to consider the nature of that right, against whom it lies, and its incidents or qualities.

First, then, of the nature of an equity of redemption.

gagee; but he may still redeem the first mortgage until foreclosure. Thompson v. Chandler, 7 Greenl. 377.

The grantor of real estate, in trust that the trustee sell the same, and apply the proceeds to the payment of the debt intended to be secured thereby, may redeem at any time before a sale is made. Hogan v. Lepretre, 1 Port. 392.

If an execution be levied by appraisement upon lands mortgaged, as the estate of the mortgagor, without any deduction on account of the incumbrance, this will pass the right in equity to the judgment creditor, who will be entitled to his bill in equity to redeem in the same manner, as if he had become a purchaser upon a regular sale. White v. Bond, 16 Mass. 400. Warren v. Childs, 11 ib. 222.228.

Where the husband and wife mortgage their estate, and the mortgagees assign the mortgage, and the equity of redemption is afterwards sold on an execution, issuing upon a judgment recovered against the husband by his creditors, and purchased by the assignee of the mortgage: Held, that after the death of the husband, the wife is entitled to the land upon paying the mortgage only. Peabody v. Patten, 2 Pick. 517. But a creditor of the husband, by attaching the equity, and purchasing it on sale by virtue of an execution, has a right to redeem, and hold the estate during the life of the husband. Ib. 517. 520.

If the mortgagor convey the estate mortgaged to two or more either in severalty or in common, either grantee may redeem the mortgage by paying all the money due thereon. Taylor v. Porter, 7 Mass. 355.

Where a right in equity of redeeming mortgaged land is attached on mesne process, and afterwards sold on execution, a second mortgage, made in the interval between the attachment and the sale, is valid; and the second mortgagee, or his assignee, may redeem the right in equity so sold. Bigelow v. Wilson, I Pick. 485.

A man may mortgage his lands by successive mortgages without limitation, and the puisne mortgagee will be entitled to redeem, however remote his title may be from the legal estate. Newall v. Wright, 3 Mass. 138.

If several persons are interested in an equity of redemption of mortgaged estate, either as owners in common thereof, or each as owner of a distinct parcel of the mortgaged premises, any one of them may redeem, by paying the whole amount due on the mortgage; and the party removing the incumbrance is entitled to remuneration. Gib. son v. Crehore, 5 Pick. 146. Taylor v. Porter, 7 Mass. 355.

If the mortgagee having recovered judgment against the mortgagor, for a debt secured by the mortgage, cause the equity of redemption to be sold on execution, the sale will be void, and the mortgagee will have the same right to redcem as he would have had if no such sale had been made. Atkins v. Sawyer, 1 Pick. 351.

If the mortgage be redeemed by any other person than the purchaser of the equity, such purchaser cannot avail himself of such payment against the mortgagee or his assigns. Forster v. Mellen, 10 Mass. 421.

Where a husband and wife mortgage the wife's land, and the equity of redemption is sold on execution, for the husband's debt, the purchaser acquires no greater right than the husband had before the sale. He may redeem the mortgage, and hold the estate during the life of the husband and no longer. Peabody v. Patten, 2 Pick. 517. Where a right in equity of redeeming mortgaged real estate is sold on execution to a creditor of the mortgagor, the mortgagor is entitled to redeem such right in equity upon repayment of the purchase-money and interest without paying other demands of the purchaser against him. Loring v. Cooke, 3 Pick. 48.

If a mortgagor have contracted to convey the right in equity to a third person who has thereupon in pursuance of such bargain, and on his own account, paid to the mortgagce the money due by the mortgage, the mortgagor shall not afterwards, if he rescind the bargain, be permitted to avail himself of the money so paid, in a bill to redeem against the mortgagee. Howard v. Agry, 9 Mass. 179.

Upon a bill to redeem, only simple interest is to be computed upon the mortgage debt; but if the rents and profits received by the mortgagee exceed the amount expended for repairs, the excess will be applied from time to time to the payment of interest accrued, before any part is applied to the reduction of the principal, Gibson Crehore, 5 Pick. 146. Saunders v. Frost, 5 ib. 259.

