401 Lynch v. Pfeiffer, 110 N. Y. 33, 17 N. E. 402; Loomer v. Wheelwright, 3 Sandf. Ch. (N. Y.) 135; Aetna Life Ins. Co. v. Corn, 89 111. 170; Jarvis v. Frink, 14 111. 396; Loverin v. Trust Co., 113 Pa. St. 6, 4 Atl. 191; Aiken v. Railway Co., 37 Wis. 469; Walker v. Goodsill, 54 Mo. App. 631.
402 Smith v. Roberts, 91 N. Y. 470; James v. Morey, 2 Cow. (N. Y.) 246; Chase v. Van Meter, 140 Ind. 321, 39 N. E. 455.
403 Mcgiven v. Wheelock, 7 Barb. (N. Y.) 22; First Nat Bank of Lebanon v. Essex, 84 Ind. 144.
404 1 Jones, Mortg. (5th Ed.) § 854; Hancock v. Fleming, 103 Ind. 533, 8 N. E. 254.
405 And see Abbott v. Kasson, 72 Pa. St. 183.
406 Smith v. Swan, 69 Iowa, 412, 29 N. W. 402; Pike v. Gleason, 60 Iowa, 150, 14 N. W. 210; Hanlon v. Doherty, 109 Ind. 37, 9 N. E. 782. But see Temple v. Whittier, 117 111. 282, 7 N. E. 642.
Quires the equity of redemption.407 Whether or not a merger has taken place cannot be determined by an inspection of the record, because, as we have seen, a merger may be prevented by the intention of the parties.408
136. A mortgage may be discharged by being redeemed by any one who has an interest in the equity of redemption paying the whole amount due on the mortgage, before the right to redeem is barred by foreclosure or lapse of time.
At common law, after breach of condition, the estate of the mortgagor was absolutely determined. But courts of equity subsequently granted relief from the harshness of this rule, by giving the mortgagor, or those succeeding to his interests, a right of redemption.409 This constitutes the chief difference between mortgages at common law and in equity. It has already been said that a mortgage may be discharged by performance after breach of the condition, if the mortgagee accepts the performance. If the mortgagee refuses to accept, the mortgagor must resort to a court of equity to enforce his right of redemption, and secure a discharge of the mortgage. A bill in equity is the only method of enforcing a right of redemption.410 To such a bill all persons having an interest in the mortgaged premises-should be made parties.411 The decree in such case fixes the time within which redemption must be made.412
407 International Bank of Chicago v. Wilshire, 108 111. 143.
408 Morgan v. Hammett, 34 Wis. 512; Worcester Nat. Bank v. Cheney, 87 111. 602; Purdy v. Huntington, 42 N. Y. 334.
409 2 Jones, Mortg. (5th Ed.) § 1038; Digby, Hist Real Prop. (4th Ed.) 2S3.
410 2 Jones, Mortg. (5th Ed.) § 1093; Chase v. Peck, 21 N. Y. 581; Hill v. Payson, 3 Mass. 559; Parsons v. Welles, 17 Mass. 419; Woods v. Woods, 66 Me. 206.
411 Posten v. Miller, 60 Wis. 494, 19 N. W. 540; Sutherland v. Rose, 47 Barb. (N. Y.) 144; Chase v. Bank, 1 Tex. Civ. App. 595, 20 S. W. 1027; Stillwell v. Hanim, 97 Mo. 579, 11 S. W. 252; Marco v. Hicklin, 6 C. C. A. 10, 56 Fed. 549.
412 Chicago & C. Rolling-mill Co. v. Scully, 141 111. 408, 30 N. E. 1062;
Who may Redeem.
Any one having an interest in the mortgaged premises may redeem, if he would be a loser by foreclosure.413 But the interest must come through the mortgagor, and therefore one holding a tax title has no right to redeem.414 An interest in part of the mortgaged premises is sufficient to give the right.415 Nor need the interest be one in fee. A tenant for life or years may exercise the right.416 A mortgagor who has conveyed the premises with covenants of warranty cannot redeem.417 If a second mortgage has been foreclosed, the mortgagor has no right to redeem from the first mortgage.418 But if a first mortgage is foreclosed a junior mortgagee may redeem, if not made a party to the foreclosure of the first mortgage.419 An assignee of the equity of redemption may redeem, whether he is an assignee by act of parties,420 or by operation of law.421 The heirs of the mortgagor or of the owner of the equity of redemption may redeem, unless the equity has been devised to another.422 So the guardian of an infant heir may exercise the right.423 A joint owner may redeem by paying the whole debt,424
Bremer v. Dock Co., 127 111. 464, 18 N. E. 321; Dennett v. Codman, 158 Mass. 871, 33 N. E. 574; Mckenna v. Kirkwood, 50 Mich. 544, 15 N. W. 898.
413 Campbell v. Ellwanger, 81 Hun, 259, 30 N. Y. Supp. 792; Grant v. Duane, 9 Johns. (N. Y.) 591; Powers v. Lumber Co., 43 Mleh. 4G8, 5 N. W. 656; Piatt v. Squire, 12 Mete. (Mass.) 494; Farnuin v. Metcalf, 8 Cush. (Mass.) 46. As a mortgagor under a deed absolute in form. Mcarthur v. Robinson (Mich.) 62 N. W. 713.
414 Sinclair v. Learned, 51 Mich. 335, 16 N. W. 672/
415 in re Willard, 5 Wend. (N. Y.) 94; Boqut v. Coburn, 27 Barb. (N. Y.) 230.
416 Averill v. Taylor, 8 N. Y. 44; Lamson v. Drake, 105 Mass. 564.
417 Phillips v. Leavitt, 54 Me. 405; True v. Haley, 24 Me. 297.
418 Calweii 7. Warner, 36 Conn. 224.
419 Jackson v. Weaver, 138 Ind. 539, 38 N. E. 166; Thompson v. Chandler, 7 Me. 377; Loomis v. Knox, 60 Conn. 343, 22 Ati. 77L
420 Scott v. Henry, 13 Ark. 112; Gordon v. Smith, 10 C. C. A. 516, 62 Fed. 503. And on seeking redemption he need not prove a valuable consideration. Barnard v. Cushman, 35 111. 451.
421 White v. Bond, 16 Mass. 400.
422 Zaegel v. Kuster, 51 Wis. 3L 7 N. W. 781; Chew y. Hyman, 10 Biss. 240, 7 Fed. 7; Lewis v. Nangle, 2 Ves. Sr. 43L
423 Pardee v. Van Anken, 3 Barb. (N. Y.) 534.
424 Taylor v. Porter, 7 Mass. 355; Calkins v. Munsel 2 Root (Conn.) 333; Lyon v. Bobbins, 45 Conn. 513.
And can hold the land to secure contribution from his co-owners.425 A junior mortgagee may, of course, redeem;426 but he must have given a valuable consideration for his mortgage, so that it is a valid security.427 And he may redeem, although a prior mortgagee holds the equity of redemption.428 A widow of the mortgagor, who has released her dower, may redeem from the mortgage;429 but, to do so, she is required to pay the whole amount, and not merely one-third.430 So also a tenant by the curtesy has a right of redemption. A judgment creditor of the mortgagor may redeem without the land being first sold on execution.431 On the other hand, a general creditor of a mortgagor, who has no specific lien on the lands mortgaged, cannot exercise a right of redemption.432 But an assignee in bankruptcy may.433