Opinion of the Court. that Hefner unequivocally and understandingly adopted and ratified the use of his name on this note. If there had been an original assent on the part of the defendant to the placing of the signature of his name upon the note by Coman, the principal promisor, there can be no question that he would have been bound by it. The subsequent assent of Hefner to, and ratification of the unauthorized use of his name on the note by Coman, must, as we conceive, have the same effect to charge the former, as if he had originally authorized the signature of his name to the note by Coman. Such subsequent assent and ratification would be equivalent to an original authority, and confirm what was originally an unauthorized and illegal act. Story on Agency, Sections 239, 253. We conceive that the same rule should apply here as in the` case of the adoption or ratification of an ordinary act of assumed agency; that the form of signature not bearing any indication of the fact of its being made by another hand, does not prevent the person whose name is placed on the note from being legally holden; upon proof that the signature was previously authorized, or subsequently adopted. Nor is it necessary, to establish a ratification, that there had been any previous agency created. An act wholly unauthorized may be made valid by a subsequent ratification. Culver v. Ashley, 19 Pick. 301. As fully sustaining the views here expressed, we refer to the following authorities: Commercial Bank of Buffalo v. Warren, 15 N. Y. 577; Greenfield Bank v. Crafts et al. 4 Allen, 447; Casco Bank v. Keene, 53 Maine 103; Livings v. Wiler, 32 Ill. 387. This does not present the case of admissions, under a mistaken belief, that the signature was genuine. In this respect, a marked difference exists between the present case and that of Hefner v. James Vandolah, 57 Ill. 520. In that case Hefner had not seen the note, and as he had signed several notes as surety for Coman, he might well have supposed that the note which Vandolah mentioned to him as having, not 62 486 66a 425 Opinion of the Court. Syllabus. stating its amount, was one which he had signed; and all his supposed acts of adoption and ratification might well have proceeded upon that false assumption. In the present case, the acts and admissions of the defendant were, after a careful actual examination of the note, and time taken for consideration, with full knowledge that the signature was not in his handwriting. As the note upon its face bore a greater rate of interest than ten per cent, the whole of the interest was forfeited under the statute, and only the principal sum due was recoverable. For error in this respect, in rendering judgment for interest upon the note, the judgment must be reversed and the cause remanded. Judgment reversed. H. G. FITZHUGH et al. ข. JOHN T. SMITH. 1. SPECIFIC PERFORMANCE—who may maintain bill for. Where the title of a vendee of land is sold under a valid decree against him, the purchaser, upon receiving a master's deed therefor, succeeds to his position as vendee; and, upon complying with the terms of sale, may maintain a bill against the vendor for specific performance. 2. SAME what relief, decree. S sold a lot to H for seven hundred and fifty dollars, on credit, giving a contract for a deed, which was never recorded, reserving the right to declare a forfeiture for non-payment, and making time of the essence. The vendee afterward loaned H three hundred dollars, secured by an assignment of the contract, to enable the latter to erect a building upon the lot, in the progress of which H incurred an indebtedness to F and B for materials. They, uniting with other lien holders, filed a petition to establish a lien on the premises, making the vendor and vendee defendants, alleging in the petition that I held the premises under a contract of purchase from S. The latter suffered the petition to be taken as confessed, and a decree and sale followed of the interest of H in the premises; F and B became the purchasers, and received the master's deed. Syllabus. After receiving their deed, they tendered to S eight hundred and eighty-five dollars, and demanded a deed; and, upon his refusal, filed their bill for specific performance. The defendant filed no cross bill, asking for affirmative relief. The circuit court, on the hearing, refused to decree that S should execute a deed to complainants upon their payment of the amount of the purchase money found to be due, with interest, but ordered the premises to be sold, and payment out of the proceeds to be made: first, the amount of the purchase money and interest due to S; secondly, the amount of the original lien of F and B; thirdly, to S the amount of his loan to H, and interest; and, finally, to F and B the amount due the other lien holders, which they had paid at their purchase: Held, that the decree was erroneous; that no sale should have been ordered; that the complainants having succeeded to the rights of the original vendee, was not entitled to such relief, and that the vendor was not entitled to any affirmative relief; that the complainants were not bound to pay S the sum loaned by him to H; that the proper decree was to require the complainants to pay the amount due upon the contract of sale, with interest, in specie, the contract providing for its payment in gold or its equivalent, within thirty days after entering the decree, and that the master in chancery pay the same over to S upon his executing a proper deed. 3. SAME. A vendor of real estate, whose purchase money is due and unpaid, may file a bill asking a sale of the premises in default of payment, and thus discharge himself of the equities of the vendee; but the vendee has no right to a decree of sale against the vendor for the purpose of paying the unpaid purchase money. 