It has been already shewn, that by the common law, the legal ownership of the land on the execution of the deed of mortgage, is transfered to the mortgagee, subject to be divested on performance of the condition,

Land was conveyed in trust that the trustee should sell the same, and apply the proceeds, to pay the debt which the conveyance was intended to secure. The creditor purchases the land but does not take a deed thereof, and afterwards abandons the same, thinking his title not good if obtained direct from the trustee, and causes the trustee to sell to another who was to convey to himself. Held, that neither the first nor second sale could be set up to oppose the grantor's right to redeem, on payment of the debt and interest secured by the conveyance, Hogan v. Lepretre, 1 Port. 392. A mortgagee being absent from the town where he lived, was requested by the mortgagor to make out and furnish to him within a reasonable time an account of the sum due on the mortgage; he replied, that if the mortgagor would call on him when at home, he would give him all the information in his power. The mortgagor, without calling, brought his bill to redeem. Held, that this was not a demand and refusal or neglect to account, sufficient to sustain the bill. Fay v. Valentine, 2 Pick. 546.

Where an equity is sold on execution, in order to redeem such equity, the mortgagor must make an unconditional tender of the purchase-money; and where the mortgagor offered the money, but insisted on the purchaser's executing a release of the right in equity, which he refusal to do, the tender was held insufficient to support a bill to redcem. Loring v. Cooke, 3 ib. 48.

A mortgagee being asked at his office in Weston, by the assignee of the mortgagor, what sum was due on the mortgage, answered, that he owned the whole estate. On being again asked, he said the assignee would find out at the records. Being asked what money would answer, he replied, nothing but specie; that if the money should be tendered, he should do as he thought proper about taking it; and that if he took it he would discharge the mortgage on the records. He said further that his papers were at Cambridge, and he could not ascertain what was due. Held, that this was a sufficient demand and refusal to sustain a bill to redeem. Willard v. Fiske, 2 Pick. 540.

Tender of money in a bag made at the window of the house, to redeem a mortgage, the creditor being at the window, and not admitting the debtor within the house, is sufficient. But such tender, made after daylight is gone, is too late, ib.

Redemption in Pennsylvania is not a principle of equity, but a legal right. Anderson v. Neff, 11 Serg. & Rawle, 223.

In Massachusetts the mortgagor may redeem by paying the money due, at any time within three years after the lawful entry of the mortgagee for condition broken. Erskine v. Townsend, 2 Mass. R. 495. If the mortgagee have entered and taken possession before condition broken, and continued in possession thereafter, the three years do not commence until he give notice to the mortgagor that he shall thenceforth hold the possession for condition broken, or in other words, for the purpose of foreclosing the mortgage. Ib. But if the mortgagee have not taken possession before the condition broken, and shall lawfully enter and take possession after the condition is broken, the three years will commence from the time of such lawful entry, which may be in pais or in execution of a judgment of court in a real action. Newell v. Wright, 3 Mass. Rep. 135. Where the mortgagee enters before the condition is broken, no new entry is necessary to enable him to commence the foreclosure, but only some public declaration of his intention to foreclose, or act of notoriety, from which notice to the mort. gagor may be presumed, showing that the mortgagee continues in possession with a different view from that which he entered. Newell v. Wright, ub. sup. Scott et al. v. M'Farland, 13 Mass. R. 309. But the mere claim of the mortgagee to hold the premises as his own, is insufficient. If he make no such public declaration of his intention, or do no such act of notoriety, the mortgagor may elect to consider him in pos. session claiming to foreclose, by bringing his bill in equity, at any time within twenty years after a tender of performance, according to the condition of the mortgage; and such tender will avail as much as if a public entry, or entry under process of law, had been made. Pomeroy v. Winship, 12 Mass. Rep. 514. But if the mortgagee enter after condition broken, it shall be presumed he entered for that cause, and the time for foreclosure will ran from that entry. Ib. Taylor v. Weld, 5 Mass. R. 109. But a bare entry, although in the presence of two witnesses, according to the statute, is not suffi cient for the purpose of foreclosing the equity of redemption. The entry must be

and that a mere right of re-entry on performance of condition remains in the mortgagor, of which, being neither alienable nor devisable prior to the recent statutes, (a) advantage might be taken by him or his heirs

(a) Vide 1 Vict. c. 26, s. 3, and 8 & 9 Vict. c. 106, s. 6; by which rights of entry are made devisable and alienable by deed. Infra, p. 26.

