The principal questions presented in this case are, 1, Was time of the essence of the contract made by Josiah B. Herrick, deceased, with William Whitney, on the 19th October, 1849, for an interest of one-eighth in the land in controversy ; 2, Did the non-performance of complainants at the time, work a forfeiture of the contract, and justify the defendant Whitney, in selling to his co-defendants, James and Thomas Morgan, and then in buying the same interest, they being fully informed of the existence of this contract, and of all the circumstances in regard to it; 3, Was the tender by the administrator on the 1st of June, 1853, a sufficient tender, and 4, Was the heirship of Thornton Herrick, sufficiently established, and a subordinate question, growing out of exceptions to the master’s report.
It will be observed, there is no appearance or answer by Whitney. The case has been argued, on both sides, with ability, and much industry and research exhibited in the collection, and collation of authorities, supposed to bear on the case, and as furnishing this court the rule which should govern it, if any general rule can be said to exist in such cases.
As to the tender by the administrator on the 1st of June, 1853, the day on which the last payment became due, of $595.44, it is alleged, that being less as found by the report of the master, than the amount actually due on the contract, it is an insufficient tender. It will be observed here, that the tender was not objected to on this ground at all.
The report of the master, and the decree of the court consequent thereon, makes the amount due, $833.83, but it will be ob*494served, that this computation was made on the 5th of April, 1858, nearly five years after the tender, and is made up of deficits growing out of the nursery contract, and non-payment of Herrick’s share of the taxes on the land, as well as the defaulted payments on the contract. The sum tendered was the amount due with interest for the land, nearly five years anterior, and was on the land contract only, and which we think, was all that was necessary to be tendered, for the facts show, that this “ nursery concern,” although growing out of the sale by Sheffield who owned it, to Whitney of one-fourth interest in it, did not in any sense, make the contract of sale of that interest dependent upon it—it was subordinate to the sale. They were partners in the nursery, but not in the land, of that, they were tenants in common, each owning a specified undivided interest, and it is expressly stipulated in the “ nursery contract,” that it is to be conducted thereafter, during the pleasure of the parties in interest, as stipulated in the agreement with Sheffield, Lewis and Whitney, which is, “ for joint accounts, profits and loss, in proportion to their interests therein.” It was no part of the contract for the land, that it should be forfeited, if the dues on nursery account were not paid. If the deferred payments for the land were met, Whitney would have been obliged to convey, and the court would so decree, if Herrick was in arrears on nursery account, though the court might make it a part of the decree, that the amount so in arrears should be a lien on the “ nursery.” The contract to convey the land would not be affected by these arrears. And so of the payment of the taxes. Bach co-tenant is equally bound to keep the taxes paid, and one who pays all, can claim no advantage over the other on that account, he can only claim to be reimbursed with interest. It could not deprive the laggard of his right to resort to a court of chancery to compel a conveyance, having paid the purchase money, though the taxes were unpaid. The court might impose terms, that until the taxes and interest and costs were paid, the deed should not be delivered, or any other reasonable terms. The right to have a deed for the land, grows out of the contract to make a deed, and it expressly provides, that a deed may be demanded on payment of the first installment of the purchase money, giving bond and mortgage in return. It was not at all, in any sense, dependent on payment of the nursery expenses and taxes, or anything else but the purchase money, at the several times specified.
The other questions in the case and the most important will be examined together.
It is a familiar principle, that at law, the time fixed for the performance of a contract is deemed of the essence of the con*495tract; and generally, if the seller is not ready and able to perform his part of the agreement on the day, the purchaser may elect to consider the contract at an end. Tyler v. Young et al., 2 Scam. R. 446.
But in equity, time is not necessarily deemed of the essence of a contract, indeed, it was formerly held that the parties could not make time the essence. Courts of equity are frequently called on to relieve, where the terms for the performance and completion of the contract, have not, in point of time, been strictly complied with. Smith v. Brown, 5 Gilm. R. 314. The parties may make time of the essence of their agreement, and when this distinctly appears to have been their intention and no peculiar circumstances have intervened to prevent or excuse a strict performance, it must in equity be considered and treated as of the essence. As with all other contracts, the intention of the parties controls.
