delivered the opinion of the court.

The relative situation of the parties was such that it devolved the duty on the'trustee to carry out the agreement as to the terms of the sale under the deed of trust,1 or to postpone the sale until Yerger should have an opportunity to assert his right to an account-in a court of equity, which right he had waived in consideration of the agreement of Odeneal that the property should not be sold at a less sum than four thousand eight hundred dollars. This agreement had been submitted to and approved by Helm, the president of the bank, holding the secured debt. The contract operated as a modi*50ficatiou of the power of the trustee to sell on the day named in the notices of sale, and one having notice of the modification could not acquire title to the property by purchasing at a sale made in violation of the contract. A title so acquired would be subject to the right of Yerger to ratify or disaffirm.

The fact that the holders of the note considered it as paid by thé purchase, was not a compliance with the terms of the agreement. By the contract the sum agreed on was to be bid for the property at the public sale. It was not within the power of either of the parties, without the consent of the other, to add to or subtract from the contract as made, or to substitute another thing for that agreed to be clone. Helm, as president of the bank and purchaser of the property, knew the price which the trustee had agreed he should bid, he had ratified and thereby bound himself to the performance of the contract. He knew from the recitals of the deed executed to him by the trustee that the contract had been violated. He must be presumed to have known that a credit was entered on the note for a less sum than he had agreed should be offered. The receipt of the deed and the entry of the credit on the note were equivalent to an assertion by him that he was the purchaser of the property at the price named in the conveyance, and that the excess of the note above the purchase-money remained due and unpaid. The books of the bank and the note itself were exhibited to Yerger when he called to inspect them, and from them he must have inferred that the bank claimed a balance against him on the note. While the several officers of the bank testify, and we have no doubt truthfully, that the note was considered as paid and would have been surrendered to Yerger if it had been demanded by him, yet it remains true that no offer was made by the bank to surrender it, and when Yerger called to examine the books the note was exhibited to him with a credit entered on it of less than the balance due on it. Nothing was said then or at any other time advising him of the fact that the bank considered the note as paid, or that it was subject to his control; he had, therefore, a right to infer that the balance appearing due would be claimed against him.

What delay in proceeding by the complainant in cases of this *51class will be held as a bar to relief must depend upon the facts and circumstances of each particular case. Courts of equity will refuse relief to one who, having a right, neglects to assert it until its assertion would be a surprise upon the defendant and involve him in litigation in reference to a matter which he, by the conduct of the plaintiff, had been led to believe had been abandoned. Without attempting to indicate any particular time which should be held to be a waiver of his rights by a complainant seeking to avoid a sale in those cases in which possession of the property has been yielded to the purchaser at the sale, we are of opinion that the plaintiff herein was rightly admitted to redeem. The mortgaged property had for several year^ previous to the sale been in the possession of the trustee Odeneal, who was also a part owner of .the mortgage debt, under an agreement that the rents and profits of the property should be appropriated to the payment of this debt. It was in his possession at the time of the sale. The sale was made in admitted violation of the terms of the contract, by which it was to be governed, and was followed by no actual change of possession of the property. Those who had before held as mortgagees in possession thereafter claimed to hold as purchasers under the sale. This was a mere assertion of a right. On the other hand, the mortgagor promptly repudiated the sale, and denied that his equity of redemption had been cut off. This was an equally strong assertion of a counter right by the complainant. Whether the sale was valid or voidable, the complainant was not entitled to possession of the property. If the purchaser acquired title'at the sale, he was entitled to hold possession as owner; if he did not, he was still in possession as mortgagee, and entitled so to continue until the mortgage debt should be fully paid. Under these circumstances we are of opinion that the right of the mortgagor to relief would not be barred by the lapse of any time short of that which would operate as a bar to a bill to redeem.

Decree affirmed.