open and peaceable, and actual possession must be taken. The object intended by the law is, that the mortgagor may know when the three years commence beyond which his right to redeem will cease. Nothing short of actual netice to the mortgagor will supply the want of a continued possession. Thayer et al. v. Smith, 17 Mass. Rep. 429. But a mortgagee is not obliged to have his deed with him when he takes pos. session for condition broken, nor to make any express declaration that he enters to foreclose; it is sufficient if it appears that the entry was for non-performance of the condition. Skinner v. Brewer, 4 Pick. 468, and an authority from the mortgagor to deliver such possession, need not be in writing. Ib. Where the mortgagee went to the land mortgaged, but not upon it, for the purpose of taking possession for condition broken, and soon after actually entered upon the land and continued there for three years to take the profits, the mortgagor having notice that he was in possession for breach of the condition and assenting thereto, it was held that the right in equity to redeem was foreclosed. Ib. Where a mortgagor, after having recovered the conditional judgment in an action for the possession, entered in pais, for condition broken, and afterwards entered under the judgment, this last entry was held to be a waiver of the first. Fay v. Valentine, 2 Pick. R. 546. There must be notice either express or im. plied to the widow, or an entry and three years' possession will be no bar to a bill by her to redeem, in order to have her dower. Gibson v. Crehore, 5 Pick. R. 146. So, if after condition broken, the mortgagee recover judgment for possession at common law, where the object of the suit was not to foreclose the mortgage, the mortgagee may be considered in possession for condition broken at the election of the mortgagor, so as. to entitle him to his bill in equity. Green v. Kemp, 13 Mass. R. 519; Pomeroy v. Winship, ub. sup. ; Partridge & ux. v. Gordon, 15 Mass. Rep. 486. Under the statute of 1798, ch. 77, the mortgagor could not maintain a bill in equity to redeem, without averring and proving a tender of the sum due, which he must ascertain at his peril, unless it should appear that the rents and profits amounted to the sum due by the mortgage. Tirrell v. Merrill, 17 Mass. 117. But by the statute 1821, ch. 85, where the mortgagor or person having a right to redeem, shall bring his bill in equity for redemption, within three years next after the mortgagee or his assigns shall have actual possession, for the condition broken, and shall in his bill offer to pay such sum as shall be found justly and equitably due, or to perforin such other condition as the case may require, such offer shall have the like force and effect as a tender of payment or performance made before the commencement of the suit, provided that the mortgagee or his assigns shall on request have refused to render an account of the sum due on the mortgage. And the act further provides, that when any mortgage for the payment of money only shall be made, and the whole sum due thereon shall have become payable, the mortgagor or his assigns may on payment, or tendering payment, or bringing their bill according to the same act, maintain their bill for redemption, although the mortgagee or his assigns shall not have entered or obtained actual possession of the mortgaged premises for condition broken. The act also provides, that no bill founded on a tender of payment or performance shall be sustained, unless filed within one year next after the tender. To support a bill in equity for redemption under this act, without a tender, there must be a demand on the mortgagee to render an account, and a refusal to account, and the demand must be so made as to time and place, as that he may have an opportunity to account. Willard v. Fisk, 2 Pick. 540; Fay v. Valentine, 2 Pick. 546. The tender, if relied upon, must be unconditional, and the mortgagor cannot insist upon a release. Loring v. Cook, 3 Pick. 48. If the mortgagee, having entered for condition broken, refuse to relinquish the possession after payment or tender of performance, the only remedy for the mortgagor is by bill in equity under the statutes. Parsons v. Welles, 17 Mass. 419. Hill v. Payson, 3 Mass. 559. Pomeroy v. Winship, ub. sup.; Perkins v. Pitts, 11 Mass. 134. The mortgagor may maintain a bill in equity for redemption, although he be in possession. Hicks v. Bingham, 11 Mass. 300. If there be a question as to the payment of the money due on the mortgage, it may be determined by the court without a jury. Parsons v. Welles, ub. sup.

alone.

These doctrines were at first attempted to be applied in equity to the right to redeem after condition broken, without reference to the principles on which that right was founded, and accordingly, in Roscarrick v.