The contract between J. B. Herrick and Whitney, is substantially the same, with that of Sheffield and Whitney, and both, only provide a day or time on which the several payments shall become due and payable, and providing, that on the payment of the first installment a deed may be demanded on giving a mortgage, they both expressly provide, that on full payment of the purchase money “ a deed should be made.” It is true, the time specified in the notes from Herrick to Whitney, are the same days and times on which his own notes to Sheffield are due and payable, and the most that can be made of that circumstance is, that Whitney probably, looked to it as a fund out of which he might discharge one-half of his indebtedness to Sheffield. It might be important to him that Herrick should “ come to time,” but no forfeiture is declared if he does not—but whenever full payment is made a deed shall be made. Had it been in the contemplation of these parties, that being in arrears should put an end to the contract, it was very easy so to provide as in Smith v. Brown, 5 Gilm. R. 314; Kemp v. Humphreys, 13 Ill. R. 573, by declaring, in that event, the agreement shall be null and void, or in some other appropriate form express such intention. We do not say that the intention shall be actually expressed in words, but we do say, that the contract itself and the attendant circumstances, must make manifest the intention.
We find no other circumstance except that of making Herrick’s notes correspond, in time of payment, to Whitney’s notes to Sheffield, and as in the notes to Sheffield a day being fixed for payment, time is not thereby made of the essence of the contract so neither is it in the notes of Herrick to Whitney. There is nothing whatever to show that such was the intention of the parties, nor can we conceive of any very strong reason, *496why, in this particular case, time should be of the essence. ' Sheffield did not make it so with Whitney, by his agent Mr. Ogden, though he states in his deposition, that such was the rise in value of real estate in and about Chicago for the last ten years, “ that time is considered to be of the essence of contracts for the sale and purchase of real estate, whether so expressed or not.”
We do not so understand the meaning of the terms, “ of the essence,” that it has reference alone to the rise in the value of lands, or that it is subject to its fluctuations, but depends wholly upon the intention of the parties which, it is true, that consideration may and does greatly influence.
Indeed that consideration does not seem to have influenced either of these parties. The agreement to give a deed, on the payment of the first installment and a mortgage to be returned, is a very strong circumstance to show that time was not considered of the essence, for on taking an ordinary mortgage, the aid of a court must be invoked for a strict foreclosure and sale, all which is productive of great delay, to which is to be added the time given by statute in which to redeem after sale. We are clearly of opinion, that as to this contract time is not of its essence, and that the parties did not intend that it should be void, if the payments were not made on the days and times stipulated.
But if time was of the essence of this contract, has any circumstance intervened to prevent or excuse a strict performance.
The facts show, that soon after the payment of the first installment and interest by J. B. Herrick, he left for a distant State, and died, leaving as is alleged, an only child, Thornton Herrick, one of the complainants in this suit, in a state of the most helpless infancy, being at the time of the decree not more than seven years of age, and having at no time a guardian. It is true, administration was granted on his estate, but of its condition we are not informed, nor of the conduct of the administrator in the execution of this trust. He could, doubtless, had he been so disposed and had the means, have paid the installments as they became due, and it was his duty so to do, if, in his judgment, it would have been for the benefit of the estate. This was a problem left for his own solution, and for its correct solution he was responsible. There are cases where heirs have suffered from the laches or dishonesty of the administrator, but courts do not, as a general thing, allow them, or any delinquencies in the management of the estate, to work serious, and perhaps, irremediable injury to infant heirs, if they can prevent it by a proper exercise of the powers with which they are vested. Infants are the peculiar objects of chancery care—they are the *497wards of the court, and it must be a very strong case indeed, in which they will impute laches to them, or as a general rule, suffer them to be prejudiced or injured by lapse of time, or by the conduct of others, with whom they are not in privity, and whose actions they can neither control or advise.
