at Bigelow's request 
 signed an instrument which Bigelow then and there represented 
 to Lawrence that he could sign without in any way invali- 
 dating his claim to the residue of the money, or his security 
 upon the land. (See Lawrence's sworn answer, p. 87 et seq.) 
 
 It also appears from the proof, that the so-called release was 
 one of many instruments whicht had been successively drawn 
 up by Bigelow and his counsel, between August 1st and 12th, and 
 in the absence of Lawrence ; that such instruments were absolute 
 technical releases with seals, and purporting in the body thereof 
 to be under seal ; each in turn at different times had been pre- 
 sented to Lawrence by Bigelow to sign when he should receive the 
 money ; that Lawrence declined to sign any of them, upon the 
 ground that they did not express the agreement between him 
 and Bigelow upon which the money was to be accepted, i. e., 
 that his (L.'s) rights as against the other parties and their 
 interest in the land should not be affected by the settlement with 
 Bigelow. (See McAllister's cross-examination, p. 125 ; 10th 
 cross-interrogatory and answer, et seq. ; 15th cross-interrogatory, 
 p. 125 ; 16th, 17th and 18th cross-interrogatories, p. 126 ; 22nd 
 cross-interrogatory, p. 127 Abstract ; Lawrence's sworn answer, 
 p. 84, et seq.) 
 
 It appeared that the so-called release had a yellow seal 
 (post-office paper cut diamond shape) upon it, before it was 
 signed and while it was unsigned ; that the seal was pasted to 
 the paper and then handed to Bigelow ; that Bigelow wrote 
 upon it the word "seal." (Abstract, p. 122.) 
 
 It further appeared that the release which was produced in 
 evidence, had a yellow seal made of post-office paper cut dia- 
 mond shape, and bore upon it the letters seal in the hand- 
 writing of one Chapman, (see Chapman's deposition, p. 141 
 Abstract, p. 143, et passim ; see deposition of appellant's wit- 
 ness, Phillips, p. 120, corroborating Chapman,) who, as scribe for 
 Bigelow, wrote the instrument, and who, after Lawrence signed 
 it, and in his absence and without his consent or knowledge, 
 and at the request of Bigelow, cut out the identical pr^rser 1
 
 8 
 
 which at the trial appeared upon the release produced by appel- 
 lants, and pasted it upon the release, and wrote with his own 
 hand the word " seal " on the yellow diamond, and identified 
 the seal and paper produced as his handwriting. (Answer to 
 14th interrogatory, p. 143, et passim; see also examination by 
 the Court, p. 160 Abstract.) 
 
 It was proved that the so-called release was signed and de- 
 livered in Boston, Mass., and the money paid in Boston, and 
 also proved that the rule as to the construction of such qualified 
 discharges laid down in the case of Solly v. Forbes, 2 Brod. and 
 Bing., p. 36, is adopted in Massachusetts, as appears from the 
 case of Wiggin v. Tudor, 23 Pick, pages 434 445 ; cases intro- 
 duced in proof, under stipulation. 
 
 The case was heard before the Hon. John M. Wilson, upon 
 the pleadings and proofs. The final decree was rendered on the 
 12th of January, 1866, and is printed at length in the Abstract, 
 pages 162171. 
 
 The Court decreed that Lawrence was entitled to the amount 
 of unpaid principal with interest on the same at six per cent, 
 after April 1st, 1861 ; that the payment of all the interest up 
 to that time was a voluntary payment by appellants, and that 
 they could not recover back the same, nor apply the same in 
 reduction of the principal ; ordered payment of the money, and 
 a foreclosure sale in default ; ordering that Bigelow's interest in 
 the property be protected in case of sale. The Court found 
 that the so-called release was only an agreement on the part of 
 Lawrence not to further charge Bigelow ; but under the circum- 
 stances did not operate to discharge the appellants. 
 
 The Court protected Johnson in accordance with the request 
 of the appellants and Bigelow ; it appearing that Johnson had 
 sold out to the other partners and they had agreed to indemnify 
 him. 
 
 The original complainants took an appeal, assigning errors as 
 on page 172, et seq., of Abstract, It was contended below, on 
 the part of Lawrence, that he was entitled to ten percent, inter- 
 est from April 1st, 1861, on the principal ; the amount Bigelow 
 paid, it was admitted, might be treated as a payment on account, 
 this being most favorable to appellants. 
 
 The appellee complains that the Court erred in allowing to 
 the appellants a reduction of interest from ten to six per cent.,
 
 9 
 
 for that, by law, upon the contract he was entitled to ten per 
 cent, the rate tendered in the original bill; and because the 
 fraud and oppression practiced by appellants in bringing the 
 appellee into a court of equity upon a false ground of complaint, 
 entitled them to no abatement from the contract rate of ten per 
 cent, by reason of any equitable considerations. 
 
 Judge Wilson's opinion filed in the case, and referred to in 
 the decree, is printed at the end of this brief, as it presents a 
 comprehensive summary of the whole case. 
 
 The principal questions that arise in the case, are : 
 
 1st, Whether under the circumstances of this case, Lawrence 
 is a mortgagee or a vendor of the land ; and, in either case, 
 whether he is not entitled to his decree. 
 
 2nd. Whether the appellants are entitled in equity to recover 
 back the usurious interest already paid. 
 
 3rd. Whether the appellants should not pay interest at the 
 rate of ten per cent, per annum from April 1, 1861. 
 
 4th. Whether, in equity, the so-called release of Bigelow 
 discharged the appellants. 
 
 POINTS. 
 
 I. The deed of appellants of September 15, 1856, and the 
 articles of agreement of the same date for the reconveyance of 
 the land to appellants, are a mortgage. 
 
 The appellants and appellee met upon the footing of bor- 
 rower and lender. The loan was actually made. The appel- 
 lants admitted, down to the time they filed their bill, that the 
 transaction was a loan and mortgage. 
 
 Delahay v. McConnel, 4 Scam. 157. 
 
 Coates v. Wood worth, 13 111. 654. 
 
 Miller v. Thomas, 14 111. 428. 
 
 Smith v. Sackett, 15 111. 528. 
 
 Davis v. Hopkins, 15 111. 519. 
 
 Williams v. Bishop, 15 111. 554. 
 
 Tillaon v. Moulton, 23 111. 648. 
 
 Wyncoop v. Cowing, 21 111. 570. 
 
 Shaver v. Woodward, 28 111. 277.
 
 10 
 
 The form in which the contract in this case was reduced to 
 writing, is not inconsistent with a contract of loan and mort- 
 gage ; therefore Lawrence is not estopped to insist that such was 
 the character of the transaction. 
 
 See cases last above cited. 
 
 Hence Lawrence, being a mortgagee of the land, was 
 entitled to a decree for foreclosure. 
 
 The form of the decree, however, in this case is not inconsis- 
 tent with the relation of vendor and vendee, and it is decided 
 in the case of Smith v. Moore, 26 111. 393, that a vendor of land 
 is for some purposes to be treated as an equitable mortgagor. 
 So that, even if the appellants' theory of the case, that Law- 
 rence is a vendor of the land, were true, still he would be entitled 
 to the decree for a sale of the premises, in case of non-pay- 
 ment by the vendees. 
 
 II. The appellants are estopped by their deed of Sept 15, 
 1856, to allege such a want of title in Lawrence as would render 
 him unable to perform his covenant to sell and convey them 
 the land free and clear of incumbrances. 
 
 Hence, there was no error in the court deciding that, under 
 the articles of agreement of Sept. 15, 1856, Lawrence was not 
 bound to convey to the appellants any other or better title than 
 he derived from the appellants ; nor was there any error in the 
 Court deciding that since Lawrence was a mortgagee of the 
 land, it was a sufficient compliance with his contract for him to 
 release to the grantors in the deed, or their assigns, such title as 
 he obtained from them, with covenants against his own acts 
 only. 
 
 The appellants contend that Lawrence agreed to convey to 
 them a fee simple estate in all the land free from incumbrances ; 
 they then insist that they had only an estate for years in a part 
 of the land, and that by their deed they conveyed to Lawrence 
 only such estate as they had. It is only on such a construction 
 of their deed as they now contend for, that they base the eighth 
 and ninth assignment of errors. 
 
