The opinion of the court was delivered by

Certain lands belonging to the estate of plaintiff's testator, situate in Lancaster County, •were ordered to be sold by decree of the court for partition, the terms of sale as expressed in the order being one-third cash, the *227balance in two equal annual instalments next thereafter, to be secured by bond and mortgage of the premises. The sale was ordered to take place on salesday in October, 1888. On the day of sale several verbal conditions, not appearing in the order of sale, were announced by plaintiff’s attorney, to wit: “That no more than one-third of the wood should be cut off the land until the payment of the second instalment, and not more than an additional one-third should.be cut off until after after the payment of the last instalment, and that said additional terms would be made one of the conditions in the mortgage deed, a violation of which would subject the mortgagor to foreclosure. One Alvin Massey becamé the purchaser, he being the highest and last bidder at the sale. It appears, however, that Massey was not present when the verbal announcements hereinabove wrere made. The advertisement of sale did not include the conditions announced verbally at the sale.

There is some controversy whether Massey was willing to comply with the terms of sale as advertised, but there is no doubt that the vendor expected and demanded that Massey should comply with the terms as announced on the day of sale, and his attorney prepared the necessary papers to that end, embracing in the mortgage prepared the conditions as to cutting the timber and the falling due of the entire bond in the event that said conditions were violated. Massey refused to comply with these conditions, and on the 6th of April, 1889, upon a notice served on Massey on the 5th of March preceding, the plaintiff obtained a rule against Massey to show cause from his honor, T. B. Fraser, why he should not be compelled to comply with his bid, or be attached for contempt, and also why the said land should not be resold at his, Massey’s, risk, if he continues to be in default at the hearing. The affidavit upon which this rule was obtained contained a statement of the terms of sale, as verbally announced on the day of sale, and it was the bid of Massey under these terms that plaintiff sought to enforce by the rule. Massey made return to the rule, stating that he bought the land under the advertisement of sale made by the executor, in which the terms announced were those contained in the order of the court only, and that he was not present when the verbal conditions were *228announced, and he had no knowledge thereof until after said rule, when the plaintiff declined to execute conveyance unless said terms wore complied with, which he, Massey, refused to conform to.

The matter, it seems, was referred to a referee, who found, as a fact, that Massey was not present when the verbal conditions’ were announced, and did not know of said announcement, and, therefore, that no such conditions existed as to Massey, and that he was bound by his bid, as we suppose, independent of the ■conditions; and he recommended that Massey have leave to comply within a time to be fixed by the court, failing in which, that the land be resold at his risk, &c.

' On exceptions to this report his honor, Judge Pressley, in substance, confirmed the result of this report of the referee, holding that the verbal conditions were nothing more than what the plaintiff might demand, or rather, enforce, without special stipulations thereto in the mortgage, in fact, even less than the plaintiff’s rights to prevent waste, &c., and acts impairing the security of the mortgage; and that said verbal conditions, or partial waiver of the rights of the plaintiff, as the judge expressed it, if not accepted by Massey, still did not relieve him from his obligation to comply with his bid, which he might be compelled to do. But inasmuch as the report of the referee had recommended a resale at the risk of Massey as the proper remedy in the case, to which the plaintiff had not excepted, he would adopt that course, and he ordered a resale, upon Massey failing to comply with his bid within thirty days after his decree therein was filed, with ten dollars costs for the rule. This decree was dated January, 1890, one year and some two months from the sale, all of which time Massey was out of possession, and against whom the interest on the purchase money under the decree accrued.

We think the terms attempted to be added to the order of sale by the verbal announcement on the day of sale were illegal and without authority of law, and could not have been enforced against Massey. Bailey v. Bailey, 9 Rich. Eq., 895. It may be. however, that had the plaintiff sought to enforce the sale without these conditions in proper time, he might have been successful ; but no effort of this kind was made. In fact, this was *229declined, the appellant being willing, but the respondent refusing, and the object of the rule below was not to enforce the sale according to the understanding of the appellant, but with the conditions objected to by the appellant. We do not concur with the presiding judge, that the conditions were merely in the nature of a waiver of respondent of rights to stay waste, &c., &c., which he had from the character of the case, whether expressed or not. Doubtless it is true, that a mortgagee may stay waste, or enjoin any other act of the mortgagor tending to impair the recovery of the mortgage, but we do not see how the extent of the waste could be determined in advance, unless by consent of all parties. Besides, the condition that upon a violation of the stipulations that the entire debt should become due, was certainly a new term or condition outside of any right of the plaintiff.

Whatever may have been the right of respondent to enforce the sale in accordance with the terms of the order of sale, if respondent had so demanded within a proper time, we think, under the facts here, the appellant having been kept out of possession for so long a time with interest accruing on the purchase, and with no opportunity to avail hitnself of the benefit of his purchase, it would be inequitable now to order a specific performance. The delay does not seem to have been occasioned by the appellant. On the contrary, the respondent is responsible for that, and now we think it is too late for him to fall back on the contract, as understood by appellant, after having failed to enforce it with the superadded terms.

It is the judgment of this court, that the judgment of the Circuit Court be reversed.