The death and intestacy of the ancestor, and infancy of the heir at law, we regard as strong circumstances, to prevent and excuse a strict performance of this contract.
But we have said we do not consider that time was expressly or necessarily of the essence of this contract, and not being so, it is purely a matter for the exercise of that sound discretion which exists in the court, to enforce it or refuse, as the circumstances may warrant. The doctrine in equity is not forfeiture, but compensation.
The books are full of cases where, in contracts like this, and sought to be enforced, in which the stirring, business men of the world were parties, rigid rules have not been applied. Cases abound where credit is given, and a conveyance to be made on payment of the last installment, as in this case, and time not the essence of the contract. Courts of chancery have enforced a specific performance, though the payments have not been promptly made. If so with full grown men, then, surely, when an infant, a mere child, is litigating.
A leading case in this court, on this subject, is that of Glover v. Fisher et al., 11 Ill. R. 666, cited by the appellees’ counsel. That case has not the strong features which this has, arising out of death, intestacy and infancy, but in other facts bears a close resemblance, those of the payments especially. In that case twenty-one hundred dollars was the price stipulated for the property; here two thousand and five dollars. There, nine hundred dollars was paid down, less than one-half the purchase money—here thirteen hundred and eighty dollars, more than one-half. There, in October, about six months after the contract, four hundred dollars was to be paid, of which two hundred and twenty dollars was paid before due, and the remainder, one hundred and eighty dollars, was delayed until the first of May following, the time of the last payment, when six hundred dollars was tendered, a sum less by near four hundred dollars than the amount actually due. Here, the whole of the first installment was paid, and the intei'est on the balance of the purchase money— near three-fourths of the second installment was paid, and although the third was wholly neglected, the whole amount actually due, was tendered on the day of the last payment when a deed was, by the contract, to be executed. The court, in the case cited, considered the extent of the delay—the amounts which had been paid, and all .the circumstances which may have *498excused or justified the party in his remissness, and pronounced a decree in his favor.
In that case there was a delay of more than fourteen months before the complainant offered to pay the full amount duo. The conduct and motives of both parties was regarded in determining if this delay should work a forfeiture, and the court thought there was nothing in it, to show that it was caused by a design on the part of the complainant, to abandon the contract.
In this case the only defalcation was in a small part of the second, and in the whole of the third installments, amounting in all to a sum not exceeding two 'hundred dollars including the interest due on the balance of the contract. The administrator did not provide for these payments, and the infant was powerless to act, and it would be going farther than any court or case has gone, to declare that for such remissness, under such circumstances, a forfeiture of the contract should be declared. For failing to pay the pitiful sum of two hundred dollars on the very day it was due, when sixteen hundred dollars had been promptly paid, and the party an infant incapable of action and without a guardian—to decree a forfeiture under such circumstances, is asking more than justice will allow. There can be no pretense here, that the complainant had, wantonly, and in the exercise of an arbitrary will, or caprice, refused to pay on the day, he having the means and the power to make the payments, nor any other pretense, the naked fact being alone relied on, that the payment was not made on the day. Tyree et al. v. Williams et al., 3 Bibb, 367.
But let us look at this case a little further.
The defendants Morgan, made the purchase of Whitney of this child’s interest, on the 2nd of April, 1852, two months before he was in default for the third installment. At that date, there was due on the contract about sixty dollars only. The administrator did not pay, being unable or indifferent; the little child, “ muling and puking in his nurse’s arms,” unconscious of its own existence except through its appetites, could only cry for food, and now, to visit him with the severe penalties demanded by the defendants, would be harsh indeed.
Though Whitney’s payments to Sheffield were in arrear, time not being of the essence of their contract, it could not have been declared forfeited, on that account, for a specific performance would have been decreed, on payment, or tender of the whole purchase money if made on the day of the last payment, no intention of abandoning the contract being manifested, and that being the day on which a deed could be demanded.