 It is easy to demonstrate that the deed and articles of agree- 
 ment of Sept. 15, 1856, will bear no such construction as the 
 appellants now insist upon.
 
 11 
 
 The deed of appellants purports to convey the fee of the 
 land to Lawrence, and contains a covenant of warranty ; it does 
 not purport to convey the right, title and interest of the 
 grantors. A deed should be construed according to the inten- 
 tion of the parties as manifested by the entire instrument- 
 Now here the subject-matter of the grant is the land itself, and 
 not merely such title as the grantors had therein. The words 
 of grant are, " have granted," etc., " and by these presents do 
 grant bargain, sell, remise, release, convey, alien and confirm, 
 unto said party of the second part and to his heirs and assigns, 
 forever, all the following described lots, pieces or parcels of 
 land," etc.; and the habendum is "to have and to hold the said 
 premises above bargained and described, with appurtenances, unto 
 the said party of the second part, his heirs and assigns forever." 
 Thus by the habendum, Lawrence would take an estate in fee. 
 (4 Greenlf. Cruise, 273, sec. 7375 ; and 274, sec. 84) The 
 appellant's construction of the deed would render the habendum 
 repugnant to the granting clause. But every deed, if possible, 
 will be so construed as that all parts shall operate, and be 
 harmonious. Neither in the granting clause, nor in the haben- 
 dum, is there any limitation of the duration of the estate, hence 
 the estate granted is a fee simple ; it is in contemplation of 
 law, an estate forever. 
 
 The covenants are as follows : "And the said parties of the 
 first part, for themselves, their heirs, executors and administrators, 
 do covenant, grant, bargain and agree to and with the said 
 party of the second part, his heirs and assigns, that the said 
 above described premises are free and clear from all former and 
 other grants, bargains, sales, liens, taxes, assessments and incum- 
 brances of what kind soever, except the said lease and articles 
 of agreement above-mentioned, and the above bargained 
 premises in the quiet and peaceable possession of the said party 
 of the second part, his heirs and assigns, against all and every 
 person or persons lawfully claiming or to claim the whole or 
 any part thereof, the said parties of the first part shall and will 
 warrant and forever defend." 
 
 Here the inquiry may be made as to what the word premises 
 refers to as used in this deed. In each case where the grantors 
 use the word they themselves define the premises to mean the 
 land the thing granted thus in the habendum, they speak of
 
 12 
 
 the "said piemises above bargained- and 'granted" so also in the 
 covenants they speak of the above described premises, and the 
 above bargained premises. Words'should always be understood 
 with reference to the subject-matter and the connection in which 
 they are used. In this case the grantors used the word in such 
 a connection that we can only understand by it the land itself; 
 and this use of the word premises is most common in deeds. 
 2 Washburn on Real Prop. 641, and cases cited. 
 Mills v. Catlin, 22 Yt. 99. 
 
 If we refer now to the articles of agreement executed simul- 
 taneously with the deed in question, we shall find that our con- 
 struction of this deed is verified by the recitals therein. In 
 the articles, the parties who are the grantors in the deed, recite 
 that the land therein described is the same land conveyed by them 
 to Lawrence, " by deed bearing even date herewith ;" by this re- 
 cital alone they are estopped to say that they did not convey 
 the land itself to Lawrence. 
 
 Douglass v. Scott, 5 Ohio, 104. 
 
 2 Smith's L. C. (Am. Ed.) 536. 
 
 Van Rensselaer v. Kearney, 11 Howard, 324 et seq. 
 
 But especially as to the force to be given to the words in the 
 granting clause;-- the habendum, and the covenants in this deed, 
 I desire to cite the Court to the case of Mills v. Catlin, 22 Yt. 
 99, as fully decisive of the point raised by the appellants. 
 
 The subject-matter of the grant in a deed may be considered 
 in two aspects : 
 
 1. As respects the quantity of the the thing granted, i. e., 
 whether 1 or 100 acres, etc. 
 
 2. As respects the quality of the estate in the thing granted 
 i. e., whether an estate for years, or a fee simple, etc. > 
 
 Now the rule of law is, that if the granting clause of the 
 deed clearly defines a certain quantity of land, or a certain 
 quality of estate, no subsequent language of the deed of 
 doubtful import shall operate to diminish the one or the other. 
 
 Mills v. Catlin, 22 Yt. 99. 
 Ela v. Card, 2 N. H. 175. 
 
 And the rule of construction is, that if the granting clause, 
 the habendum, and the covenants, can all be construed so as to be
 
 13 
 
 coextensive and harmonious, they shall be so construed ; that 
 is to say, no such construction will be put upon a deed as will 
 render any of its parts repugnant to, or inconsistent with any 
 other part, if it can be avoided. 
 
 4 Greenleaf 's Cruise, 275, sec. 85. 
 
 With these principles in mind, the construction of the deed 
 in question is most plain. 
 
 A deed purporting to convey the whole title, though without 
 warranty, estops the grantor and his privies, as to the legal 
 title. 
 
 Carter v. Chandron, 21 Ala. 72. 
 
 2 Smith's L. C. (Am. Ed.) pp. 535 and 551. 
 
 The covenant of warranty estops the appellants to set up a 
 title as against Lawrence. 
 
 Van Hensselaer v. Kearney, 11 Howard, 317, 322, 
 
 citing many cases. 
 Kellogg v. Wood, 4 Paige Ch. 614. 
 4 Greenleaf 's Cruise, 378, (side page) note to sec. 51. 
 
 But the appellants contend that the clause in the deed which 
 is in substance as follows, to wit : " The said above described 
 property being subject in this grant to the rents and conditions 
 provided for and imposed in and by a certain lease made by 
 James Crow and Thomas Crow, parties of the first part, and 
 Theodorus Doty, and Daniel Andrews, parties of the second 
 part therein, and bearing date the tenth day of October, 1853, 
 recorded, etc. ; and also to the payments to be made in and by 
 certain articles of agreement, dated Aug. 1, 1855, between 
 F. T. Flagler, of the first part, and F. Parmelee, of the second 
 part therein, for the sale by said Flagler to said Parmelee, of 
 part of the above described premises, recorded, etc. ; which 
 said lease and articles of agreement, and the money thereby- 
 required to be paid, are to be kept performed and paid by the 
 said Liberty Bigelow, Walter S. Johnson, David A. Gage, and 
 Franklin Parmelee, parties of the first part, or their heirs or 
 administrators," makes the entire grant of the land, and makes 
 the covenants of the deed subject to the Crow lease and the 
 Flagler agreement
 
 14 
 
 Upon the principles and authorities already stated, this 
 proposition of the appellants is repelled. 
 
 By the construction insisted upon by the appellants, this clause 
 is an attempt to limit the duration of the estate of fee simple, al- 
 ready, as we have seen, granted by the granting clause, pointed 
 by the habendum, and warranted in the quiet and peaceable 
 possession of the grantee, and his heirs and assigns forever, by 
 the covenant And cotemporaneously the grantors were to be, and 
 did become, by force of the agreement, of even date, their 
 own assigns. 
 
 The fee simple is the entire and absolute interest and prop- 
 perty in the thing granted, and when one has once granted it, 
 he can make no further disposition of it He may, however, 
 grant it upon condition. (1 Greenleaf's Cruise, 55.) But 
 he cannot, in a deed, grant the fee, and in the same deed 
 say that he means thereby only to grant such estate as he has, 
 or only an estate for years ; e. g., thus it is stated in Brook's 
 Abr., that if a feoffment in fee be made to W. N., during the 
 life of J. S., the words " during the life of J. S.," would be 
 rejected because they were contrary to the fee. 
 
 4 Greenleaf's Cruise, (side page) 247, sees. 25, 26. 
 
 Even if it were doubtful upon this deed whether the grantors 
 intended to grant the fee, or only an estate for years, in such a 
 case the rule that the deed must be taken most strongly against 
 the grantors, settles the doubt in favor of the fee. 
 
 4 Greenleaf's Cruise, 245. 
 
 2 Blk. Com. 380. 
 
 The true import of this clause is, that it is a mere recital of 
 the condition of the title, to give point to the covenant of 
 the grantors, inserted in this very clause, to pay the rents and 
 keep the terms of the lease and the Flagler agreement, and 
 also to give point to the exception in the covenant against 
 incumbrances. 
 
