The right to a summary reference at the instance of a mortgagor defendant may be varied by circumstances; [ *544 ] *thus if the defendant, the mortgagor, is in contempt, he cannot obtain the reference on motion under the statute.(1) And if the plaintiff in the foreclosure suit is entitled to an execution at law, the mortgagor cannot, under the statute, obtain a reference to ascertain the amount of principal, interest, and costs, and to restrain proceedings.(2) If the bill is not confined to a mere foreclosure, no order of reference can be made under the statute.(3) As soon as the defendant has entered his appearance, and before filing his answer, if he is desirous of redeeming, he is at liberty to give a notice of motion for the usual reference to the Master to take an account of principal, interest, and costs, and the same order will be made as if the cause had been regularly heard. Where the defendant under this act, moves to refer it to the Master, to take an account of principal, interest, and costs, and to redeem, he must take the statements of the bill to be true; if he desires to dispute or litigate them, he must answer, and put the cause at issue. The order recites the prayer of the bill, that the defendant has appeared, but that he has not answered; recites his admission of the mortgage as stated in the plaintiff's bill, and that the defendant now offering to pay the same, it is pursuant to an act, &c. &c. referred to the Master to take an account of principal and interest due on the mortgage, and to tax the plaintiff's costs, and upon defendant paying to plaintiff what the Master finds due, within six months, at a time and place. to be appointed by the Master, the plaintiff is ordered to reconvey the mortgaged premises free from incumbrances, and to deliver up deeds, &c., but in default of payment the defendant is to be foreclosed. [ *545] *Under a reference of this description, the Master cannot go into evidence as to payments on account of principal and interest, but must proceed upon the admission of the principal and interest due upon the mortgage as stated in the bill. Exceptions to a Master's report receiving such evidence were in the case cited allowed.(4) The jurisdiction under the statute, gives to (1) Hewitt v. M'Cartney, 13 Ves. 560. (3) Bastard v. Clarke, 7 Ves. 489. (2) Amis v. Lloyd, 3 V. & B. 15. (4) Huson v. Hewson, 4 Ves. 105. a short order the effect of a decree of foreclosure. The time fixed in pursuance of the order for paying the mortgage money may be enlarged in the usual manner.(1) CHAPTER XII. BILL TO REDEEM. After what length of time allowed to be filed, 545. On what terms a mortgagee may redeem, 546. What may redeem, 547. Effect of dismissing a bill to redeem, 547. When a second or subsequent mortgagee has possession of the title deeds, 548. Rights of the mortgagees where the mortgaged premises are in the hands of third persons, 549. As a general rule there can be no redemption of a mortgage after twenty years' possession,(2)[a] unless circumstances are proved by the mortgagor showing an acknowledgment of his title by the mortgagee,(3)[6] or (1) Wakerell v. Delight, 9 Ves. 36. Coop. 27. (2) Whiting v. White, Coop. 4. Beckford v. Wade, 17 Ves. 99. Anon. 3 Atk. 313. (3) Barron v. Martin, 19 Ves. 327. [a] Demarest v. Wynkoop, 3 Johns. Ch. Rep. 129; Slee v. Manhattan Co., 1 Paige, 48; Fenwick v. Macy, 1 Dana, 279; Hodle v. Healy, 6 Madd. 181; Rayner v. Oustler, 6 Madd. 274; Ross v. Norvell, 1 Wash. 14; Lamar v. Jones, 3 Har. & M⚫H. 328; Wells v. Morse, 11 Vermont, 9. But possession by the mortgagee, for a period short of twenty years, is not enough: the possession must be an actual, quiet and uninterrupted possession, for twenty years, or a period of time sufficient to toll the right of entry at law. Moore v. Cable, 1 Johns. Ch. Rep. 385. But in Connecticut, it has been held, that fifteen years' possession, where no statute disabilities or special circumstances, equivalent thereto, exist, will bar an equity of redemption. Skinner v. Smith, 1 Day, 124; Lockwood v. Lockwood, 1 Day, 295. And length of time is a bar to a bill to redeem, only where the parties, entitled to the equity of redemption, have been tenants in fee simple: for, otherwise, conveyance of the equity of redemption cannot be presumed. Cowne v. Douglass, M'Cle. & Y. 274. [b] And in the case of the mortgage of a negro slave in 1784, and the parties living in the same neighbourhood all the time, where the mortgagor never applied to redeem until 1805, and the mortgagee replied, that he was old and unwilling to have a law suit, and that he would deliver up the negro, if the mortgagor would pay the money loaned, with interest, and charge nothing for the hire of the negro, this was held a recognition of a then subsisting mortgage. Shepperd v. Murdock, 3 Murph. 218; see also, Quint v. Little, 4 Greenl. 