trustee of the legal estate, (vide supra). If the husband survive, he will become absolutely entitled to the money, and the heir at law of the wife (if the mortgage be in fee) will be a trustee for him; but if the wife survive, and the debt has not been reduced into possession, it will survive to her.

The assignee of an insolvent debtor whose wife is entitled to a life estate in freehold land, being obliged to come into equity to enforce his title to the rents during the joint lives of the husband and wife, by reason of the legal estate being vested in a mortgagee, will be compelled to make a provision for the wife (z).

1 Coll. 553; 14 L. J., Ch. 86, N. S. Stiffe v. Everett, 1 M. & C. 39, overruling apparently Bosvil v. Brander, 1 P. Wms. 459, and the doctrine in Bates

v. Dandy, supra; but vide Rees v. Keith, supra.

(z) Sturgis v. Champneys, 5 Myl. & Cr. 97.

BOOK THE SIXTH.

CHAPTER I.

OF THE RIGHT OF REDEEMING.

THE right of redemption being a creature of equity must be subject to the rules of equity. The Court, therefore, will make terms with the mortgagor, if necessary, before it permits him to redeem; and the decree for redemption will be either absolute or conditional, as suits the circumstances of the case. Of this, an instance occurs (a) in which a mortgagee, having purchased the estate for a valuable consideration, a third party made adverse claim to the right of redemption, but was desirous of having the validity of the mortgage tried at law, before he should redeem; the Court held that he ought to declare whether he would redeem or not before he disputed the title, and that if he would redeem he ought to pay the defendant all his principal money, damages, and costs, which he refusing, the Court dismissed the bill: and in another case (b), in which an infant heir of a mortgagor, by his guardian, having fruitlessly endeavoured by proceedings at law to overthrow the mortgagee's title, brought his bill to redeem, but the Court would not allow redemption, unless the mortgagor would pay a sum of money which the mortgagee, on his oath declared he had paid above his taxed costs, in defending the title at law, and the Court also allowed him his costs of taking out administration to the mortgagor as principal creditor.

The general rule of equity however is, that the Court will render its assistance to all pernors of the profits, and all persons claiming any share or interest in the equity of redemption, unless, indeed, their title may have been obtained by fraud, as in a case (c) in which a man having married an infant heiress, procured her to levy a fine, and the father of the husband was one of the commissioners who took the fine, the use of which was declared, on failue of their issue, to the survivor in fee; the wife died without issue, and an infant; the husband afterwards made a mortgage in fee, and died; on which the equity of redemption descended on his uncle, and from him on the father of the husband, and from him on the wife of the plaintiff. The defendant was the heir of the wife, who had bought in the mortgage, and obtained

(a) Smith v. Valence, 1 Ch. Rep. 90; et vide Goodtitle v. Bailey, Cowp. Rep.

601.

L L

(b) Ramsden v. Langley, 2 Vern. 536. (c) Packington v. Barrow, Prec. in Ch. 216.

possession of the title deeds, and got into possession, and, being in possession, had levied a fine, and five years had passed. The deed declaring the uses of the first fine was lost. The bill was filed by the plaintiff and wife for a discovery of the deed, and a redemption. The defendant pleaded the ill practices used in obtaining the first fine, and also his own fine and the non-claim, and that there was no such deed as the bill sought, or if there was, it was obtained by fraud. The plaintiffs proved the execution of the deed. The Court said, that the father, in taking the fine from his daughter-in-law, could not have been aided in equity; and the plaintiffs claimed under him. The bill was dismissed.

It is a general principle that no person shall be entitled to redeem but he who can show a title to the estate of the mortgagor (e), but if there be fraud or collusion to the detriment of third parties, as if assignees (f), or executors (g), or trustees (h), refuse to enforce their right, creditors, legatees, or other parties interested may file their bill for relief (i).

So on the other hand, the mala fides of the mortgagor, or pledgor, in permitting the mortgagee, or pledgee, to deal with the property as his own, may be a ground for equity not interposing to prevent a sale of the property being made by a sub-mortgagee or sub-pledgee (k).

The persons who are to avail themselves of the equity of redemption must be the same as those who, during the time fixed in the mortgage deed, could have redeemed at law, or their representatives or assigns; for otherwise equity would alter the bargain, and, therefore, where a term of years is mortgaged by an executor or administrator, the equity of redemption passes to the representative of such executor or administrator, though he be not the representative of the deceased, and does not pass to the administrator de bonis non of the deceased (1).

The mortgagor must, as a general rule, make all persons interested in the mortgage parties to his bill. As where a mortgagee of a term bequeathed it to trustees, upon trust to sell and divide the produce between thirteen persons by name, it was held all the cestuis que trust were necessary parties to a bill for redemption, although by the will the trustees had authority to give discharges for the purchase money (m). But where the mortgagee has made several conveyances in trust, in order to entangle the affair, and render it difficult to the mortgagor to redeem, it is otherwise, though the persons having the legal estate must be before the Court (n); and the same exception to the above rule seems to exist as in foreclosure, when the cestuis que trust are too numerous to be all made parties, or the trust is a mere general one for creditors (o).

Where the mortgagee has made a settlement of the estate, the first

Y.

(k) Nicholson v. Hooper, 4 M. & C.179. (1) Butler v. Bernard, Freem. Ch. Ca. 139. Skeffington v. Whitehurst, & C., Exch. 1; et vide infra, Greenwood v. Rothwell, p. 515.

(m) Osbourn v. Fallows, 1 Russ. & Myl. 741.