 The position of the appellants, in this respect, is not even 
 plausible. The clause cannot operate as an exception, or res- 
 ervation, or limitation, or condition ; and if not in one of these 
 ways, then only as recital, as we have said. 
 
 An exception is a withdrawing by the grantor from the effect
 
 15 
 
 of the grant some part of the thing itself which is in esse and 
 included under the general terms of the grant, as one acre from 
 a certain field, etc. 4 Greenlf. Cruise, (side page) 271, sec. 66. 
 An exception cannot touch the quality of the estate. 
 
 A reservation is something made to the grantor, and is some- 
 thing created or reserved, issuing or coming out of the thing 
 granted, and not a part of the thing itself, e. g., it pertains to 
 rents, easements, privileges, etc. ; it does not touch the quality 
 of the estate granted. 4 Greenlf. Cruise, chap. 25, sec. 1. 
 
 A fee may be granted upon a condition ; and if we under- 
 stand the appellants in their too profound analysis of this branch 
 of the case, they contend that this clause operates as a condi- 
 tion, to wit, the estate is granted on the condition that the 
 grantors or the grantee shall yield up the premises to the lessors 
 in the Crow lease in 1874. If such be the force of the cove- 
 nant of the grantors in this clause of the deed, i. e., that they will 
 yield up the premises to the lessors in 1874, the covenant 
 would be void as repugnant to the grant. In such a case it 
 would be impossible to give effect to the granting words which 
 convey an estate in perpetuum, and at the same time to give 
 effect to the covenant. 
 
 The covenant must yield to the granting clause, or the grant- 
 ing clause to the covenant ; one is clearly repugnant to the 
 other. The rule is, that where clauses are repugnant and in- 
 compatible, the earlier prevails. 
 
 Shep. Touch. 88. 
 
 2 Pars, on Comrafc- 5V 7, J^- ' '- 
 
 " A condition repugnant to the nature of the estate to which 
 it is annexed, is void in its creation." (2 Greenlf. Cruise, sec. 5.) 
 A condition, says Cruise, cannot frustrate the grant precedent 
 (Ib. 5 ; 4 Kent's Com. sec. 131.) 
 
 So, where a lease was made to A, B & C, subject to this ex- 
 press condition that if C should demand any profits of the land, 
 or enter into the same during the life of A or B, that then the 
 estate limited to C should cease and be utterly void. It was 
 resolved that this was a condition, and was void, being repug- 
 nant to the estate limited. 
 
 2 Greenlf. Cruise, 5.
 
 The only other questions upon the deed, arise upon the cov- 
 enants. The position of the appellants that the covenants are 
 subject to the conditions and terms recited in the clause above 
 referred to, is untenable. 
 
 Neither the Crow lease nor the Flagler agreement can be set 
 up by the appellants as incumbrances, for the reason that the 
 appellants, (grantors to Lawrence,) covenant, both in their deed 
 and their articles of agreement, to perform all the terms and 
 conditions of both the Flagler agreement and the Crow lease. 
 Watts v. Wettman, 2 N. H. 458. 
 
 Neither is it the law, as supposed by appellant's counsel, that 
 a qualified covenant against incumbrances is a limitation of a 
 covenant of warranty. The exception contained in the cove- 
 nant against incumbrances, does not extend to the covenant of 
 warranty. 
 
 Estabrook v. Smith, 6 Gray, 572. 
 Sumner v. Williams, 8 Mass. 214 
 Howell v. Richards, 11 East, 633. 
 
 We have shown even if Lawrence is to be regarded as a 
 vendor of the land, that his covenants are rebutted by the cov- 
 enants of the appellants. But the deed and the Articles are to 
 be read together in the light of the fact that the transaction was 
 a loan of money, and that these two writings were intended as 
 a contract for a mortgage security. In another part of this 
 brief we have cited the authorities to show what are the rights 
 of the parties to such a contract, in form absolute, but intended 
 as a security merely. And the law attaches to this relation of 
 mortgagor and mortgagee certain absolute rights and duties upon 
 the part of the respective parties ; and these are : the right of the 
 borrower, upon paying the debt and interest, to receive back his 
 land unimpaired by any act of the mortgagee, and the duty of 
 the mortgagee to reconvey only the title thereto which he 
 received as security. 
 
 2 Spence Eq., p. 618. 
 
 III. By the common law, parties were allowed to receive 
 such rate of interest as was agreed upon in the contract of loan ; 
 and usury statutes are but limitations or restrictions of this
 
 17 
 
 right Such statutes are generally penal, and sometimes pro- 
 hibitory in their character. In some instances they afford a 
 remedy to the borrower to recover back usury already paid. 
 
 A statute merely penal, only operates upon the remedy ; and 
 must have been in force when the suit is brought, as well as 
 when the contract was made. A statute not penal, but only of 
 a prohibitory character, operates upon the contract ; and where 
 a usury statute, for its violation, does not declare the interest 
 contract void, it only operates upon the prohibited excess 
 reserved beyond the rate permitted ; and if in force at the time 
 the contract is made, fixes the rights of the parties, whether 
 afterwards repealed or not. 
 
 1. The interest laws of Illinois in force in 1845, were penal 
 in their character, and not prohibitory statutes. (Sec. 4.) 
 They likewise gave the borrower a remedy to recover back 
 threefold the usury paid, by action or bill, within two years. 
 (Sec. 6.) The Act of 1849, standing alone, was prohibitory in 
 its character, and not penal. This Act limited the contract rate 
 for money loaned to ten per cent. ; but while the penal provi. 
 sions of the Act of 1845 yet remained in force, unrepealed, 
 both Acts were construed to be in pari materia, leaving the 
 penalty provided in the 4th section of the Act of 1845, still in 
 force. (Kinsey v. Nisky, 23 111. 505.) By the interest Act of 
 1857, all of the penal provisions of the interest laws of 1845 
 were expressly repealed ; thereby leaving the Act of 1849 
 alone to govern the rights of borrower and lender, in cases 
 where the contract was made between 1849 and 1857, but upon 
 which legal remedies were sought after 1857. 
 
 The case now presented for the consideration of the court, is 
 of this class. The contract of loan was made in 1856. The 
 rate reserved by contract, was twelve per cent per annum 
 The usury was paid until April 1st, 1861 ; and suit was 
 brought in August, 1863. Had not the Act of 1857 repealed 
 the penalties of the Act of 1845, the rule established in the 
 case of Kinsley v. Nisley, would govern this case. 
 
 The penalties of the latter Act, although in force when the 
 contract was made, created no vested right in the borrowers. 
 These penalties were under the control of the legislature, and 
 2
 
 18 
 
 their repeal before suit brought, deprived the borrowers of all 
 benefit thereof in this case. 
 
 Seegar v. Seegar, 19 111. 121. 
 
 Yeaton v. The United States, 5 Cranch. 281 3. 
 
 Butler v. Palmer, 1 Hill, 330. 
 
 The question of usury in this case, is, therefore, to be gov- 
 erned by the Act of 1849, standing alone. That Act is not 
 penal ; but where there is a contract, it is prohibitory as to the 
 excess thereby reserved beyond ten per cent. Where the 
 defense of usury is made under this Act, and it appears that 
 the consideration of the contract was money loaned, the lender 
 is constructively entitled to recover, as the legal rate of interest, 
 the rate agreed upon by the parties, not exceeding ten per cent, 
 per annum. 
 
 Sees. 1 and 2, Act of January 30, 1849. 
 
 Matthias v. Cook, 31 111. 83. 
 
 Smith v. Stoddard, 10 Mich. 148. 
 
 Nichols v. Stewart, 21 111. 106. 
 
 This Act enters into the contract to prohibit the recovery of 
 the excess, when the defense of usury is insisted upon by plea. 
 The Act only reaches the unexecuted portion of the contract ; 
 it gives no remedy at law or in equity to the borrower to 
 recover back usury already paid ; nor can it be reclaimed by 
 way of set-off, or otherwise, when voluntarily paid. 
 
 Hadden v. Innes, 24 111. 381. 
 
 TompTcins v. Hill, 28 111. 519. 
 
 Carter v. Moses. Opinions of this court, April 
 term, 1864, and April term, 1865. 
 