495. No length of time is a bar to a redemption of a mortgage, where there is fraud in the transaction, or where, by the agreement of the parties, at the time, the mortgagee is to enter and keep possession until he is paid out of the profits. Marks v. Pell, 1 Johns. Ch. Rep. 594. The parties to a conditional sale, both removed from the state where the contract was made, soon after the time allowed for a re-purchase expired; twenty-two years afterwards, and after the death of both, the heirs of the vendor brought a bill to redeem; and to account for the delay, alleged, that the vendor did not know where the vendee resided after his removal; but, as it did not appear that he made an inquiry, with a view to redeem, or supposed he had any right, it was held, that these facts did not justify a decree for redemption. Picken's ex'rs v. Walker's heirs, 3 Dana, 167. unless the mortgagor has laboured under an impediment,[c] [ *546 ] and even in that case, *according to Lord Kenyon's opinion, there can be no redemption after ten years from the time the impediment has been removed.(1) If the mortgagee in possession by a solemn act shows it to be a mortgage, such as by receiving interest, by stating an account, or by treating it in any will or deed as a mortgage, a redemption may be decreed after twenty years.(2) It appears parol evidence of such acts may be received, if clear and unequivocal.(3) The delivery of an account within twenty years by a receiver and manager of the estate without any authority, (the employer being in a state which rendered him incapable of managing his affairs,) is not sufficient to found a title to redeem.(4) A bill for redemption after twenty years, upon the evidence of a conversation proved by one witness only, was dismissed.(5)[a] A mortgagor cannot redeem without paying what is really due,[6] and where a mortgagee buys in an incum (1) Beckford v. Wade, 17 Ves. 99. (2) Whiting v. White, Coop. 4. [c] An infant is allowed twenty years after he arrives of age, to file his bill for the redemption of a mortgage. Lamar v. Jones, 3 Harr. & M'H. 328. [a] But a mortgagor's assent to the sale and absolute conveyance, by the mortgagee, for the payment of the debt, and his receipt of the overplus, may be proved by parol, and his equity of redemption extinguished thereby. Craig v. Feland, 4 Monroe, 235. [b] A mortgagor, who goes into Chancery to redeem, will not be permitted to do so, but upon payment, not only of the mortgage debt, but of all other debts due from him to the mortgagee. But if a mortgagee seeks to foreclose, in Chancery, the mortgagor will be permitted to redeem, upon payment of the mortgage debt only; and if a subsequent mortgagee, or judgment creditor, files a bill to redeem, he will be permitted to do so, upon the payment of the mortgage debt alone. Lee v. Stone, 5 Gill & Johns. 1. If a mortgagor comes in to redeem, he must pay up, not only the mortgage money, but also subsequent advances made by the mortgagee. Ogle v. Ship, 1 A. K. Marsh. 287. See Hopkins v. Stephenson, 1 J. J. Marsh. 344. A. being indebted to B., by bond, was arrested in New York, and to secure the bond, made a mortgage of his land in Connecticut to B.; after which, C. paid the bond and took an assignment of the mortgage: Held, that A. could not redeem, without paying to C. the sum actually advanced by him, and seven per cent. interest. Mallory v. Aspinwall, 2 Day, 280. Under ordinary circumstances, a purchaser of a mortgagee stands in his place, and must submit to a redemption, on the same terms; for, though he may purchase for a large sum, and though he has the legal title, yet he has not equal equity with the mortgagor; for he buys with notice. His title, being, on its face, for the security of money, should put him on inquiry; and any thing which puts one on inquiry is sufficient notice. Henderson v. Stewart, 4 Hawks, 256. There are cases, however, where a different rule prevails; as where the purchaser advances the money, and takes a conveyance for the benefit of the mortgagor or his heirs, and not for his own benefit. But where the defendant takes the absolute conveyance to himself, and in his answer denies the complainant's right to redeem, he must be viewed as a mere assignee of a mortgagee, and must submit to a redemption, on the same terms, and is not entitled to the sum which he has actually advanced. Ibid. brance, he shall be allowed as against the mortgagor all that is due upon it, though he bought it for less; but it is otherwise if the heir or trustee of a mortgagor buys in an incumbrance as against subsequent incumbrancers and creditors, in which case he can only be allowed what he has paid for an incumbrance.(1) A mortgagor filing a bill to redeem must pay the costs of defendants,[c] claiming under the mortgagee upon the principle that at law the mortgage being forfeited, the mortgagee is at liberty to deal with it as his own property.