The assignee of a mortgage is entitled to the same relief that the mortgagor would have been entitled to against the mortgagee. Taylor v. Porter, 7 Mass. 355; Hills v. Elliott, 12 Mass. R. 26; Warden v. Adams, 15 Mass. R. 233; Worthington v. Bicknell, 2 Har. & Johns. 58. The judgment in a writ for foreclosure under the statute, does not give an absolute right to possession, and the action may be considered as a mode of recovering the debt or damages for the breach of the condition. The mortgagee is not entitled to his writ of possession until sixty days after judgment and neglect of the defendant to satisfy it. Fitzburg Cotton Manufacturing Company v. Melven, 15 Mass. 270; Wilder v. Houghton, 1 Pick. 87. The conditional judginent will be for principal and interest, 2 Mass. 118. In Pennsylvania, if the mortgagor neglect for twelve months after the time when the conditions should have been performed, to fulfil them, the mortgagee may, by the act of Assembly of 1705, sue out a writ of scire facias, requiring him to show cause why the lands mortgaged should not be taken to pay the mortgage money. 2 Yeates, 518. 534; Sternhauer v. Wetman, 1 Serg. & Rawle, 441. And judgment will be rendered in this suit for the principal, debt and interest, Dorrow v. Kelly, 1 Dall. 142; and if this be not paid, the mort. gagce upon a writ of levari facias, may take and sell at vendue the mortgaged premises to satisfy the debt. Nace v. Hollenback, 1 Serg. & Rawle, 540; Marshal v. Ford, 1 Yeates, 195. In Massachusetts, if the mortgagor convey to two or more, either may redeem. Taylor v. Porter, 7 Mass. 355. And if he mortgage successively the same lands, the puisne mortgagee will be entitled to redeem. Bigelow v. Wilson, 1 Pick. 485; Newell v. Wright, 3 Mass. 138. The right in equity to redeem cannot be released or passed by parole. Scott et al. v. M'Farland, 13 Mass. 309. And the giv ing a new security for the debt, although of a higher nature, will not merge it or discharge the mortgage. Davis v. Maynard, 11 Mass. R. 242; Cary v. Prentiss, 7 Mass. 63. Nor, it seems, will the assignment of a bond of defeasance to the assignee of mortgagec. 11 Mass. 191. But a release of the judgment for the debt it seems will discharge the mortgage. Perkins v. Pitts, 11 Mass. 125; Porter v. Perkins, 5 Mass. 233.

The right which the mortgagor has to redeem, may be taken and sold on execution; and if the mortgagor does not redeem within the time limited by law, viz. one year, his whole interest is gone, so that he cannot redeem the lands of the mortgagee, even if the purchaser of the equity should not redeem. Ingersoll v. Sawyer, 2 Pick. 276. If the purchaser, on payment or tender to him of the money paid by him, within a year, refuse to release to the debtor or his assignee, the only remedy for them is by bill in equity. Bigelow v. Wilson, 1 Pick. 485. After a sale on execution of an equity of redemption, the mortgagor has an interest remaining in him which he may convey by way of mortgage, and his right of redeeming this mortgage is assignable, and may be attached and taken and sold on execution. Reed v. Bigelow, 5 Pick. R., and see Bige. low v. Wilson, 1 Pick. 485; Clark v. Austin, 2 Pick. 528. Yet it has been held, that after the sale of an equity of redemption on execution, there remains nothing in the judgment debtor upon which an execution can operate. Kelly v. Beers, 12 Mass. R. 387. If a mortgagee recover in a writ of entry against a stranger, the judgment may be conditional. Somes v. Skinner, 3 Pick. 52. After an assignment of an estate mortgaged by the mortgagee, if judgment have already been obtained on the bond in the name of the assignor, yet the assignee may have a conditional judgment according to the statute, unless the judgment on the bond have been satisfied. Gould v. Newman, 6 Mass. R. 239. Upon a bill to redeem, the mortgagee must account for the rents and profits from the time of his entry, although for want of notice to the mortgagor, the entry may not operate by way of foreclosure. Gibson v. Crehore, 5 Pick. R. 146. But a mortgagee in possession will not be chargeable with rent due from his tenant who has absconded, unless there have been negligence on the part of the mortgagee. Saunders et al. v. Frost, 5 Pick, Rep. 146. And will be allowed a reasonable commission for his trouble in collecting rents and managing the estate. Gibson v. Crehore, 5 Pick. R. 146. The owner of land made a mortgage, his wife releasing her right of dower, and died; the defendant purchased of the administrator the equity of redemption and took possession; he afterwards paid the debt and took an assignment of the mortgage, at a subsequent period declared that he held for the purpose of fore