 It is not necessary to consider in this case, whether the appel- 
 lants, under the sixth section of the interest law of 1845, could 
 recover back the usury already paid, by action or bill, because 
 they have filed no bill for that purpose ; and more than two 
 years had elapsed after the last payment of usury, before this 
 suit was instituted. 
 
 2. Under the statutes of 1845 and 1849, the defense of usury 
 was a mere privilege, and waived, if not specially pleaded. 
 (Smith v. Whitaker, 23 111. 367, and cases there cited ; and
 
 19 
 
 Hadden v. Innes, 24 111. 381.) In actions upon contracts made 
 since the statute of 1857, it is not necessary to plead specially 
 the defense of usury. The statute of 1857 acts directly upon 
 the usurious contract, limiting the amount of the recovery to 
 the principal sum due, without regard to the form of pleading. 
 It is prohibitory as well as penal ; but it has no bearing in this 
 case beyond its effect in expressly repealing the penalties enacted 
 by previous statutes. 
 
 Upon these principles, had Lawrence been plaintiff in a suit 
 at law, to recover damages for the breach of the contract of the 
 appellees in not repaying the money loaned to them, he would 
 have been entitled not only to retain the usury voluntarily paid ; 
 but also under the contract to have recovered interest at the 
 rate of ten per cent per annum from April 1, 1861. 
 
 Such was the rule understood to be established by this court 
 in the case of Matthias v. Cook, where the contract was made 
 while the statutes of 1845 and 1849 were in force, but upon 
 which suit was not brought until after the penalties of the 
 statute of 1845 had been repealed by the Act of 1857 ; and 
 therefore of the same class as the case now before the court 
 
 IV. In equity, the statutes against usury are enforced, but 
 in subordination to the rule that he who seeks equity must 
 offer to do equity. That court does not enforce the penalties 
 unless expressly required by the statute to do so. 
 
 1. The borrower when seeking the aid of a court of equity, 
 is limited to two modes of taking advantage of usury : 
 
 1st, To offer the amount actually due, with so much of the 
 interest agreed upon as is not prohibited by the statute ; and if 
 all the interest is in effect declared void for usury, then to offer 
 the amount due, with interest, at the rate fixed by law, as in 
 cases where no rate is agreed upon by contract. 
 
 Ferguson v. /Sutphen, 3 Gilm. 570. 
 
 2nd, To insist upon the penalties, when the statute permits 
 this to be done in equity. 
 
 Int Laws, 1845, sec. 6, chap. 54. 
 
 In regard to usurious contracts made in this State, and not 
 governed exclusively by the Act of 1857, it is necessary in
 
 20 
 
 equity as well as at law, that the question of usury should be 
 raised by the pleadings. And where the borrower asks the aid 
 of a court of equity merely to enforce the statutory penalties, 
 and without offering to do equity, as in this case, that court will 
 not allow him the benefit of the usury question. It will treat 
 the question as not raised, and thereby leave the statute to 
 operate upon the prohibited excess of interest reserved by the 
 contract, as well as permit the lender to retain the benefit of 
 the usury already voluntarily paid to him ; thus leaving the 
 borrower to stand as he would in a court of law. 
 
 2. In equity, the principles before stated will, a fortiori, 
 govern in a case where the borrower, with the design of gaining 
 an undue advantage over the lender, has knowingly attempted 
 to pervert or conceal the true character of the contract. 
 Metropolitan Bank v. Godfrey, 23 111. 604. 
 
 The appellants conceived and exhibited their original bill in 
 bad faith. In that bill, filed in August, 1863, and sworn to by 
 one of them, they admitted the existence of the debt to Law- 
 rence of $50,000, and that it drew interest at the rate of ten 
 per cent, and that they had paid the interest to April, 1861 ; 
 but they concealed from the court that the consideration of the 
 debt was money loaned to them by Lawrence, to secure the re- 
 payment of which they had given him an absolute deed, with 
 full covenants of warranty, and taken back a contract for recon- 
 veyance ; they set forth only the contract of Lawrence to con- 
 vey to them the land they had deeded to him ; they thus color- 
 ably made it appear that Lawrence was their vendor, while he 
 was in fact their mortgagee of the land ; they then alleged that 
 Lawrence never had title, and could not convey as he had 
 agreed to do ; that as soon as he could convey to them the title, 
 free and clear, they were ready and willing to pay the debt and 
 ten per cent interest ; they further alleged that they had ex- 
 pended a large sum for improvements on the land, but sup- 
 pressed the fact that this was done with the money loaned them 
 by Lawrence ; and finally, they alleged that Lawrence was 
 about to eject them from the land unless they paid the debt and 
 interest 
 
 In this bill the appellants made no claim in regard to usury, 
 or to any agreement whereby more than ten per cent had 
 orisrinally been reserved.
 
 21 
 
 The bill, as framed, considered by the light of the evidence, 
 was an adroit attempt to enable the appellants to keep the 
 money borrowed, and expended on the land ; and also to pre- 
 vent Lawrence from resorting to the land taken by him as 
 security for the loan. 
 
 Lawrence, in answering the bill, stated the true character of 
 the contract between him and the appellants, and claimed to 
 hold the land only as a mortgage security for money loaned ; 
 and insisted upon his right to foreclose. 
 
 To avail himself of the full benefit of the defense thus set 
 up, he also filed his cross- bill praying foreclosure for the amount 
 of the debt then long overdue, and asking interest at the rate 
 of ten per cent. 
 
 The appellants, in answer to the cross-bill, substantially 
 confessed that Lawrence was only a mortgagee, and then, for 
 the first time, claimed that the loan was usurious, in that the 
 rate originally reserved was twelve and not ten per cent per 
 annum ; and that the extra two per cent had been reserved in 
 a separate instrument at the time the loan was made, and that 
 they had paid interest accordingly, to the first day of April, 
 1861. The appellants then set forth the penal provisions (Sec. 
 4) of statute of 1845, and without making any offer to do 
 equity, concluded this defense by insisting that if, upon an ac- 
 count taken, anything should be found due Lawrence, " then 
 that the sums paid for interest under said corrupt and unlawful 
 agreement, and all amounts forfeited by Lawrence ought to be 
 applied in payment of such sum so found due, to the extent of 
 the amount so paid a,nd forfeited so aforesaid." Abstract p. 54 
 
 But the previous repeal of section 4 of the statute, 1845, put 
 it out of the power of the court to enforce the statutory for- 
 eiture pleaded and claimed by the appellants ; and the ap- 
 pellants had no standing in equity to crave the favor of the 
 ^ourt, because, 
 
 1st, They had not offered to do equity ; 
 
 2nd. They had been guilty of bad faith toward Lawrence. 
 
 3. This case is distinguishable from the cases of Heacock 
 Swartout, 28 111. 291, and Cashman v. Stutphen, decided 
 April term, 1864, not yet reported, in which the court al- 
 > r ed the lender but six per cent.
 
 In these cases it appears that the lender acted in bad faith, 
 claiming absolute title to property only held by him as security, 
 and repudiating the existence of a contract of loan or the reserva- 
 tion by contract of any rate of interest whatever. In none of these 
 cases did the lender rely upon his contract, and when the relation 
 of mortgagor and mortgagee was established by the borrower so 
 as to give him a right to redeem, the court directed the accounts 
 to be taken without reference to the existence of an interest 
 agreement ; on that subject taking the lender at his word, but 
 yet compelling the borrower, as a condition of his redeeming, 
 to do equity by paying interest at the rate fixed where there 
 was no interest agreement 
 
 4. This case as governed by the Act of 1849, is distinguish- 
 able from those cases decided in this court which are governed 
 exclusively by the Act of 1857, because, 
 
 1st The latter Act prohibits the lender from recovering 
 any portion of the interest reserved in case of usury; and hence 
 he can get no allowance of interest thereunder, except when the 
 borrower is asking the aid of a court of equity, and on that ac- 
 count is compelled to do equity by paying the rate of interest 
 fixed by law as in cases where there is no contract in relation 
 to interest 
 
 2nd. Under this Act it is not necessary to plead usury 
 specially, and hence none of the consequences of failing to 
 plead, or of improperly pleading, it can arise. The defense is 
 not considered waived, however it may be made. 
 