4. SAME-tender. Where the complainants in a bill for specific performance have succeeded to the rights of the original vendee, by purchase at a judicial sale, and the vendee's contract of purchase has not been recorded so as to give notice of its terms, it will not be necessary for the complainants, before filing their bill, to make a formal tender of the precise sum due the vendor. It will be sufficient if they offer to perform the contract when the vendor declines to recognize their right to a deed unless they pay him money which he had loaned the vendee. 5. EQUITABLE MORTGAGE. Where the vendor of land, after the sale, loans the vendee money, taking back an assignment of the contract to secure its repayment, with an agreement that it shall be forfeited if the money is not repaid when due, the transaction will be regarded as an equitable mortgage. 6. SAME-lost by laches. Where the holder of such mortgage, who is also vendor, is made a party defendant in a petition by creditors of the vendee seeking to establish a lien against the premises embraced in the contract as against the vendee, the petition alleging that the vendee holds the land under a contract of purchase from the vendor, and he fails to answer and disclose his rights as such mortgagee, but suffers such creditors to take a de Syllabus. Opinion of the Court. cree for the sale of the vendee's interest, and become purchasers at the sale without notice of his secret lien; the purchasers will succeed to the interest of the vendee, under the original contract of purchase, fully discharged from the lien of the equitable mortgage. 7. DECREE-how far conclusive. Where a petition to inforce a lien for materials furnished in the erection of a building is filed against the vendee and vendor of land, which alleges that the former holds the premises under a contract of purchase from the latter, and the vendor fails to answer, and a decree is taken and the land sold to the petitioners, this will not prejudice the vendor's right to require payment of the purchase money and interest before parting with the title. But if he has any other claim upon the land, such as an equitable mortgage or secret lien, and fails to disclose it before decree and sale, the purchaser of the land without notice, will take the land discharged of such secret claim or interest. 8. FORFEITURE-vendor and vendee. A right of forfeiture, although tolerated, is not favored in courts of equity. Where the party seeking to inforce such right, by his conduct has misled others, and suffered them to acquire rights in ignorance of his right to declare a forfeiture when called upon to disclose the true state of the facts, a court of equity will not allow him to exact a forfeiture. 9. SAME-waiver. Thus, where a vendor had, in his contract for the sale of land, reserved the right to declare a forfeiture for con-compliance with its terms, and the contract was not recorded so as to afford notice of its terms, and when made a party defendant in a judicial proceeding against his vendee to establish and enforce a lien, and subject the interest of the vendee to sale, and failed to answer and disclose the terms of the contract and his right to insist on a forfeiture, or even to give notice thereof, but suffered the creditors to proceed to decree, and to advertise the sale of the premises, and then notified them of his intention to declare a forfeiture only three days before the sale, it was held that by his conduct he had waived his right to declare a forfeiture as against the rights of such creditors. 10. SPECIE CONTRACT. Where, by the terms of a contract for the sale of land, the purchase money is made payable, with interest, in specie funds, on bill for specific performance against the vendor, the decree, if for the complainants, must require them to pay in specie the sum due on the contract. WRIT OF ERROR to the Circuit Court of Sangamon County; the Hon. JOHN A. McCLERNAND, Judge, presiding. Smith, the defendant in error, on May 28, 1868, sold a lot in Springfield to Hassan for seven hundred and fifty dollars, payable, one hundred dollars on May 28, 1870, one hundred Opinion of the Court. dollars on May 28, 1871, one .hundred dollars on May 28, 1872, and four hundred and fifty dollars on May 28, 1878, with interest annually at ten per cent, payable in specie funds. Time was made of the essence of the contract. The contract provided, that in case of failure of Hassan, his heirs, or assigns in the performance of all or either of the covenants or promises on the part of Hassan to be performed, Smith should have the right to declare the contract void without notice. Messrs. J. C. & C. L. CONKLING, for the plaintiffs in error. Messrs. STUART & BROWN, for the defendant in error. Mr. CHIEF JUSTICE LAWRENCE delivered the opinion of the Court: On the 28th of May, 1868, Smith, the defendant in error, sold to one Hassan a lot in the city of Springfield for seven hundred and fifty dollars, the first payment falling due in May, 1870, and the last in May, 1878, the interest on the whole sum payable annually. The contract contained a clause of forfeiture. Hassan commenced the erection of a house, and in the progress of the work contracted an indebtedness for materials to Fitzhugh and Bugg, the complainants herein, who, on the 19th of January, 1869, filed a petition to establish a lien, uniting therein with Hopping and Ridgely, who were also lien-holders, and making Hassan and Smith defendants. The petition alleged that Hassan held the premises under a contract of purchase from Smith. Smith was summoned, but made default. On the 1st of June, 1869, the court rendered a decree directing the sale of Hassan's interest in the land for the amount found due the petitioners. A sale was held at which Fitzhugh and Bugg purchased the premises for the amount due to them and to their co-petitioners, and on the 23d of December, 1869, the day of sale, the master in chancery executed to them a deed. On the 8th of March, 1870, they |