ALLEN v. O’DONALD. 23
it. Hart v. Ten Eyck, 2 Johns. Ch. 87; Story, Eq. Pl. § 849a; 2
Story, Eq. Jur. §§ 1528, 1529. No evidence is oifered by the de-
fendants on the point. In their answer they allege that the only
living person who is cognizant of the fact of the extension of time
is the defendant Lewis, and he is interested against them; and the
facts can only be obtained from him by subpoenaing and examining
him as a witness in the cause, which they have failed to do. It is
not necessary to say, in this community, that, if the defendants or
their counsel believed that Mr. Lewis had made any such arrange-
ment with Mr. Cross in his life-time, they would not have hesitated
to call him as a witness, and take his testimony on the subject, let
` his interest in the result be what it may.
However, it is argued that the conveyance of the premises to Mr.
Lewis on the trusts mentioned was in effect an extension of time for
payment to Cross. But there is nothing in tl1e facts or the nature of
the transaction to support the assertion. Cross was the legal owner
of the property he mortgaged, and could sell it, subject to the mort-
gage, to whom he pleased; and all that Lewis did with it he might
have done himself. But it was convenient and satisfactory to the
parties that one of the creditors should become the trustee of the legal
title in this amicable attempt to dispose of the property and apply
the proceeds on the indebtedness. The surety had no right to object
to the proceeding, and if the property was fairly disposed of, under
the circumstances, she could not be injured by it. And it may be
even admitted that this arrangement with Mr. Lewis fairly implied
that the firm of Allen & Lewis would, while it was being carried out,
forbear to sue the debtor. But there is no evidence of any agreement
thereabout, or consideration therefor. An agreement to give the
debtor time is not bindingunless made for some definite period, and
on a sufficient consideration; and although the creditor should, in
pursuance of an agreement or understanding, express or implied, act-
ually forbear to sue for a given length of time, but without any con-
sideration therefor, the surety is not thereby discharged. And the
reason is apparent. Such an arrangement is not binding, and there-
fore it does not prevent the surety from paying the debt, and proceed-
ing with the right of the creditor to enforce the claimiagainst the
debtor. Brandt, Sur. § 296.
Second. The property could not be lawfully sold otherwise than on
the decree of a court, given in a suit to enforce the lien of the mort-
gage, as provided therein.
This provision in the mortgage, giving the creditors a right, in
case of default in payment, to enforce the lien of the mortgage by
legal proceedings, is a mere superiiuity. The law gave them that
right; and, notwithstanding the provision, the creditors and the
debtor were at liberty to make any disposition of the property they
saw tit, for the purpose of paying the debt, or any portion of . it, and
the surety has no right to complain of it, unless she can show she