 The principle is, that where the whole rate reserved is declared 
 void for usury, there is no interest contract whatever between 
 the parties ; but where the rate contracted for is not in effect 
 declared void, as it is not under the statute of 1849, the prohibi- 
 tion of the statute merely reaches the excess. The operation of 
 usury statutes upon interest contracts is not permissive to enable 
 parties to make the contract In the absence of statutes the 
 rate is whatever the parties agree upon. 
 
 5. After April 1, 1861, all the parties seem to have aban- 
 doned the agreement for the extra two per cent ; and not after- 
 wards to have acted upon it, until the appellants availed them- 
 selves thereof to plead usury, more than two years after the last 
 interest, legal or illegal, had been paid on the loan.
 
 23 
 
 Interest at the rate of ten per cent was specifically charged 
 on the land, together with the principal sum loaned ; the extra 
 two per cent was not thus secured. The two parcels of interest 
 were treated separately and distinctly by the parties, and Law- 
 rence has never claimed anything upon the extra interest agree- 
 ment since the borrowers ceased to voluntarily pay interest 
 upon it 
 
 The appellants and Bigelow having neglected to pay any- 
 thing upon the debt or interest for more than two years, filed 
 their bill, complaining that Lawrence was about to proceed 
 against the land to collect his debt, or threatened to eject them 
 by legal process for their default, and enjoined him from taking 
 such proceedings. Their position as complainants was not 
 changed because they were made defendants in the cross-bill, 
 which was technically grounded upon the defense set up to the 
 original bill. A foreclosure was the legitimate consequence of 
 the maintenance of that defense ; and to avail himself of the 
 fruits thereof, Lawrence filed the cross-bill. In the meantime, 
 Lawrence was enjoined at the instance of the appellants from 
 taking any other proceeding to collect his debt, except that open 
 to him by a successful defense to the original bill and the con- 
 sequent maintenance of a right of foreclosure, to be made avail- 
 able by means of his cross-bill. 
 
 Under the circumstances the court below should have given 
 the appellee interest at the rate of ten per cent, instead of only 
 six per cent from April 1, 1861, to the time of the decree ; and 
 to that extent the decree should be modified. 
 
 V. The instrument pleaded as a release does not operate, in 
 equity, to discharge the appellants from paying their share of 
 the debt due Lawrence. 
 
 1. A court of equity will not construe an instrument as a 
 release, merely because the word release is used in it ; but 
 where it is evident, from the language of the instrument, that 
 it was not intended to operate as a technical release, it will be 
 construed as only an agreement not to charge the person to
 
 24 
 
 whom it is given, and will not be permitted to have the effect 
 of a technical release. 
 
 1 Parsons on Cont. 28. 
 
 Kirby v. Taylor, 6 Johns. Oh. 242. 
 
 Claggett v. Salmon, 5 Gill and Johns, 351. 
 
 This is also the modern rule at law, especially where it can 
 be gathered from the pleadings that the releasor does not seek 
 satisfaction from the party discharged. The principle is, that 
 the reservations contained in the instrument in question, save 
 the rights of the appellants to go against Bigelow for contribu- 
 tion in case they are compelled to pay more than their 
 share. 
 
 Sotty v. Forbes, 2 Brod. and Bing. 3646. 
 
 Willis v. DeCastro, 93 E. C. L. 215. 
 
 North v. Wakefield, 66 E. C. L. 536. 
 
 Wiggin v. Tudor, 23 Pick 444. 
 
 Lysaght v. Phillips, 5 Duer, 116. 
 
 1 Pars, on Cont, pp. 2829. 
 
 The so-called release in question, is not proven by the appel- 
 lants to have been sealed with the knowledge or consent of 
 Lawrence. 
 
 As to the question of fact whether the so-called release was 
 sealed with the knowledge or consent of Lawrence, the following 
 considerations will govern : 
 
 (1.) The appellants propound the release in their supple- 
 mental bill, and allege in legal effect that it was sealed with the 
 knowledge and consent of Lawrence ; and they ask Lawrence 
 to answer this allegation under oath. 
 
 (2.) The burden of proof to make out the allegation in regard 
 to the seal, is on the appellants and herein 
 
 (a.) The answer of the defendant, called for on his oath 
 emphatically and explicitly denies that the instrument was 
 sealed with the knowledge or consent of Lawrence. This answer 
 required the testimony of two witnesses to overcome it.
 
 25 
 
 To overcome the answer, the appellants examined Phillips 
 and McAllister; both swearing to the presence of a seal 
 before the execution. It may be admitted that at this point, 
 the legal preponderance of testimony was with the com- 
 plainants. 
 
 But here the defendant introduced Chapman, whose testimony 
 fully sustained the answer he swearing positively to the 
 putting on of the present seal, at Bigelow's request, after the 
 so-called release was signed and delivered, and without the 
 knowledge or consent of Lawrence. 
 
 (3.) Then bearing in mind that the burden of proof is upon 
 the appellants to show when the seal was put on, we find 
 that the testimony is equally balanced as to whether it was put 
 on before Lawrence signed, or afterwards, without his know- 
 ledge. If this is so, the defendant Lawrence must prevail 
 
 even supposing the witnesses to be in direct conflict : but 
 
 i 
 
 (4.) Phillips sustains Chapman, and shows McAllister to be 
 mistaken in a very important particular : McAllister swears that 
 Bigelow in his presence wrote the word " seal," on the seal 
 which McAllister saw on the instrument prior to its execution. 
 Now Chapman swears to a distinct recollection of putting on 
 the seal which is now on the instrument, after it had been signed 
 by Lawrence, and also of writing the word " seal " on the same 
 as it now appears ; he also swears that the word seal is in his 
 (Chapman's) handwriting. 
 
 In this matter, Phillips swears that he knows Chapman's 
 handwriting, and that the word "smZ," now upon the instru- 
 ment, resembles Chapman's handwriting; and it is to be_ noted 
 that McAllister does not himself identify the present seal as the 
 one he saw on the instrument prior to its execution, nor does 
 any witness testify that the handwriting on the seal produced 
 looks like Bigelow's, and yet if it were Bigelow's it would have 
 been easy to prove it ; and McAllister, Bigelow's counsel and 
 attorney, who testified on other points, would not have failed to 
 identify this writing as the handwriting of Bigelow, if such 
 had been the fact ; and Phillips could have spoken to the 
 same point, if such had been the fact ; while Chapman swears 
 distinctly that it is not Bigelow's handwriting.
 
 26 
 
 Hence, it must be concluded 
 
 1st, That McAllister was mistaken about the seal being on 
 prior to the execution, or 
 
 2nd, That if all three witnesses remember correctly, it must 
 be true that the seal which McAllister saw, was not the one now 
 on the instrument. If this hypothesis be true, it is manifest 
 that the present seal was put on at some time subsequent to the 
 time McAllister saw the instrument with a seal upon it. 
 
 The material question then is, when ? and the burden is on 
 the appellants ; but on this question there is no evidence ex- 
 cept that of Chapman, the appellants' evidence all relating to 
 the first seal. 
 
 (5.) The matters of fraud on Bigelow's part disclosed in the 
 answer of Lawrence, help to strengthen the view that Bigelow, 
 who had the possession of the release after McAllister first saw 
 a seal on it, removed the seal before Lawrence signed the re- 
 lease, and then got Chapman to put on the present seal. 
 
 Hence, the appellants have failed to show the seal in 
 Chapman's handwriting, to have been on the instrument before 
 execution. 
 
 A release of one joint debtor in order to discharge all, where 
 less than the amount due is paid, must be a technical release 
 under seal. 
 
 Stewart v. Eden, 2 Caines' Eep. 121. 
 
 De Zeng v. Bailey, 9 Wend. 336. 
 
 Shaw v. Pratt, 22 Pick. 305. 
 
 1 Parsons on Cont 162. 
 
 \ 
 
 A receipt in full to one joint debtor, on payment of his half, 
 is no Release of the other debtor. 
 
 Rowley v. Stoddard, 7 Johns, 207. 
 McAllester v. Sprague, 34 Me. 296. 
 
 VI. There was no error in the refusal of the Court to dis- 
 miss the supplemental bill of the appellants, after the answer 
 and replication were filed. 
 
