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Equity of Redemption

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EQUITY OF REDEMPTION. A right which the mortgagor of an estate has of re deeming it after it has been forfeited at law by the non-payment at the time appointed of the money secured by the mortgage to be paid, by paying the amount of the debt, in terest, and costs.

The phrase of equity of redemption is indiscrimi nately, though often incorrectly, applied to the right of the mortgagor to regain his estate, both before and after breach of condition. In North Carolina, by statute, the former is called a legal right of redemption, and the latter the equity of redemption, thereby keeping a just distinction be tween these estates ; 1 N. C. Rev. Stat. 266 ; State v. Laval, 4 McCord (S. C.) 340. The interest is rec ognized at law for many purposes: as a subsisting estate, although the mortgagor in order to enforce his right is obliged to resort to an equitable pro ceeding, administered generally in courts of equity, but in some states by courts of law; Anderson v. Neff, Li S. & R. (Pa.) 223; or in some states may pay the debt and have an action at law ; Jackson v. Davis, 18 Johns. (N. Y.) 7; Den v. Spinning, 6 N. J. L. 466; Morgan's Lessee v. Davis, 2 H. & McH. (Md.) 9.

This estate in the mortgagor is one which he may devise or grant; 2 Washb. R. P. 40; and which is governed by the same rules of devolution or descent as any other estate in lands; Chamberlain v. Thompson, 10 Conn. 243, 26 Am. Dec. 390 ; 2 Hare 35. He may mortgage it; Bigelow v. Willson, 1 Pick. (Mass.) 485; and it is liable for his debts ; Fox v. Harding, 21 Me. 104; Pierce v. Pot ter, 7 Watts. (Pa.) 475; Freeby v. Tupper, 15 Ohio 467; United States Bank v. Huth, 4 B. Monr. (Ky.) 429; Curtis v. Root, 20 Ill. 53; Punderson v. Brown, 1 Day (Conn.) 93, 2 Am. Dec. 53; State v. Laval, 4 McCord (S. C.) 336; but see Palmer v. Foote, 7 Paige Ch. (N. Y.) 437; Goring's Ex's v. Shreve, 7 Dana (Ky.) 67; Powell. v. Williams, 14 Ala. 476, 48 Am. Dec. 105; Baldwin v. Jenkins, 23 Miss. 206; Buck v. Sherman, 2 Dougl. (Mich.) 176 ; Thornton v. Pigg, 24 Mo. 249; Van Ness v. Hyatt, 13 Pet. (U. S.) 294, 10 L. Ed. 168; and in many other cases, if the mortgagor still retains possession, he is held to be the owner ; 5 Gray 470, note; Parish v. Gilman ton, 11 N. H. 293; City of Norwich v. Hub bard, 22 Conn. 587; Ralston v. Hughes, 13 III. 469.

Any person who is interested in the mort gaged estate, or any part of it, having a le gal estate therein, or a legal or equitable lien thereon, provided he comes in as privy in estate with the mortgagor, may exercise the right; including heirs, devisees, execu tors, administrators, and assignees of the mortgagor; Sheldon v. Bird, 2 Root (Conn.) 509 ; Craik's Adm'rs v. Clark, 3 N. C. 22; Merriam v. Barton, 14 Vt. 501; Coombs v. Warren, 34 Me. 89; Bell v. Mayor, etc., of New York, 10 Paige, Ch. (N. Y.) 49; Smith v. Manning, 9 Mass. 422; H. B. Clatlin Co. v. Banking Co., 113 Fed. 958 ; Bovey De

Laittre Lumber Co. v. Tucker, 48 Minn. 223, 50 N. W. 1038; subsequent ineumbrancers; Burnett v. Denniston, 5 Johns. Ch. (N. Y.) 35; Cooper v. Martin, 1 Dana (Ky.) 23; Farnum v. Metcalf, 8 Cush. (Mass.) 46; Hoover v. Johnson, 47 Minn. 434, 50 N. W. 475; judgment creditors; Dabney v. Green, 4 Hen. & M. (Va.) 101, 4 Am. Dec. 503; Elliot v. Patton, 4 Yerg. (Tenn.) 10; Kent v. Laf fan, 2 Cal. 595; Bowen v. Van Gundy, 133 Ind. 670, 33 N. E. 687; Schroeder v. Bauer, 140 Ill. 135, 29 N. E. 560 ; tenants for years; Loud v. Lane, 8 Mete. (Mass.) 517 ; even if only tenant of a portion of the land mort gaged ; Kebabian v. Shinkle, 26 R. I. 505, 59 AU. 743; one having an easement; Bacon v. Bowdoin, 22 Pick. (Mass.) 401; one hav ing an interest as a partner ; Emerson v. Atkinson, 159 Mass. 356, 34 N. E. 516; a jointress; 1 Vern. 190; 2 Wh. & T. Lead. Cas. 752; dowress and tenant by curtesy ; Eaton v. Simonds, 14 Pick. (Mass.) 98; Jack son v. Mfg. Co., 86 Ark. 591, 112 S. W. 161, 20 L. R. A. (N. S.) 454; Davis v. Mason, 1 Pet. (U. S.) 503, 7 L. Ed. 239; Gatewood v. Gatewood, 75 Va. 407 ; Wilkins v. French, 20 Me. 111; Denton v: Nanny, 8 Barb. (N. Y.) 618; Wade v. Miller, 32 N. J. L. 296; Hart v. Chase, 46 Conn. 207; Robinson v. Lake nan, 28 Mo. App. 135 (but to be endowed by the law, the widow must pay the mortgage; Rossiter v. Cossit, 15 N. H. 38) ; a widow who had joined in the mortgage; McArthur v. Franklin, 15 Ohio St. 485; Posten v. Mil ler, 60 Wis. 494, 19 N. W. 540; MeGough v. Sweetser, 97 Ala. 361, 12 South. 162, 19 L. R. A. 470; 34 U. C. Q. B. 389; or where the husband had mortgaged prior to the mar riage; Merselis v. Van Riper, 55 N. J. Eq. 618, 38 AU. 196; or where she had joined in the mortgage but the equity of redemption was reserved to the husband alone; [1894] 2 Ch. 133; and where she had released her dower, she was entitled to redeem as dow ress, though the dower had not been assign ed; Gibson v. Crehore, 5 Pick. (Mass.) 146 (followed in McCabe v. Bellows, 1 Allen [Mass.] 269) ; Simonton v. Gray, 34 Me. 50; also where she did not join in the mortgage, which was for purchase money ; May v. Fletcher, 40 Ind. 575 (overruling Fletcher v. Holmes, 32 id. 497) ; Wing v. Ayer, 53 Me. 138 ; Wheeler v. Morris, 2 Bosw. (N. Y.) 524; and she may redeem where the husband alone had given a second mortgage ; Hays v. Cretin, 102 Md. 695, 62 Atl. 1028, 4 L. R. A. (N. S.) 1039; so a widow, though not entitled under the statute to redeem as such, may do so when the mortgage property is the family homestead; Walden v. Speigner, 87 Ala. 379, 6 South. 81; and where she had not joined in a mortgage during coverture, she was held, on a bill to redeem, dowable of the whole premises and not merely in the equity of re demption and she was not required to re deem ; Opdyke v. Bartles, 11 N. J. Eq. 133.

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