(n) 1 Dan. Chan. Pract. by Headlam, 255; et vide 30th Order of August, 1841. (0) Supra, p. 501.

owner of an estate of inheritance, and those having intermediate estates, must be brought before the Court (p). And if the mortgagor be not a party to the deed of assignment of the mortgage to another party, he may make the original mortgagee a party to his bill, for the purpose of making him account (q); though, it seems, according to the present doctrine, he is not a necessary party; and the same doctrine applies to intermediate assignees (r); but derivative mortgagees must be made parties (s).

Although the executor of the mortgagee in fee must, as a general rule, be made a party to a redemption suit, it seems that it is otherwise in the case of a Welch mortgage (t).

In like manner a bill for redemption cannot be sustained by a party having a partial interest in the equity of redemption, in the absence of the other parties interested therein (u). Thus legatees, whose legacies are charged by the will of the mortgagor upon the equity of redemption, are necessary parties to a redemption suit, instituted by the mortgagor's devisee, in which the mortgagee claims an absolute title by virtue of the Statute of Limitations (v). And in a late case where the purchaser of a mortgage term of 200 years, created out of and determinable with the estate of a tenant for life, filed a bill to redeem a prior mortgage term of 1000 limited by the tenant for life under a power; it was held, that the tenant for life was a necessary party to the bill, though his interest was merely nominal (w). But where executors have mortgaged real estate for payment of debts, they are not necessary or proper parties to a redemption suit, unless the equity of redemption is limited to them (x).

These general observations being premised, it will be necessary more particularly to consider the different parties who are entitled to

redeem.

An equity of redemption will, in its descent, devolve in like manner as the legal estate, that is, to the common law, or customary heir, according to the circumstances of the case (y); to such heir the right of redemption of course belongs; and upon a bill to redeem, by an heir at law, a prima facie title is sufficient (z).

The hæres factus, or devisee of the equity of redemption, is entitled to redeem, and he need not make the heir at law of the mortgagor a party, unless he claims to have the will established (a).

The assignee of the equity of redemption may also redeem, although` the equity has been abandoned for a considerable time. Of this an instance frequently referred to, is to be found in a case before Lord

(w) Hunter v. Macklew, 5 Hare, 238; quare, if in this case the inheritance was represented.

(x) Greenwood v. Rothwell, 7 Beav. 280; et vide supra, Skeffington v. Whitehurst, p. 514.

(y) Vide supra, p. 26.

(z) Pym v. Bowreman, 3 Swanst. 241, note. Lloyd v. Wait, 1 Phill. 61.

(a) Lewis v. Nangle, 2 Ves. 431. Philips v. Hele, 1 Ch. Rep. 101.

Hardwicke (a), in which a person, who is there styled a prowling assign ce, bought in, for a very inconsiderable sum, the equity of redemption which had been abandoned for fifteen years. The Court decreed a redemption on terms, namely, that on taking the account before the Master, he should be allowed to surcharge and falsify only (b), and that the interest on the mortgage should be calculated at 51. per cent. The assignees of a bankrupt may redeem (c). Though neither the 70th section of the 6 Geo. 4, c. 16, or the 149th section of the 12 & 13 Vict. c. 106, enables them to revest the legal estate by tender or payment after the day fixed for making the mortgage absolute, but to anticipate that day (d).

Whether a mortgagor, who has become insolvent and filed his petition under the 5 & 6 Vict. c. 116, and has after the final order obtained a discharge from the creditors, but has failed in obtaining a reconveyance from the official assignee, can maintain a suit for redemption of the mortgage, seems to be doubtful, if the defendant mortgagee demurs or the official assignee resists the jurisdiction of the Court; though as no express power is given by the act, of compelling the assignee to assign a surplus, or of taking off the file or dismissing the petition, or otherwise determining the duties of such assignee, and as it is doubtful if the powers of the commissioners, under this act and the 7 & 8 Vict. c. 96, are co-extensive with their powers under the Bankruptcy Acts, and whether there is any appeal in such cases to the Court of Review, the only remedy would seem to be in the Court of Chancery (e).

Judgment creditors may redeem, although the judgment be with a stay of execution (ƒ); but if leaseholds be in mortgage, a judgment creditor must, before the 1 & 2 Vict. c. 110, have taken out execution before he could redeem (g); for, until then, the judgment was no lien on the leaseholds (h); but this distinction is, it seems, now abolished (i).

A creditor was permitted to redeem whose debt was considered to be released by operation of law, and to subsist in equity only, as in a case (k) of a bond given by husband before marriage to his wife for a sum of money payable after his decease.

The plaintiff in a creditor suit may, after a decree for sale of the real estate, file a supplementary bill for redemption against the mortgagee in order to carry out the sale (1).

Tenant by elegit or statute (m), and sequestrators (2), may redeem. The crown, or its grantee, may redeem on forfeiture of the equity of redemption (o). So the lord claiming the reversion by escheat, may redeem a mortgage term (p).

(i) Vide supra, p. 44.

(k) Acton v. Pierce, 2 Vern. 480; Cha. Prec. 237, nom. Acton v. Acton. (1) Christian v. Field, 2 Hare, 177. (m) Bunb. 347; 2 Eq. Ca. Ab. 594. (n) Fawcet v. Fothergill, Dick. 19. (0) Attorney General v. Crofts, 1 B. P. C. 222. Lovell's case, 1 Salk. 85; 1 Eden, 210.

(p) Downe v. Morris, 3 Hare, 394.