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 .
62. Drum v. Bryan, - (Ala.) -, 40 So. 131; Warder v. Enslen, 73 Cal. 291, 14 Pac. 874; Garrett v. Ellis, 98 Miss. 1, 52 So. 451; Cbapin v. Wright, 41 N. J. Eq. 438, 5 Atl. 574; Pecker v. Mc-Crea, 193 N. Y. 423, 86 N. E. 463; Houck v. Adams, 98 X. C. 519, 4 S. E. 502.
63. See Allen v. Allen, 95 Gal. 184, 16 L. R. A. 646, 30 Pac. 213; Morrow v. Jones, 41 Neb. 867, 60 N. W. 369; Carpenter v. Plagge,
192 111. 82, 61 N. E. 530; Mahaffy v. Faris, 144 Iowa, 220, 24 L. R. A. (N. S.) 840, 122 N. W. 934.
64. Bradley v. Norris, 63 Minn. 156, 65 N. W. 357; Walker v. Warner, 179 111. 16, 70 Am. St. Rep. 85, 53 N. E. 594.
65. Bradley v. Norris, 63 Minn. 156, 65 N. W. 357.
66. Gower v. Winchester, 33 Iowa, 303; Krutz v. Gardner, 25 Wash. 396, 65 Pac. 771.
67. Ante, this section, note 56.
Apart from the question of limitations, the person seeking redemption may be guilty of such laches as to be incapacitated to assert the right of redemption.68 Occasionally it has been asserted that to bar the right of redemption the laches must involve a delay to assert the right for a period equal to the statutory limitation,69 but this view does not usually prevail.
- By estoppel. The right to redeem may be extinguished, on the principle of estoppel, in case the mortgagor or his transferee induces some third person to purchase the premises, or to make expenditures thereon, by expressions or conduct inducing the belief on the part of such person that no right of redemption will be asserted.70
68. Askew v. Sanders, 84 Ala. 356, 4 So. 167; Walker v. Warner, 179 111. 16, 70 Am. St. Rep. 85, 53 N. E. 594; Bigoness v. Hib-bard, 267 111. 301, 108 N. E. 294; Adams v. Holden, 111 Iowa, 54, 82 N. W. 4G8; United States Bank v. Carroll, 4 B. Mon. (Ky.) 40; Broaddus' Heirs v. Potts, 140 Ky. 583, 131 S. W. 510; Tetrault v. Fournier, 187 Mass. 58, 72 N. E. 351; Ferguson v. Soden, 111 Mo. 208, 33 Am. St. Rep. 512, 19 S. W. 727; Elling v. Fine, 53 Mont. 481, 164 Pac. 891; Piatt v. Smith, 12 Ohio St. 561; Simmons v. Burlington, C. R. & N. R. Co., 159 U. S. 278, 40 L. Ed. 150.
69. Moore v. Dick, 187 Mass. 207, 72 N. E. 967; Chapin v. Wright, 41 N. J. Eq. 438, 5 Atl. 574 (semble); Houston v. Nat.
Mut. Building & Loan Ass'n, 80 Miss. 31, 92 Am. St. Rep. 565, 31 So. 540; Ross v. Leavitt, 70 N. H. 602, 50 Atl. 110. In Mellish v. Robertson, 25 Vt. 503, it was decided that such was the rule in the case of a mortgage which is such in form, though not in the case of an absolute deed intended as security.
70. Schlawig v. Fleckenstein, 80 Iowa, 668, 45 N. W. 770; Southard v. Sutton, 68 Me. 575; Fay v. Valentine, 12 Pick. (Mass.) 40, 22 Am. Dec. 397; Hardy v. City of Keene, 67 N. H. 166. 32 Atl. 759; Lusenhop v. Einsfeld, 93 N. Y. App. Div. 68, 87 N. Y. Supp. 268; Woods v. McGarock, 10 Yerg. (Tenn.) 133; Wright v. Whitehead, 14 Vt. 268.
- (d) Enforcement of right. The mortgage creditor occasionally refuses to allow the mortgagor, or other person entitled to redeem, to exercise such right, thereby subjecting the land to a continuance of the mortgage lien, and perhaps impairing the validity or vendibility of the title. In such a case, and likewise when the creditor claims that the conveyance was absolute, and not by way of mortgage, or when there is a dispute as to the amount due, or there was a failure to make one a party to the foreclosure proceeding so as to cut off his right of redemption, (he mortgagor or other person entitled to redeem may proceed in equity to enforce the right of redemption, and may obtain a decree compelling the mortgage creditor, upon payment of the debt, to release or discharge the mortgage.
By the weight of authority, it is not necessary, in order to establish a right to redeem, that the person asserting the right shall previously have made an actual tender of the amount due upon the mortgage debt.71 But it has occasionally been asserted, eitber expressly or by implication, that tender before suit is necessary in the absence of exceptional circumstances.72
71. Hammett v. White, 128 Ala. 380, 29 So. 547: Rees v. Rhodes. 3 Ariz. 235, 73 Pac. 446; Longino v. Ball-Warren Co., 84 Ark. 521 106 S. W. 682; Deven v. Blake, 44 111. 135; Barr v. Vanalstine, 120 Ind. 590, 22 N. E. 965; Tucker V Witherbee, 130 Ky. 269, 113 S. \V. 123; Nye v. Swan, 49 Minn. 431, 52 N. W. 39; Kline v. Vogel, 90 Mo. 239, 1 S. -W. 733, 2 S. W. 408; Casserly v. Witherbee. 119 N Y. 522, 23 N. E. 1000; Reich v Cochran, 213 N. Y. 416, 107 N. E. 1029; Swegle v. Beile, 20 Ore.
323, 25 Pac. 633; Eschbach v. Zimmerman, 2 ?a. St. 313; Loving v. Milliken, 59 Tex. 423.
72. Dawson v. Overmyer 141 Ind. 438, 40 N. E. 1063; (but see Doyle v. Ringo, 180 Ind. 348 102 N E. 18); Porter v. Farmers' & Merchants' Sav. Bank of Lone Tree, 143 Iowa, 629, 120 N. W. 633; Aust v. Rosenbaum, 74 Miss. 893, 21 So. 555; Nestor v. Davis, 100 Miss. 199, 56 So. 347; Lambert v. Miller, 38 N. J. Eq. 117; Rodda v. Needham, 78 Wash. 636, 139 Pac. 628.
The petition or complainl must, in mosl jurisdictions, allege a Readiness on the part of the plaintiff to pay such sum as may be found to be due,73 provided at least it is framed on the theory that the debl secured or a portion thereof is still due and unpaid!**
After entering into possession as such, acquired the mortgagor's interest in the land.78 But if he enters into possession by reason of another title, he does not become liable to account upon his subsequent acquisition of the mortgage debt.79 And if he enters into possession after having acquired such other title, he will be presumed, it seems, to have done so under such title and not as mortgagee.80 But if such other title terminates or in some way becomes divested, then his subsequent possession may be referred to the mortgage.81
- Accounting. In case there is any question as to the amount Which may be due, the court will ordinarily refer the case to a master or commissioner to state an account between the parties.75 And the stathm Of an account is usually necessary if the mort-gage creditor has been in possession of the land, he being in such case liable for the rents and profits of the property, and entitled to credit for expenditures necessarily incurred by him.76