The right of redemption is barred by foreclosure, and by lapse of time.447 Foreclosure, however, does not have this effect if the mortgagee subsequently recognizes the mortgage as still existing.448 Nor does foreclosure bar a right to redeem against one not made a party to the foreclosure suit.449 In several states, by statute, redemption may be made for a certain period after a foreclosure sale, the same as after a sale on execution.450
By analogy to the statute of limitations, the courts of most states hold that the right of redemption is barred when the mortgagee is in possession after the lapse of a time sufficient to give title to realty by prescription.451 Some states have express statutory enactments as to when the right of redemption is barred.452 The
444 Sargeant v. Rowsey, 89 Mo. 617, 1 S. W. 823.
445 Gill v. Lyon, 1 Johns. Ch. (N. Y.) 447; Clowes v. Dickenson, 5 Johns. Oh. (N. Y.) 235, affirmed 9 Cow. (N. Y.) 403; Bates v. Ruddick, 2 Iowa, 423 Deavitt v. Judevine, 60 Vt. 695, 17 Atl. 410; Solicitors' Loan & Trust Co. v. Washington & I. Ry. Co., 11 Wash. 684, 40 Pac. 344. But that the parcels are proportionately liable, see Huff v. Farwell, 67 Iowa, 298, 25 N. W. 252; Dickey v. Thompson, 8 B. Mon. (Ky.) 312. And of. Turner v. Flenniken, 164 Pa. St. 469, 30 Atl. 486; Dates v. Winstanley, 53 111. App. 623.
446 Bates v. Ruddick, 2 Iowa, 423.
447 Weiner v. Heintz, 17 111. 259; Stoddard v. Forbes, 13 Iowa, 296.
448 Lounsbury v. Norton, 59 Conn. 170, 22 Atl. 153.
449 Farwell v. Antis, 2 Wis. 533; Murphy v. Farwell, 9 Wis. 102; Hodgen v. Guttery, 58 111. 431; Strang v. Allen, 44 111. 428; American Buttonhole, etc., Co. v. Burlington Mut L. Ass'n, 61 Iowa, 464, 16 N. W. 527.
450 1 stim. Am. St. Law, § 1944 A, B; 2 Jones, Mortg. (5th Ed.) § 1051; Gates v. Ege, 57 Minn. 465, 59 N. W. 495.
451 Harter v. Twohig, 158 U. S. 448, 15 Sup. Ct. 883; Robinson v. Fife, 8 Ohio St. 551; Jarvis v. Woodruff, 22 Conn. 548; Fox v. Blossom, 17 Blatchf. 352, Fed. Cas. No. 5,008. As to prescription, see post, p. 456.
452 1 stim. Am. St. Law, § 1944 C.
Courts of some states hold that the right to redeem is barred at the same time as the right to foreclose.453 In order that possession by the mortgagee may bar the right of redemption, it is necessary that the possession be adverse during the whole period of limitation.454 The right to redeem is lost by limitation only when the mortgagee is in possession.455 The bar of the right of redemption by lapse of time is removed by anything which shows the mortgage as still continuing, such as by the rendering of an account,456 the assignment of the mortgage,457 recitals by the mortgagee in a deed or will,458 or by proceedings to foreclose.459
137. The formal discharge of a mortgage may be by:
(a) A reconveyance.
(b) An entry of satisfaction on the record.
It has been seen that, in the states where the lien theory of mortgages prevails, the mortgage is discharged merely by performance, but the mortgage still remains a cloud upon the mortgagor's title, so that some formal discharge is necessary. The discharge of a mortgage may take the form of a reconveyance,460 as by a quitclaim deed from the mortgagee to the mortgagor.461 It is gener453 Green v. Cross, 45 N. H. 574; King v. Meighen, 20 Minn. 264 (Gil. 237); Koch v. Briggs, 14 Cal. 256.
454 Simmons v. Ballard, 102 N. C. 105, 9 S. E. 495; Mcpherson v. Hayward, 81 Me. 329, 17 Atl. 164; Frisbee v. Frisbee, 86 Me. 444, 29 Atl. 1115.
455 Maurhoffer v. Mittnacht, 12 Misc. Rep. 585, 34 N. Y. Supp. 439; Bird v. Keller, 77 Me. 270. And see Frink v. Le Boy, 49 Cal. 314; Anding v. Davis, 38 Miss. 574.
456 Edsell v. Buchanan, 2 Ves. Jr. 83.
457 Borst v. Boyd, 3 Sandf. Ch. (N. Y.) 501.
458 Hansard v. Hardy, 18 Ves. 455.
459 Calkins v. Calkins, 3 Barb. (N. Y.) 305; Robinson v. Fife, 3 Ohio St. 551,
460 1 Jones, Mortg. (5th Ed.) § 972; Mutual Building & Loan Ass'n v. Wyeth (Ala.) 17 South. 45.
461 Donlin v. Bradley, 119 I1l 412, 10 N. E. 11; Woodbury v. Aikin, 13 111. 639; Barnstable Sav. Bank v. Barrett, 122 Mass. 172. But see Weldon v. Tollman, 15 C. C. A. 138, 67 Fed. 986. As to what is a quitclaim deed, see post, p. 412.
Ally provided by statute that a mortgage may be discharged by putting on record a satisfaction; that is, a certificate by the mortgagee that the mortgage has been satisfied. In many states an entry of satisfaction on the margin of the record of the mortgage is sufficient.462 Discharge of a mortgage may be compelled by a bill in equity,463 but in many states a penalty is provided by statute, which the mortgagor may collect of the owner of the mortgage for failure to enter satisfaction of record.464