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 .
41. Anthony v. Anthony. 23 Ark. 479: Scripture v. Johnson, 3 Conn. 211; Brown v. Gaffney, 32 111. 251; Downing v. Palmateer, 1 T. B. Mon. (Ky.) 64. 70 ; Chase v. McDonald, 7 H. & J. (Md.) 161, 196; Lee v. Stone, 5 G. & J. (Md.) 1; Leeds v. Gifford, 41 N. J. Eq. 46; Walling v. Aiken, 1 McMul. Eq. (S. C.) 2, 10; Lake v. Shumate, 20 S. C. 23; Siter v. Mc-Clanachan, 2 Gratt. (Va.) 280, 299; Webb v. Crouch, 70 W. Va. 580, Ann. Cas. 1914A, 728, 74 S. E. 730. See Rodda v. Needham, 78 Wash. 636, 139 Pac. 628.
42. Challis v. Casborn, Finch, Prec. Ch. 407; Coleman v. Winch, 1 P. Wms. 755; Jones v. Smith, 2 Ves. Jr. 372, 376; Mahoney v. Bostwirk, 96 Cal. 53, 31 Am. St. Rep. 175, 30 Pac. 1020; Brooks v. Brooks, 169 Mass. 38, 47 N. E. 448; Weller v. Summers, 82 Minn. 307; Corporation for Relief, v. Wallace. 3 Rawle (Pa.) 109, 155. In Maine and Massachusetts the mortgagee is given this right if it was orally agreed that the mortgage should be security for such debts. Hay-hurst v. Morin, 104 Me. 169, 71 Atl. 707; Joslyn v. Wyman, 5 Ailen (Mass.) 62; Taft v. Stoddard. 142 Mass. 545, 8 N. E. 586.
Even in England it is held that an heir or devisee seeking to redeem must pay, in addition to the mortgage debt, a debt of the deceased which is payable out of the land as being assets in the hands of such heir or devisee, this being stated to be for the purpose of avoiding circuity of action. Coleman v. Winch, 1 P. Wms. 777: Rolfe v. Chester, 20 Beav. 610; Elvy v. Norwood, 21 Law J. Ch. 716. But this rule is not there-applied to the detriment of other creditors of equal degree, or incumbrancers whose rights have accrued between the time of the mortgage and the creation of the debt. Powis v. Corbet, 3 Atk. 556; 1 Story, Eq. Jur. Sec.Sec. 418, 419: Hamerton v. Rogers, 1 Ves. Jr. 513, Sumner's note.
43. Colin v. Hoffman, 56 Ark. 119, 19 S. W. 233: Gelston v. Thompson, 29 Md. 595: Hays v. Cretin, 102 Md. 695, 4 L. R. A. (N. S.) 1039, 62 Atl. 1028, closure, as distinct from redemption, has never been recognized.44
- (c) Loss of right- By foreclosure. One having a right to redeem is ordinarily entitled to exercise the right until it is cut off by foreclosure and not thereafter. There are in some jurisdictions statutes allowing redemption at any time before rendition of the decree in the foreclosure proceedings, and some statutes allow redemption at any time before actual sale. In the absence of any statute, or any established practice in that regard,45 it would seem that the law would be as declared by the former class of statutes, that is, that the right of redemption would exist until the rendition of the decree. But a foreclosure proceeding does not affect the right of redemption of a person who was not made a party thereto.46 And even one who was a party thereto may redeem if the proceeding was for any reason invalid as regards him, as for instance in case of fraud, mistake or lack of notice.47
Even though there has been a valid foreclosure, by which the title is vested in the mortgage creditor, the right of redemption may be revived by his action in thereafter accepting payments on account of the mortgage debt, with the intention of opening the foreclosure.48 And the recovery of a personal judgment for the entire mortgage debt has been held to involve, presumptively at least, a waiver or disclaimer of a prior strict foreclosure.49
44. Lee v. Stone, 5 Gill & J. (Md.) 1; Anthony v. Anthony, 23 Ark. 459; Tunno v. Robert, 16 Fla. 738.
45. see Wimpfheimer v. Prudential Ins. Co., 56 N. J. Eq. 585, 39 Atl. 916; Willis v. Smith, 66 Tex. 31, 17 S. W. 247.
46. Ulrod v. Smith, 130 Ala. 212, 30 So. 420; Prink v. Murphy, 21 Cal 108, 81 Am. Dec. 149; Bridgeport Sav. Bank v. Eld-ridge, 28 Conn. 55G, 73 Am. Dec. 688; Dnndee Naval Stores Co. v. McDowell, 65 Fla. 15, Ann. Cas. 1915A. '87, 61 So. 108; Strang v. Allei'. 4 111. 428; McDonald v Seco-v. Nat. Bank, 106 Iowa, 517,
76 N. W. 1011; Shackleford v. Stockton, 6 B. Mon. (Ky.) 390; Worthington v. Wilmot, 59 Miss. 608; Minor v. Beekman, 50 N. Y. 337; Harding v. Gillett, 25 Okla. 199, 107 Pac. 665; Childs v. Childs, 10 Ohio St. 339, 75 Am. Dec. 512; DeLashmutt v. Sellwood, 10 Oreg. 319; Froelich v. Swafford, 33 S. D. 142, 144 N. W. 925; Stark v. Brown, 12 Wis. 572, 78 Am. Dec. 762.
47. Weiss v. Ailing, 34 Conn. 60; Bostwick v. Stiles, 35 Conn. 195; Webber v. Curtiss, 104 111. 309; Penny v. Cook, 19 Iowa, 538; Wilson v. Eggleston, 27 Mich. 257; McKeighan v. Hopkins, 14 Neb.
In some states the statute expressly provides, in the case of foreclosure by entry upon the land, that a right of redemption shall continue for a certain number of years after such entry, while in many states there is, by statute, a right, to endure for a time named, to redeem from a sale under the mortgage. A mortgage creditor who forecloses by entry under the statute may, by agreement with the debtor, extend the statutory period for redemption.50 And a foreclosure purchaser may extend the statutory period for redemption from the sale.51 Such an agreement for extension does not, however, involve a waiver or relinquishment of the foreclosure, and upon the expiration of the period named without redemption, the title of the mortgagee or purchaser is absolute.52 In the absence of any statutory right of redemption after foreclosure, if a purchaser at foreclosure sale agrees to allow the debtor to reacquire the land by the payment of a sum named, such agreement is in effect, it would seem, a new mortgage in favor of such purchaser, which would necessitate a new foreclosure,53 or it is an agreement giving the former debtor an option of purchase.54
361, 15 N. W. 711; Bennett v. Austin, 81 N. Y. 308; Stinson v. Pepper, 47 Fed. 676.
48. Lounsberry v. Norton, 59 Conn. 170, 22 Atl. 153; Scott v. Childs, 64 N. H. 566, 15 Atl. 206: Osborne v. Tunis, 25 N. J. L. 633, Findlay v. Longe, 81 Vt. 523 71 Atl. 829. That the mere making of payments on the mortgage debt without other evidence of an intention to open the foreclosure, is insufficient, see Lawrence v. Fletcher, 8 Mete. (Mass.) 153.