And that this money due from Herrick, was to be applied to save this contract from forfeiture, cannot be true, as appears by *499the defendant, James Morgan’s own showing in his amended answer. It will be remembered, that Herrick succeeded to one equal half of this contract, and was to pay, and did pay about the time it was due, 1st June, 1850, one hundred and twenty-five dollars, being the one-half of the amount due from Whitney to Sheffield on that day, and that the administrator paid him the further sum of ninety dollars in the summer of 1851, being nearly two-thirds of the amount then due. Now if this money due from Herrick was necessary to save this contract, why did not Whitney apply these amounts or some portion of them, to extinguish so much of it—$215—as it would extinguish ? That he did not, is shown by James Morgan’s amended and sworn answer, for he there says, “ at the time of his purchase from Whitney, April 2nd, 1852, there was due, owing and unpaid on said contract, between Whitney and Sheffield, the following sums of money, viz.: $250 due June 1st, 1850, $250 due June 1st, 1851, together with taxes and the annual interest,” etc., being the amounts precisely, which Whitney owed Sheffield, when he sold to Herrick.
That the money due from Herrick was wanted for any such purpose may be true, but when received, that it was not so applied, is most certainly true. Mr. Ogden’s testimony shows, Whitney was in arrear on his payments, independent of Herrick’s, up to the time Morgan made the purchase, and Whitney’s whole conduct shows an intention to defraud Herrick, for when he received of him $1,380, at the time of making the purchase, he paid not one dollar of it over to Sheffield, though then largely in arrears.
This then seems to be a mere pretense, and as Whitney had not appropriated any portion of the payments made by Herrick to the satisfaction of his contract with Sheffield, it is not probable he would have so appropriated any future payments, and would suffer the contract to be forfeited in reality.
Through Whitney’s remissness, his contract with Sheffield, would, most probably, have been forfeited, as we have seen he appropriated none of the moneys he received, to save it.
But the defendants say, we have received none of the money Herrick paid to Whitney, and have paid out large sums to save ■the estate from forfeiture, and ample justice can be done complainants, by decreeing against Whitney a return of the purchase money—our purchase should not be disturbed—the estate has risen rapidly in value, and is now worth twelve or fifteen thousand dollars.
Was it the fact that Whitney was able to respond in damages, we should not deem recourse to him, as in any degree meeting *500the just demands of this case. It would not afford adequate compensation.
No part of the defense seems to us, to have any merits. One of the defendants, James Morgan, is a member of the bar, and .it is not an unjust presumption, that he was fully cognizant of the whole case, and designed to do, what he attempted. We •cannot recognize, under the circumstances of this case, any claim, he and his co-defendants may suppose they have to the favorable •consideration of the court, and we want no other authority to sustain us in disposing of it, than those pure and universally ¡acknowledged principles of equity and justice, which should have their lodgment in the breast of every court.
The exceptions to the master’s report, are not deserving of ¡special notice.
The first could not prejudice, materially, the defendants, and ¡the second, is the amount of the douceur, $67.10, the Morgans paid to obtain the chance to do a wrong. It was a small sum to pay for the hazard, and we think no good claim is shown, to de•mand its restoration. The defendants’ case, in no aspect, has ■any merits whatever, as we think.
There is, however, a want of proof of the heirship of Thornton .Herrick, though this fact does not seem to have been contested, ■but was considered, on the hearing, and at the time of passing ■the decree, as not in issue between the parties. It is a material ffact, and which, though not expressly denied, not being admitted •by the answer, must be proved. DeWolf v. Long, 2 Gilm. R. 679. For this reason alone, the decree must be reversed, and ¡the suit remanded, with directions to the court below, to hear ;proofs on this point only, and if this allegation of the bill, as to ¡heirship, be proved, then to enter a decree in conformity with -.this opinion, the costs of this appeal to abide the event of the ¡suit.
Decree reversed.