Barton,() heard in Chancery the 21st of February, 23 & 24 Car. 2, an equity of redemption was said to be but a mere right; a right to a bill in equity, and not such an inheritance as could be entailed within the

(b) Roscarrick v. Barton, 1 Ch. Ca. 217.

closing; on a bill in equity brought by the widow to redeem, who had no notice of the attempt to foreclose, it was held, that she might elect to consider the defendant in possession under the mortgage, from the time of his taking the assignment, and that he should account for the rents and profits from that time. But that for previous rents and profits he was not liable, no demand of dower having been made upon him before that time, and the statute 1816, ch. 84, entitling a widow to rents and profits until her dower shall be assigned, being intended to give her a remedy only against the heirs of her husband. Gibson v. Crehore, 5 Pick. R. 146. 1 Pow. on Mortg. 261, a. Rand's

note.

A mortgagor is seized of an estate of freehold, and while in possession may convey the mortgaged premises, or may bequeath them as and for dower; or they may be assigned for dower by the judge of probate; and the doweress may enter under such assignment, and hold the same, and redeem the mortgaged premises. Williams v. French, 2 App. 111.

The purchaser of an equity of redemption where the mortgagee has not made an entry, may maintain action of trespass, qu. el. fr. against the mortgagor in possession, to recover the rents and profits, and without previously making an entry. Fox v. Harding, 8 Shep. 104.

Where one having title to land has mortgaged the same, and another having some interest in the land, which might be defeated by the mortgage, has paid the money due upon it to save the interest, the latter has the right to be substituted in the place of the mortgagee, and to hold the land as if the mortgage subsisted in himself, until others interested in the redemption redeem their several shares or interests by the payment of a contribution. Jenness v. Robinson, 10 N. Hamp. 215.

Money paid by a mortgagee to discharge a prior mortgage is a charge upon the land, and must be paid by the mortgagor when he comes to redeem. Page v. Foster, 7 N. Hamp. 392.

On a motion to redeem it appeared that the plaintiffs were assignees of a mortgage which was due at the commencement of their action, and also held a mortgage of the same lands, which was not then due. Held, that the court were to ascertain the sum due on the first mortgage only, and decree a redemption of the premises on the pay. ment of that sum. Lamson v. Sutherland, 13 Verm. 309.

If several persons are interested in an equity of redemption of mortgaged estate, either as owners in common thereof, or each as owner of a distinct parcel of the mortgaged premises, any one of them may redeem by paying the whole amount due on the mortgage; and the party removing the encumbrance is entitled to remuneration. Gibson v. Crehore, 5 Pick. 146. Allen v. Clark, 17 Pick 47. Parkman v. Welsh, 19 Pick. 231.

And the party so discharging the mortgage although he cannot compel the others to contribute, will be considered as assignee of the mortgage, and entitled to hold the whole estate mortgaged until he has been reimbursed what he has paid beyond his due proportion. Gibson v. Crehore, 5 Pick. 146. Brooks v. Harwood, 8 Pick. 497. Allen v. Clark, 17 Pick. 47. Parkman v. Welsh, 19 Pick. 231.

If a mortgagor conveys one of two parcels of land included in one mortgage neither he nor his heirs can, on redemption, compel his grantee to contribute. Allen v. Clark, 17 Pick. 47.

A second assignee of a mortgage paid the first assignee the debt to secure which the mortgage was first assigned, and the residue of the mortgage debt to the mortgagee, by agreement of the partics. The mortgagee and second assignee had notice of an unregistered deed of the mortgaged land, inade prior to the mortgage. Held, that the first grantee of the land was entitled to redeem upon paying the amount which the second assignee paid to the first assignee with interest. Glidden v. Hunt,

24 Pick. 221.

A. made and caused to be recorded, pursuant to statute of 1819, c. 156, a written contract with V. to erect a house on V.'s land, and furnish the materials. After A. had erected the house, V. mortgaged said land, and his wife executed the mortgage