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 .
49. Clarke v. Robinson, 15 R. I. 231, 10 Atl. 642; Hazard v. Robinson, 15 R. I. 226, 2 Atl. 433.
50. Quint v. Little, 4 Me. 495; Danforth v. Roberts, 20 Me. 307; Chase v. McLellan, 49 Me. 375;
Brown v. Lawton, 87 Me. 83, 32 Atl. 733; Daggett v. Town of Men-don, 64 Vt. 323, 24 Atl. 242. See Clark v. Crosby, 101 Mass. 184; Daniels v. Mowry, 1 R. I. 151.
51. Pensoneau v. Pulliam, 47 111. 58; Taggart v. Blair, 215 111. 339, 74 N. E. 372; Turpie v. Lowe, 158 Ind. 314. 92 Am. St. Rep. 310, 62 N. E. 484; Moote v. Scriven, 33 Mich. 500; Pearson v. Douglass, 1 Baxt. (Tenn.) 151; Mann v. Provident Life & Trust Co., 42 Wash. 581, 85 Pac. 56; Schroeder v. Young, 161 U. S. 334, 344, 40 L. Ed. 721.
52. Turpie v. Lowe, 158 Ind. 314, 92 Am. St. Rep. 310, 62 N. E. 484; Southard v. Pope, 9 B, Mon. (Ky.) 261.
- By lapse of time. A mortgagor may be barred of his right to redeem by the lapse of time, equity usually adopting for this purpose the legal period of limitation applicable to suits for the recovery of land, after which time the right of redemption is presumed to be extinguished,55 though sometimes the period fixed by statute for the bringing of a proceeding to foreclose is adopted, as being more closely analogous.56
In order that the right of the mortgagor be thus barred by the expiration of the limitation period it is necessary that the mortgage creditor shall have been in possession of the land during that period, and his possession must, in most of the states, have been adverse to the mortgagor, that is, without any admission of the latter's interest in the land.57 Oc53. See ante, Sec. 605(d).
54. Woods v. McGraw, 127 Fed. 914, 63 C. C. A. 556.
55. Hughes v. Edwards, 9 Wheat. (U. S.) 489, 6 L. Ed. 142; Slicer v. Bank of Pittsburg, 16 How. (U. S.) 571, 14 L. Ed. 1063; Dexter v. Arnold, 1 Sunin. 109 Fed. Cas. No. 3,857; Jarvis v. Woodruff, 22 Conn. 548; Morgan v. Morgan, 10 Ga. 297; Tibbs v. Reed, 105 Ky. 331, 49 S. W. 6; Roberts v. Littlefield, 48 Me. 61; McNair v. Lot, 34 Me. 285, 84 Am. Dec. 78; Hoffman v. Harrington, 33 Mich. 92; McNair v. Lot, 34 Mo. 285, 84 Am. Dec. 78; Little v. Teague, 60 Miss. 115; Clark v. Clough, 65 N. H. 43, 23 Atl. 526; Demarest v. Wynkoop, 3 Johns. Ch. (N. Y.) 135, 8 Am. Dec. 467; Robinson v. Fife, 3 Ohio St. 551.
56. See Bradley v. Norris, 63 Minn. 156, 65 N. W. 357; Gower v. Winchester, 33 Iowa, 303; Ma-haffy v. Faris, 144 Iowa, 220, 24 L. R. A. (N. S.) 840, 122 N. W. 934.
57. Dexter v. Arnold, 3 Sumn. 152; Jarvis v. Woodruff, 22 Conn. 248; Morgan v. Morgan, 10 Ga. 297; Locke v. Caldwell, 91 111. 417; Salinger v. McAllister, 165 lowa, 508, 146 N. W. 8; Munro oasionally the courts have regarded adverse possession by the mortgage creditor for the statutory period not as an absolute bar to the right of redemption but as merely raising a presumptiota of the relinquisnmen'1 of the right.58 But ordinarily the mortgagor's right of redemption, that is, his light to discharge the mortgage lien, and thus to reacquire the possession of the laud and the ownership thereof free from any claim by the mortgage creditor, is regarded as absolutely barred by the lapse of the statutory period of linutation. Until, however, the arrival of the time named for the performance of the obligation secured, there is no right in the mortgagor to assert a righl of redemption, and consequently, until then, the statutory period does not commence to run.59 If the mortgagee holds possession under an agreement or understanding that he is to apply the rents and profits on the debt, his possession cannot become adverse until the debt is satisfied.60 And it does not do so even then, it would seem, unless he disclaims holding as mortgagee and asserts an absolute title.61
In some states there is a statute specifically limit v. Barton, 98 Me. 250, 56 Atl. 844; Ayres v. Waite, 10 Cush. (Mass.) 72; Rogers v. Benton, 39 Minn. 39, 12 Am. St. Rep. 613. 38 N. W. 765; Anding v. Davis, 38 Miss. 574, 77 Am. Dec. 658; Hall v. Hooper, 47 Neb. 111. 66 N. W. 33; Minnnck v. Reichen-bach, 97 Neb. 629, 150 N. W. 1001; Clark v. Clough, 65 N. H. 43 23 Atl. 526; Becker v. McCrea, 193 N. Y. 423, 86 N. E. 463; Simmons v. Ballard, 102 N. C. 105, 9 S. E. 495; Blessett v. Turcotte, 23 N. D. 417, 136 N. W. 945; West v. Middlesex Banking Co., 33 S. D. 405, 146 N. W. 598. Contra, Crawford v. Taylor, 42 Iowa, 260.
58. Hughes v. Edwards, 9 Wheat. (U. S.) 489, 6 L. Ed. 142; Ayres v. Waite, 10 Cush. (Mass.) 72.
59. McGuire v. Shelby, 20 Ala. 456; Munro v. Barton, 98 Me. 250; Froelich v. Swafford, 33 S. D. 142, 144 N. W. 925; Hammonds v. Hopkins, 3 Yerg. (Tenn.) 527; Waldo v. Rice, 14 Wis. 286.
60. Anding v. Davis, 38 Miss. 574, 77 Am. Dec. 658; Mcl'lvrson v. Hayward, 81 Me. 329. 17 Atl. 164.
61. Green v. Turner, 38 Iowa, 112.
3 R. P.-25 ing the time within which a suit for redemption may be brought.62
It has been asserted by several courts that the right to foreclose and the right to redeem are reciprocal rights, and that if the one right, that to foreclose, is barred, the other right, that to redeem, is also barred.63 This statement, it has been said, can properly mean no more than that so long as an instrument is to be regarded as a mortgage for the purposes of one party it must be so regarded for the purposes of the other.64 If it be given a more extended effect, as has been well remarked, a person might one day be a mortgagee, having, in most jurisdictions, a lien merely on the premises, and the next day be their absolute owner,65 and this, it might be added, without any action on his part to enforce his security, but merely by reason of his failure to enforce it. Another objection to such a doctrine which might be suggested, is that it would give to one claimant the benefit of disabilities to which his opponent is subject. There is a sense however in which the right of redemption does exist only so long as the right of foreclosure exists, and that is in the case of a junior mortgagee. His right of redemption from the senior mortgage, at least in states where he has a lien only, grows out of his right to foreclose his lien, and so soon as he loses this latter right, he loses the former.66 In some states,67 the statement referred to might perhaps meson that the period within which a right to redeem may be exercised must be the same as that within which a right of foreclosure must he exercised, that is, that the analogy of foreclosure proceedings must be applied in this regard.