The instruction to the jury, to which exception is taken, is predicated on the correctness of the two positions of the defendants, which it is therefore necessary to examine.
*1631. Accepting the evidence of the defendants as to the tender to be true, it shows that after the first note, secured in the deed in triist, became due, the creditor Loftin promised to extend the time of payment, and that before the sale tender was made of the amount of the first note, and interest on the whole debt, and, in our opinion, these facts do not impair the title of the plaintiff acquired at the sale.
The promise to extend the time of payment of the first note is without consideration, and therefore cannot be enforced (Bank v. Sumner, 119 N. C., 595; Lumber Co. v. Christenbury, 155 N. C., 260), and as by the terms of the trust deed the whole debt became due upon failure to pay either note, it was necessary, in the absence of an agreement supported by a consideration, to tender payment of all of the notes, which was not done.
Again the defendant was present at the sale, and saw the plaintiff buy without protest on his part, and, as said in Burnett v. Supply Co., at this term, “There is a wholesome principle in our law to the effect that one who stands by and witnesses in silence a wrongful sale of his property, under circumstances that call on him to speak, will not after-wards be heard to impugn the validity of the sale in so far as the title of the purchaser is concerned.”
The principle, while recognized, was not applied in that case, because the action was not against the purchaser to redeem, but against the mortgagee, who had wrongfully sold the land when there was nothing-due.
One who stands by and sees h-is property bought by another, without protest and without notice of his claim, “Is not permitted to assert his interest afterwards as against the innocent buyer of the property, and to. his prejudice, because he was silent when he should have spoken, and now the law will not hear him when he should be silent. He is equitably estopped- from being heard and asserting his claim to the property.” Hardware Co. v. Lewis, 173 N. C., 295.
If, however, the tender was good, and if the defendants are not estopped, the plaintiff is not affected, because he is a purchaser for value without notice of the tender.
The question was discussed in Debnam v. Watkins, 178 N. C., 240, and, after placing this Court among those holding that a mortgage passes the title, and is not a mere security, the Court said: “It seems, therefore, that in those States a bona fide purchaser for value and without notice of tender gets a good title. It is also held that a mortgagor who has notice of an intended sale and allows it to proceed without objection .cannot afterwards show a tender, or even a payment in full, of the. mortgage debt, and thereby defeat the title of a bona fide purchaser for value without notice. Cranston v. Crane, 97 Mass., 459; Jones on Mortgages, sec. 1788.”
*164It is therefore apparent that the first position of the defendants cannot be sustained.
2. The second question depends on the construction of the paper-writing executed on the same day as the deed in trust.
Is it a contract, binding on the parties, which is to be construed with the deed, and which operates to modify its terms by postponing the time of sale, or is it an option or offer which would have no legal effect until accepted by the creditor ?
It is called an option by the parties, and while this is not controlling, “There can be no doubt that in determining the meaning of an indefinite or ambiguous contract, the construction placed upon the contract by the parties themselves is to be considered by the Court. ... In fact, where, from the terms of the contract or the -language employed, a question of doubtful construction arises, and it appears that the parties themselves have practically interpreted their contract, the courts will generally follow that practical construction. It is to be assumed that parties to a contract know best what was meant by its terms, ánd are the least liable to be mistaken as to its intention; that each party is alert to protect his own interests and to insist on his rights, and that whatever is done by the parties during the period of the performance of the contract, is done under its terms as they understood and intended it should be. Parties are far less liable to have been mistaken as to the meaning of their contract during the period while harmonious and practical construction reflects that intention, than they are when subsequent differences have impelled them to resort to law, and one of them then seeks a construction at variance with the practical construction they have placed upon it of what was intended by its provisions.” 6 R. C. L., 852 and 853.
It is not signed by the creditor, and ordinarily both parties sign a bilateral written contract.
The creditor does not agree to buy, and in fact there is no promise on his part contained in the writing except upon condition that he accepted the option and took a deed for the land.
The paper and the trust deed were executed on the same day as parts of the same transaction, and “The general rule is that in the absence of anything to indicate a contrary intention, instruments executed at the same time, by the same parties, for the same purpose, and in course of the same transaction, are, in the eye of the law, one instrument, and will be read and construed together as if they were as much one in form as they are in substance.” 6 R. C. L., 851, and they should be held to make one harmonious whole, if practicable, and not destructive of each other. .
*165Eead in tbe light of these rules of construction, and considering the language used by the parties, the transaction appears to be this:
The defendants induced Loftin to pay off the Edwards mortgage, and executed the deed in trust to secure him, in which the debt was divided into four annual payments, differing in amount with provision that the whole debt should become due upon failure to pay either note, and with power to sell in that event.
They also gave Loftin the option to buy the land, seven acres, at $200 an acre, within the four years while the notes were maturing, but this option could not be exercised by Loftin except upon failure to pay one of the notes, and if exercised, and a deed made to Loftin, it was stipulated that the defendants should have three months from the date of the deed to redeem, and so understood, the option contract did not prevent the exercise of the power, because Loftin did not elect to buy, but preferred to rely on the trust' deed, and on the day of sale renounced all claim under the option in the presence of the defendants, to which they made no objection.
If this is not the correct view, and the 'position of the defendants should be maintained, the power of sale in the trust deed is meaningless, and might as well be stricken out, because it could never be exercised. Certainly not before default, and not afterwards if Loftin in that event was obliged by contract .to buy at private sale.
We are therefore of opinion that there is error in the instruction to the jury, and that on the facts as now presented the "plaintiff is the' owner of the land.