(2) Where upon a bill of redemption and foreclosure, the mortgagee assigns his mortgage after a decree for the usual *accounts, the mortgagor is not [ *547 ] to pay the costs of the supplemental bill, which is necessary to bring the assignee of the mortgagee before the Court.(3) Subsequent incumbrancers may redeem the first mortgagee, though the mortgagor is foreclosed by a decree, and the account taken in the suit where such decree was obtained, will not bind subsequent incumbrancers.(4)[a] A judgment creditor must take out execution before he is entitled to redeem a mortgagee of a leasehold estate.(5)[b] If the executor has assets, the heir may compel him to (1) Darcy v. Hall, 1 Vern. 48. Williams v. Springfield, 1 Vern. 476. (2) Wetherell v. Collins, 3 Madd. 255. (4) Morrett v. Westerne, 2 Vern. 663. (3) Barry v. Wray, 3 Russ. 465. [c] Brockway v. Wells, 1 Paige, 617; Benedict v. Gilman, 4 Paige, 62. But a subse quent mortgagee, who seeks to redeem from the purchaser under a statute foreclosure of a prior mortgage, is not bound to pay the costs of such foreclosure, the same being, as to his rights, wholly inoperative. Vroom v. Ditmas, 4 Paige, 526. [a] The holder of a junior mortgage or incumbrance, or of the equity of redemption, is not bound by a decree of foreclosure to which he was no party, and will be allowed to redeem the estate, although the senior mortgagee had no notice of such claim. Cooper v. Martin, 1 Dana, 25. See Ormsby v. Thorpe, 2 Moll. 503, (12 Eng. Ch. Rep. 584.) On a bill of foreclosure, by a subsequent inortgagee, he will be entitled to redeem the prior mortgage, and then to sell the whole estate for the money due on both mortgages. Western Ins. Co. v. Eagle Fire Ins. Co., 1 Paige, 284. But an incumbrancer pendente lite, is not entitled to redeem, and therefore need not be made a party to a bill of foreclosure, unless under special circumstances; as where he became a judgment creditor after the commencement of the suit, but before the decree, and the purchaser at the Master's sale had previous notice of the judgment, and by a previous agreement with the mortgagor, obtained from him an order for the surplus moneys, which was accepted by the purchaser. Burnett v. Denniston, 5 Johns. Chan. Rep. 35. [b] A judgment creditor may file a bill to redeem. Hitt v. Holliday, 2 Litt. 332; Van Buren v. Olmstead, 5 Paige, 9. See Lyon v. Johnson, 3 Dana, 546; Tucker v. White, 2 Dev. & Bat. 289. Eng. Chan. Reps. iii. 485. redeem for his benefit.(1) The principle that where two distinct estates are mortgaged for two distinct debts, that a separate redemption cannot be decreed, [c] operates as long as the equities of redemption remain united in the same person.(2) An equity of redemption cannot be taken in execution.(3)[d] Upon a bill to redeem a mortgage, and non-payment at the time appointed, it is a motion of course to dismiss the bill,(4)[e] and this dismissal is equivalent to a foreclosure.(5) But the dismissal of a bill to redeem for want of prosecution has not the effect of a foreclosure.(6) It appears that praying relief where a mortgagee is a party, is the same as praying to redeem, and that if, on a reference to the Master, the plaintiff the mortgagor does not redeem, the Court will dismiss the bill.(7) The Court cannot enlarge the time for payment of mortgage money upon a bill to redeem as upon a bill of foreclosure.(8) [ *548 ] *where a second or subsequent mortgagEE HAS THE POSSESSION OF THE TITLE DEEDS. In Head v. Egerton, 3 P. W. 280, Lord Talbot lays it down that if the first mortgagee permits the mortgagor to keep the title-deeds, and the mortgagor, showing a fair title, mortgages the premises to a second mortgagee, to whom he delivers the deeds, the first mortgagee is accessory to drawing in the second. And in Goodtitle v. Morgan, 1 Term Rep. 755, and in Ryall v. Rowles, 1 Ves. 348 and 360, the same doctrine is laid down; but subsequent cases, particularly Evans v. Bicknell, 6 Ves. 183, and Barnett v. Weston, 12 Ves. 130, and the cases cited in the notes to the last edition of Mr. Vesey's Reports, (1) 2 Com. Dig. Art. Chan. 606. (5) Cholmley v. Duchess of Oxford, 2 Atk. 267. (2) Willie v. Lugg, 2 Eden, 78. (4) Stuart v. Worrall, 1 Bro. C. C. 581. (7) Hansard v. Hardy, 18 Ves. 460. (8) Novosielski v. Wakefield, 17 Ves. 417. [c] An equity of redemption is indivisible. Franklin v. Gorham, 2 Day, 142. [d] The contrary is, as has been already seen, (ante, 530,531, notes,) the prevailing rule in the United States; the mortgage being regarded as a mere security for the debt, and the estate continuing, until a foreclosure and sale, in the mortgagor. [e] The decree, upon a bill to redeem, should fix the time within which the redemption is to take place; and should direct that the complainant's bill be dismissed, with costs, if the money be not paid within the time prescribed. Waller v. Harris, 7 Paige, 167; Shannon v. Speers, 2 A. K. Marsh. 312; Stapp. v. Phelps, 7 Dana, 300. |