 1. The appellee had the right to have the validity and effect 
 of the release determined ; and to interpose his defense to it, if
 
 27 
 
 he had any. He could only do this by answer, and hence the 
 supplemental bill was the only proper mode of bringing the 
 instrument before the Court. 
 
 Story's Equity Pleadings, sec. 332, 
 and authorities there cited. 
 
 2. To have entitled the appellants to dismiss their supple- 
 mental bill, they should also have offered to waive all benefit of 
 the instrument set up as a release, except as a mere receipt for 
 money paid. 
 
 3. The appellants were not injured by the refusal of the 
 Court to dismiss the supplemental bill ; they were not thereby 
 compelled to maintain the issues made therein, and if they chose 
 to do so, it was voluntary. 
 
 4. The supplemental bill, once filed by permission of the 
 Court, is under its control and discretion. 
 
 VII. There was no error in treating the sworn answer of 
 Lawrence to the supplemental bill as evidence, so far as re- 
 sponsive. 
 
 1. The complainants therein had the right to a discovery 
 from Lawrence of the supplemental matter therein alleged ; and 
 not having therein expressly waived the oath of Lawrence, he 
 was bound to treat the bill as requiring him to answer its alle- 
 gations under oath. The statute requires that " every answer 
 shall be verified by an oath or affirmation," etc. 
 
 ' Scates' Comp., p. 141, sec. 20. 
 Story's Equity Pleadings, sec. 874. 
 
 The original bill of complaint waived the oath of Lawrence 
 only "as to the statements and charges herein (i. e. therein) 
 contained." (See p. 9 Abstract) 
 
 The oath was properly taken, and certified before a proper 
 officer, and no objection was taken to the form thereof before 
 the hearing. 
 
 Act of Feb. 21, 1861, (Myers' Ed. Laws 
 of 1861, p. 175.)
 
 28 
 
 Formal exceptions to evidence should be taken before the 
 hearing. 
 
 Swift v. Castle, 23 111. 214. 
 
 2. The rule in such case is, that the answer is to be treated 
 as evidence, so far as responsive. 
 
 Stouffer v. Machen, 16 111. 554. 
 Myers v. Kinzie, 26 111. 37. 
 
 R H. KALES, 
 C. A. GREGORY, 
 
 Counsel for Appellee.
 
 DECISION OF JUDGE WILSON. 
 
 This case involves the decision of equities between the par- 
 ties, growing out of various complicated transactions set forth 
 in an original bill filed by Bigelow, Gage and Parmelee vs. 
 Lawrence, Aug. 4, A. D. 1863, and answer of Lawrence ; cross- 
 bill by Lawrence vs. complainants in original bill, and Walter 
 S. Johnson, filed Oct 6, A. D. 1863, and answers of all the de- 
 fendants ; supplemental bill by Bigelow. Gage and Parmelee, 
 filed 24th of September, A. D. 1864, vs. Lawrence, and answer 
 thereto. 
 
 To unriddle, so far as may be, the complications involved in 
 the case, I shall adopt a historical statement of the facts as dis- 
 closed by the proof and exhibits. 
 
 It appears from the evidence, that in 1856 the original com- 
 plainants and Johnson were desirous of obtaining a loan, for 
 the purpose of building a block upon the lots described in arti- 
 cles of agreement between the parties, dated September 15, 1856, 
 and also in deed of same date, from Bigelow, Gage, Parmelee, 
 Johnson and wives, to Lawrence. That negotiations in behalf 
 of the complainants in the original bill were had with Lawrence, 
 and resulted in a loan by Lawrence to complainants of $50,000. 
 To secure the payment of the money loaned, instead of giving 
 a mortgage upon the property, Bigelow, Gege, Parmelee and 
 Johnson, conveyed certain real estate to Lawrence, and he, by 
 an agreement of the same date, agreed to re-convey upon the 
 payment of the principal sum loaned, and interest, as specified 
 in the agreement, and a bond of even date, as I construe the 
 agreement of the parties, taking all the writings together. 
 These instruments, taken together, constitute the agreement be- 
 tween the parties, and are to be construed together to ascertain 
 the intention of the parties. The counsel for the complainants 
 contend that Lawrence, by his covenant to convey, is bound to 
 give them a better title than they gave to him. The covenant 
 in the agreement is in these words : " The party of the first part 
 hereby covenants and agrees to sell, and by a good and sufficient deed, 
 to convey and assure to the parties of the second part, free and clear 
 of all incumbrances, all those pieces and parcels of land" etc. Upon 
 such a covenant, standing alone, the covenantor would doubt- 
 less be bound to give a warrantee deed. But by a deed of the
 
 30 
 
 complainants, of the same date, conveying the same land to 
 Lawrence as security, it is provided that the grant in that deed 
 is subject to the rents and conditions "provided for and imposed 
 in a certain lease made by James Crow and Thomas Crow," 
 dated Oct. 10, 1868, and to continue until the first day of May, 
 1874. The last payment, under the agreement, was to be made 
 in October, 1861, more than twelve years before the expiration of 
 the lease, and there was no right of purchase, under the lease, 
 until its expiration in 1874 And, by the agreement, the com- 
 plainants were to have the possession of the premises, so far as 
 related to Lawrence rent free, and to pay all taxes and assess- 
 ments on the premises, and keep them insured for Lawrence's 
 benefit until the last payment was due. This lease had been 
 assigned to Parmelee, and was held by him for the use of Parmelee 
 & Co. By. its very terms, the legal title could not be obtained, 
 even by Parmelee & Co. , until more tb an twelve years after the last 
 payment became due, and they could by their own act, or want 
 of action, prevent Lawrence from keeping his covenant, as they 
 now construe it 
 
 Said deed to Lawrence conveys what purports to be the legal 
 title to the same land, subject to the rents and conditions of the 
 Crow lease ; and the grantors covenant, that the premises are 
 free and clear of all former and other grants, bargains, sales 
 liens, taxes and incumbrances of what kind soever, except the 
 Crow lease and certain articles of agreement, and, in addition 
 to this, there is a covenant of quiet enjoyment, without condi- 
 tion or exception, by which they covenant for quiet and peace- 
 able possession to Lawrence and his heirs and assigns, and that 
 they will warrant and defend the premises against all and every 
 person lawfully claiming or to claim the whole or any part 
 thereof. 
 
 The grant is of the lots of land to the grantee, his heirs and 
 assigns, for ever a fee-simple estate, not the interest of the 
 grantors in the lots. In the habendum clause the lots are re- 
 ferred to as the premises. Eegarding the deed and articles of 
 agreement as merely intended to secure a loan of money, they 
 constitute a mortgage. The nature of the transaction, as ev- 
 idenced by the instruments, favors this construction ; but the 
 proof on this point is conclusive. It was not a transaction 
 between vendor and purchaser, except in form, but a contract
 
 31 
 
 between borrower and lender, and in such cases it is immate- 
 rial in what form these papers are executed whether by a 
 mortgage with a defeasance, or by a simple deed of conveyance, 
 and an agreement to re-convey by another instrument, as in this 
 case. This doctrine is too familiar to require the citation of au- 
 thorities. In the present case it is apparent that all that was 
 intended by the deed and agreement, was to secure the loan 
 and enable the complainants to obtain a re-conveyance of the 
 property and estate, granted upon the payment of money. The 
 assumption that Lawrence was, bj r the agreement, to re-convey 
 a greater estate than the deed conveyed to him, would require 
 much stronger and more emphatic language than the agreement 
 contains, to support it ; and no one, I apprehend, construing the 
 instruments together, would arrive at such a conclusion. In 
 the first place, as the complainants contend, Lawrence agreed 
 to convey to them a fee-simple estate, free from incumbrances, 
 to a portion of the property to which they had but an estate for 
 years, when they conveyed to him ; and, secondly, they insist 
 that they conveyed only the estate they had. The terms of the 
 deed will admit of no such construction. The complainants' 
 deed, in the granting clause, as before stated, conveys the land 
 in fee-simple, and the covenant for quiet enjoyment applies to 
 all the lands and every part of them, and recognizes a fee- 
 simple estate. I see no difficulty in giving effect to the condi- 
 tion as it is called. The words are, " the said above described 
 property being subject in this grant to the rents and conditions 
 provided for in a certain lease," etc. It is then provided that 
 the rents and conditions shall be paid and performed by the 
 complainants in the original bill. The object of the statement 
 was to recite the condition of the property, in order to intro- 
 duce the covenants for paying the rents and moneys due upon 
 the Crow lease and the Flagler contract, and has no necessary 
 connection with the other portions of the deed, describing the 
 estate conveyed. In this respect the recital is important, as a 
 proper introduction to the covenants of complainants to pay 
 rent, etc., and as giving to Lawrence information in relation to 
 their title. 
 
