This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
15. Huston v. Seeley, 27 Iowa, 183 (nonjoinder in mortgage); Opdyke v. Bartles, 11 N. J. Eq. 133 (nonjoinder in mortgage). See Barker v. Burton, 67 Barb. (N. Y.) 458.
16. Daniels v. Henderson, 5 Fla. 452; Camp v. Small, 44 111. 37; Bigoness v. Hibbard, 267 111. 301, 108 N. E. 294; Hays v. Cretin,
102 Md. 695, 4 L. R. A. (N. S.) 1039, 62 Atl. 1028; Tuttle v. Davis, 114 Me. 109, 95 Atl. 513: Davis v. Wetherell, 13 Allen (Mass.) 60, 90 Am. Dec. 177; Fitcher v. Griffiths, 216 Mass. 174,
103 N. E. 471; Smith v. Hall, 67 N. H. 200, 30 Atl. 409; Mackenna
The owner of an easement in the mortgaged land has the right to redeem,17 but not one having a license merely.17a It is generally agreed that a judgment creditor has, by reason of his lien on the mortgaged property, a right to redeem from a prior mortgage,18 and the same right has been regarded as existing in favor of a junior mortgagee.19 It appears to be questionable, however, whether a junior mortgagee, or other junior lienor, has a right to redeem from the prior mortgage, if the prior mortgagee himself does not seek or desire to secure payment of the mortgage debt, preferring to retain it as an investment.19a The junior lienor can, in such case, foreclose his own lien, taking the property, or having it sold, subject to the prior mortgage.
If the debt is evidenced by two or more notes, and the notes are in the hands of different persons, the owner of one note may redeem by payment to the owner of another note, first maturing, in order to protect his v. Fidelity Trust Co., 184 N. Y. 411, 3 L. R. A. N. S. 1068, 112 Am. St. Rep. 620, 6 Ann Cas. 471, 77 N. E. 721; Gatewood v. Gate-wood, 75 Va, 407.
17. Bacon v. Fiowdoin, 22 pick. (Mass.) 405; Dundee Naval Stores Co. v. McDowell, 65 Fla. 15, Ann. Cas. 1915A, 387, 61 So. 108 (holder of turpentine lease).
17a. Harbottle v. Central Coal & Coke Co., 134 Ark. 254. 203 S. W. 1044.
18. Raisin Fertilizer Co. v. Bell, 107 Ala. 261, 18 So. 168; Cowling v. Britt, 114 Ark. 175, 169 S. W. 783; Loomis v. Knox, 60 Conn. 343, 22 Atl. 771; Spur-gin v. Adamson, 62 Iowa, 661. IS N. W. 293; Lambert v. Miller, 38 N. .1. Eq, 117; Groff v. Morehouse. 51 N. Y. 503; Stonehewer v. Thompson, 2 Atk. 440.
19. Rothschild v. Bay City Lumber Co.. 139 Ala. 571, 36 So. 785; Frink v. Murphy, 21 Cal. 108, 81 Am. Dec. 149; Steinke: meyer v. Gillespie, 82 111. 253; Wheeler v. Menold, Si Iowa, 647, 47 N. W. 871; Long v. Richards, 170 Mass. 120, 64 Am. St. Rep. 2S1, 48 N. E. 1083; Sager v. Topper, 35 Mich. 134; Roff v. Miller, 189 Mich. 558, 155 N. W. 517; Cram v. Cotrall, 48 Neb. 646, 58 Am. St. Rep. 714, 67 N. W. 452; American Loan & Trust Co. v. AI la nt a Elee R. Co., 99 Fed. 313.
19a. Bigelow v. Cassedy, 26 N. .1 Eq. 557; At wood v. Carmer, 75 N. J. Eq. 319, 7:; Atl. 114; Frost v. Yonkers Sav. Bank, 70 N. Y. 553.
One who has no interest in the land, as lienor or otherwise, has no right of redemption.21 and eon sequently the right is denied to a mortgagor who has disposed of or been deprived of his estate in the land,22 to a judgment creditor who has lost his lien,23 and to a junior mortgagee who has lost his lien by payment, foreclosure, or otherwise.24 Moreover, as before indicated, the interest of the person seeking to redeem must be subject to the mortgage, and not superior thereto.25 If his interest is superior to the mortgage, he could not be prejudiced by the enforceniehl of the mortgage against the land, and consequently cannot assert a right to remove the incumbrance. Consequently a senior mortgagor cannot assert a right to redeem from a junior mortgage, since his lien cannot be prejudiced by the enforcement of the junior lien.26 As between several persons entitled to redeem, the one whose lien or interest is superior, is first entitled to do so. For instance, a second mortgagee is entitled, before a third mortgagee, to redeem from the first mortgage.27 Upon redemption by the second mortgagee the third mortgagee may then redeem from him.
20. Grattan v. Wiggins. 23 Cal. 16; Preston v. Hodgen, 50 111. 56; Murdock v. Ford, 17 Ind. 52.
21. Lomax v. Bird, 1 Vern. 182; Rapier v. Gulf City Paper Co., G4 Aia. 330; Byington v. Buckwalter, 7 Iowa, 512, 74 Am. Dec. 279; Skinner v. Young, 80 Iowa, 234, 45 N. W. 8S9; Mc-Niece v. Eliason, 78 Md. 168, 27 Atl. 940; Harwood v. Underwood. 28 Mich. 427; Sinclair v. Learned, 51 Mich. 335, 16 N. W. 672; Grant v. Duane, 9 Johns. (N. Y.) 591.
22. Ingersoll v. Sawyer, 2 Pick. (Mass.) 276: True v. Haley, 24 Me. 297; Phillips v. Leavitt, 54 .Me. 405. So a mortgagor loses his equity in redeem a first mortgage, if a second mortgage on the property is foreclosed, this depriving him of all interest in the property. Colwell v. Warner, 36 Conn. 224.
23. Thomas v. Stewart, 117 Ind. 50. 1 L. R. A. 715, 18 N. E. 505; Long v. Mellet, 94 Iowa, 548, 63 N. W. 190.
24. Bigelow v. Stringfcllow. 25 Fla. 366; McHenry v. Cooper, 27 Iowa, 137.
25. Huston v. Seeley, 27 Iowa, 183; Ayres v. Adair Co., 61 Iowa, 728, 17 X. W. 161; Smith v. Austin, 9 Mich. 465; Opdyke v. Parties, 11 N. J. Eq. 133;
26. Goodman v. White, 26 Conn. 317; Dawson v Overmyer. 141 Ind. 438, 40 N. E. 1065; Hutchinson v. Wells, 67 Iowa, 430, 25 V W 690.
- (b) Amount to be paid. In order to redeem from a mortgage, it is necessary to pay the entire mortgage debt, if clue, or so much thereof as may be due at the time of payment,28 together with interest to the time of redemption.29
The mortgagor, or other person redeeming, must also repay to the mortgage creditor any sums expended by the latter in extinguishing prior incumbrances upon the property, in order to protect the mortgage security,30 and this includes payments made by the mortgage creditor on account of taxes and assessments on the property.31 He must also repay
27. See Moore v. Beasom, 44 N. H. 215; Wimpfheimer v. Prudential Ins. Co., 56 N. J. Eq. 585, 39 Atl. 916; Loomis v. Knox, 60 Conn. 343, 22 Atl. 771; Wiley v Ewing, 47 Ala. 418.