 But for the words " subject in this grant" it would be impos- 
 sible to make even a plausible argument to sustain the position 
 of the complainants. But a court should, if possible, give effect
 
 32 
 
 to every part of an instrument, and not be astute to find repug- 
 nant and inconsistent provisions ; and should especially avoid 
 declaring any portion of an instrument void. 
 
 It is clear, if the recital or condition in relation to the Crow 
 leases is to receive the construction contended for by the com- 
 plainants, that it must be regarded as void, being, on their con- 
 struction, repugnant to the clause denning the estate granted. 
 The complainants grant an estate in fee simple to the whole of 
 the property, and covenant for the quiet enjoyment of the 
 grantee and his heirs and assigns, and in the same deed, as they 
 will have it, insist that they only intend to convey an estate 
 for years. It would be difficult to imagine a more palpable 
 repugnancy, unless they contended that the grant in fee simple, 
 with the recital or condition, conveyed no estate or title what- 
 ever. (Baldwin's case, 2 Coke, p. 23 ; 3 Pickering, pp. 272-7 ; 
 3 Gushing, p 419 ; 15 Pickering, p. 434.) 
 
 Even in this aspect of the case, there can be no pretense for 
 contending that Lawrence is bound to give to the complainants 
 any other title than he received. If he gave a deed in fee 
 simple in form, with covenants against incumbrances, the com- 
 plainant would be estopped to deny that he had such a title, or 
 that they acquired it by virtue of his deed, his only title being 
 under their deed in fee simple. (2 1ST. H., pp. 458-60 ; UN. 
 K, p. 28.) 
 
 But these instruments constituting a mortgage, the Court can 
 only regard it as such. " Once a mortgage always a mortgage," 
 is a familiar maxim. As such, in equity, upon the payment 
 of the money by the mortgagors, they are only entitled to a 
 release from the mortgagee of all the interest he acquired in 
 the premises from them, when the mortgagors, as in this case, 
 retain the possession and use of the premises. (2 Spence Bq., 
 p. 618.) 
 
 The claim in the original bill, for a deed in fee simple, and 
 against incumbrances, and that defendant be enjoined till he 
 obtains title in himself to justify such a deed, would result, as 
 shown by the bill, in a perpetual inj unction, and cancel forever 
 a just debt of over $40,000 owed by the complainants to the 
 defendants and this without default on the part of the defend- 
 ant The very defects on which their claim is predicted, existed 
 in the title of the complainants at the time they conveyed to
 
 33 
 
 the defendant what purported to be a fee simple estate in the 
 land. The agreements by which a fee-simple estate could be 
 obtained, being in possession of and under the sole control of 
 the complainants, they would be enabled to retain possession of 
 the mortgaged premises without paying the mortgage debt, 
 and, as against the defendant, obtain a perfect title to the land 
 conveyed by them to him in fee simple. I apprehend it will 
 take several centuries in this progressive era, before a precedent 
 will be found for such a decree. Nor will a court of equity 
 decree a specific performance, as between parties, when, by a 
 literal compliance with the stipulations of the parties, the party 
 against whom the decree is sought could recover back by suit 
 whatever could be obtained by the execution of such decree. 
 To do so would needlessly multiply suits and encourage cir- 
 cuity of action. 
 
 The original bill is in the nature of a bill for specific per- 
 formance, or, as the case now stands, to avoid specific perform- 
 ance by an indefinite postponement of relief. Upon the filing 
 of the cross-bill by Lawrence, the complainants set up usury in 
 the answer, and ask the enforcement of the penalties imposed 
 by the interest act of 1845. They allege, and the proofs 
 show, that a large amount of interest was paid to Lawrence, 
 at the rate of 12 per cent per annum. The last payment of 
 interest was in April, 1861, as alleged and shown by proofs. 
 Though the question of usury is raised by the answer to the cross, 
 bill, it is in the nature of an amendment to the original bill, 
 and a substantial part of the case, existing at the time the 
 original bill was, filed. 
 
 In this view of the case the complainants stand in the 
 same position in a court of equity as they would do had 
 they, in their original bill, stated the whole case, and set up 
 usury, instead of making a partial statement of the case, and 
 reserving the claim of usury until the defendant sets up the 
 other facts of the case by cross-bill. If they had set up usury 
 in the original bill, they would be compelled to pay the prin- 
 cipal and legal interest, into court, or at least offer to do so, 
 upon the amounts being ascertained. I am not aware that a 
 party who makes a partial statement of his case, and afterwards 
 amends, so as to obtain other relief, or makes a new claim to 
 relief, in answer^to a cross- bill, stands in any better position
 
 34 
 
 than he would if he had stated his whole case in the first in- 
 stance ; and no^authority has been cited sustaining such a posi- 
 tion. Kegarding the complainants in the same position in 
 relation to the question as they would have been had 
 they set up usury in the original bill, the same result follows 
 in relation to usury as under the interest statute of 1849. 
 (Moses v. Cartel-, April term 1864, and April term 1865.) 
 Applying the rule in equity in this case, the interest statutes 
 are referred to only to determine what is legal interest and 
 what is usurious, but the penalties are never enforced, upon the 
 principle that a party who seeks equitable relief must himself 
 do or offer to do equity. 
 
 Now upon that question of usury I am not altogether clear 
 what the force is of the decision of the Supreme Court But 
 one thing is very apparent, that at the time the contract was 
 made, the interest statutes of 1845 and 1849 were in force ; and, 
 inasmuch as the statute of 1849 only relates to a specific class 
 of cases that is, usury taken for the loan of money, (as I un- 
 derstand the rule,) the statutes of 1845 and 1849 are to be 
 construed together, and as relating to the same subject As I 
 understand, the Supreme Court has so decided. 
 
 Now suppose, as a proper way of testing it, that the statute of 
 1849, instead of being a separate statute, was a section of the 
 statute of 1845 ; as I understand, in construing statutes in pan 
 materia, they are to be construed as being sections of the same 
 statute. The rule is well settled, that where there are general 
 words covering -a large class of cases and a specific provision in 
 relation to subjects of a certain class, that the general words 
 do not apply to the particular specifications, but the particular 
 class which is selected out, and in relation to which the specific 
 provisions are made, has to be governed by the specific pro- 
 visions, and not by the general rule. Now, apply this principle 
 to this case, and regard the act of 1849 as a section added to the 
 act of 1845. The general provisions of the act of 1845 relate 
 to all classes of cases where usury may be received and taken ; 
 it covers the whole. The statute of 1849 only refers to usury 
 taken for money loaned; therefore, money loaned is to be 
 covered by the provisions of the act of 1849. That is the case, 
 as I construe it If so, then whatever provisions there are in 
 the statute of 1849, regarding it as a portion of the statute of
 
 35 
 
 1845, and construing them together, the only penalties, and 
 the only relief which a party can have for usury, in case of 
 money loaned, is the deduction of the usury. The Supreme 
 Court have given that construction to it in the case of Matthias 
 v. Cooke, 31 Illinois Eeports, p. 80. They decided that the 
 usurious interest might be deducted. That, then, is the con- 
 struction of the Supreme Court in reference to the act of 1849 
 that usurious interest should be deducted when it is pleaded 
 or set up by way of a defense. 
 
 When the decree is drawn, I shall permit the parties to cite 
 authorities by way of showing what decree the court should 
 render, in the view which I have taken of the question. 
 
 Complainants filed supplemental bill, alleging that about the 
 12th of August, 1864, the complainant Bigelow had a settle- 
 ment with the defendant in relation to said articles of agree- 
 ment, and that Bigelow paid Lawrence $22,557, and that Law- 
 rence executed, under his hand and seal, a release to Bigelow of 
 his portion of all money due Lawrence on said articles of agree- 
 ment, and asking that all the covenants in the articles of agree- 
 ment be declared satisfied and discharged, and that Lawrence 
 be decreed to reconvey to the complainants the premises con- 
 veyed to him by the complainants. To this defendant answers 
 upon oath, denying that the paper called a release was sealed 
 when he signed it, and in any event that the prayer of the com- 
 plainants ought not to be granted. 
 
 The only remaining questions relate, 1st, to the fact of the 
 release being under seal when signed ; and, 2nd, to the rights of 
 the parties in equity upon a release under seal of one of several 
 joint obligors, when, from the instrument itself, it is apparent 
 that it was not intended to release the other joint obligors. 
 
 In relation to the first question, the proof is very contradic- 
 tory and unsatisfactory. The witnesses were all examined in 
 open court, and there was nothing in their appearance or man- 
 ner of testifying which would justify any oiie in saying they, 
 or either of them, was unworthy of belief, or that any particu- 
 lar statement made by either of them is designedly false ; and 
 still some one of them must be mistaken. Lawrence, in his 
 answer, swears it was not sealed when he signed it. No one of 
 the witnesses was present when it was signed, and therefore 
 cannot state the condition of the instrument at that time. 
 Phillips swears that the present release, which he identifies, had
 
 36 
 
 a yellow seal upon it while it was unsigned, and before Law- 
 rence came into the office ; that he cut out a seal with a pair of 
 shears, and that Chapman affixed it to the paper, by mucilage, 
 in his presence, and then handed it to Bigelow. Mr. McAllis- 
 ter swears that he was present when the same release was in the 
 hands of Bigelow, unsigned, and with a yellow seal upon it, as 
 described by Phillips, and that Bigelow, at his suggestion, and 
 in his presence, wrote upon the seal the letters "seal" The 
 paper being identified as the same, this proof would be conclu- 
 sive against the statement of Lawrence, if the identity of the 
 seal was established. But this is not done. Mr. McAllister, 
 who saw Bigelow write the letters " seal" does not swear that 
 the same letters on the seal of the instrument produced are 
 those made by Bigelow in his presence, or that they are in the 
 handwriting of Bigelow. All that these witnesses swear to may 
 be true, and still the answer of Lawrence be true, as the seal 
 might have been removed before signing. Besides, it would 
 seem to be easy to identify the letters on the seal to be in Big- 
 elow's handwriting if they were so. On the other hand, to sus- 
 tain the statement of Lawrence, Mr. Chapman swears that he 
 wrote the instrument at the request of Bigelow, and that on the 
 day after, or later, Bigelow brought the release to him, as he thinks, 
 with the signature of Lawrence to it, and requested him to put 
 a seal upon it, which he did. That he wrote the letters "seal" 
 on the seal now upon the instrument identified as the release ; 
 and he swears that the letters " seal," are in his handwriting. 
 Phillips swears that the e and a look like Chapman's the s and 
 I do not, but that still he may have written them. No witness 
 swears they are in the handwriting of Bigelow. If not, the 
 present seal is not the one seen by McAllister, and there is no 
 evidence that there was a seal upon the instrument when it was 
 signed. The statement of McAllister, in relation to the time 
 when he obtained possession of the instrument from Bigelow, 
 is inconsistent with the statement of Chapman in relation to the 
 time of sealing the release; but Chapman's identifying the seal 
 by the letters on it, in his handwriting, to which he swears 
 positively, and in relation to which he could hardly be mis- 
 taken, shows that the seal to which McAllister refers, was not 
 the seal now upon the release. Lawrence swears there was no 
 seal on the instrument when he signed it, and Chapman swears
 
 37 
 
 that he put on this identical seal after it was signed, at the re- 
 quest of Bigelow. 
 
 Though technically the weight of testimony is against the 
 complainants on this point, I am unwilling to decide a question 
 supposed to be so important in its results, unless compelled to 
 do so, upon the mere weight of testimony, when there is so 
 much uncertainty, and the evidence is so contradictory. I ap- 
 prehend the complainants entirely misapprehend the force and 
 effect of this instrument in equity. 
 
 Assuming, for the sake of argument, that the release was 
 sealed when it was signed, the question is, what is its force and 
 effect in a court of equity ? The discharge of one joint obli- 
 gor by a simple release, under seal, or, as it is called, a techni- 
 cal release, is a discharge of all the obligors, both at law and in 
 equity. This was expressly decided by Lord Hardwicke in 
 Bowen v. Swadlin, 1 Atkins, p. 294, and there is no case, so far 
 as I am advised, where a different rule has been adopted. But 
 where the instrument is not a simple release, a court of equity 
 will consider the instrument so as to give effect to the intention 
 of the parties, and this is done even at law, when the plaintiff, 
 in replying to the release pleaded, aleges that he only seeks to 
 charge the parties not expressly released. (North v. Wake/kid, 
 66 Eng. C. L., p. 536 ; Willis v. De Castro, 93 Eng. C. L., p. 
 215 ; 30 B. and C., p. 211.) 
 
 In the present case the instrument is not a technical release, 
 and there can be no question in relation to the intention of the 
 parties, for the language of the instrument is explicit and unam- 
 biguous. The words are, " if the property mentioned in the 
 above articles has to be sold under an order of the court at Chi- 
 cago, the interest of said Bigelow in it is to be protected, accord- 
 ing to this settlement. Nothing herein contained shall in any wise 
 affect my rights or demand against said Parmelee, Gage or John- 
 son, or their interest in said property. " But, in addition to this, the 
 attorney of Bigelow swears that he first wrote a technical re- 
 lease, which Lawrence refused to sign ; that he then wrote the 
 above clauses to satisfy Lawrence. There can be no question 
 in relation to the intention of the parties, and I apprehend there 
 is as little doubt that a court of equity can compel the specific 
 performance of a contract or obligation, according to the intent 
 of the parties, as shown by the obligation itself A court 
 will not construe an instrument as a release, merely because the
 
 38 
 
 word " release " is used in it ; but when it is evident, from the 
 language of the instrument, that it was not intended to operate 
 as a technical release, it will be construed as only an agreement 
 not to charge the person or party to whom it is given. (Solly v. 
 Forbes, 2 Brod. & B., p. 46 ; Kirby v. Taylor, 6 Johns. C., p. 242 ; 
 Olagettv. Salmon, 5 Gill & J., p. 351.) 
 
 It would be indeed a strange anomally if, as contended by 
 the complainants, a court, which has special and aqnclusive juris- 
 diction to compel the specific performance of obligations, had 
 no power to enforce the obligation according to the intent of 
 the parties, as it appears from the obligation itself; but, on the 
 other hand, was compelled to decree a performance of the obli- 
 gation palpably contrary to the intent of the parties, and this 
 in a case where the party asking this action on the part of the 
 court voluntarily comes into a court of equity to obtain equita- 
 ble relief. When courts of equity become so hampered by de- 
 cisions and precedents that they cannot enforce obligations 
 according to the intent of the parties, as expressed by the obli- 
 themselves, and by the same precedents to release men 
 from their legal obligations and decree contrary to justice, equi- 
 ty and conscience, it will be high time to abolish such courts, 
 or change their name. The doctrine in the case of Bower v. 
 *Swadlin, before cited, is confined to a technical release, as is 
 evident by Lord Hardwicke's subsequent decision. In Cole v. Gib- 
 son, 10 Yesey, p. 503, he said that equity would restrain a gen- 
 eral release to what was under consideration at the time ; and 
 decides in Ramsay v. Hylton, 2 Yesey, p. 204, that a recital in a 
 general release is to have the same effect in equity. Chancellor 
 Kent, in Kirby v. Taylor, speaking of the equitable doctrine on 
 this subject, says ; "A release is to be construed according to the 
 intent and object of it," and that intent will control and limit 
 its operation. This case was decided in 1822, and no court of 
 equity, so far as I am advised, has since repudiated this doc- 
 trine, or established a different rule. On the other hand, this 
 case is frequently cited, and always with approbation. (Clagett 
 v. Salmon, 5 Gill & J. ; Lysaght v. Phillips, 6 Duer, p. 116 ; 
 Parsons on Contracts.
 
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