A wife is entitled by reason of her in choate right of dower to redeem during the lifetime of her husband ; Lamb v. Montague, 112 Mass. 352; Mackenna v. Trust Co., 184 N. Y. 411, 77 N. E. 721, 3 L. R. A. (N. S.) 1068, 112 Am. St. Rep. 620, 6 Ann. Cas. 471; Gatewood v. Gatewood, 75 Va. 413 ; and her equity of redemption is stronger in case of homestead property ; Moore v. Smith, 95 Mich. 71, 54 N. W. 701; Smith v. Hall, 67 N. H. 200, 30 Atl. 409.
A mortgagee for adequate value and in good faith may acquire the equity of re demption ; Wilson v. Vanstone, 112 Mo. 315, 20 S. W. 612; and a second mortgagee who purchases such equity is entitled to any pay ments that may have been made on the first mortgage, but which were not credited there on ; Babbitt v. McDermott (N. J.) 26 AU. 889.
Where the necessary amount has been ten dered within the statutory period for re demption, it can be followed up by suit to redeem at any time before the right to bring suit is barred ; Wood v. Holland, 57 Ark. 198, 21 S. W. 223. A court of equity has the discretion governed by the equities of each case, to name terms on which it will let in a party to redeem ; Hannah v. Davis, 112 Mo. 599, 20 S.. W. 686.
Where a bill to redeem is filed before the debt is due, it must be dismissed, although the hearing is not had until after the debt is due ; Bernard v. Toplitz, 160 Mass. 162, 35 N. E. 673, 39 Am. St. Rep. 465.
Any provision or stipulation in a mortgage which will fetter or "clog the equity of re demption" (as the phrase goes) is void; [1902] A. C. 24; [1903] A. C. 253; and these two cases in the House of Lords may be con sidered as settling the question in England after many and varying decisions since the leading case of Howard v. Harris, 1 Vern. 33. The same doctrine prevails in this coun try; Parmer v. Parmer, 74 Ala. 285; Walling v. Aiken, 1 McMul. Eq. (S. C.) 1; Clark v. Henry, 2 Cow. (N. Y.) 324; Quartermous v. Kennedy, 29 Ark. 544; Baxter v. Child, 39 Me. 110; Stover's Heirs v. Bounds' Heirs, 1 Ohio St. 107; Bayley • v. Bailey, 5 Gray (Mass.) 505; Hazeltine v. Granger, 44 Mich. 503, 7 N. W. 74. The "equity of redemption is inseparably connected with a • mortgage and the right cannot be abandoned by any stipulation of the parties made at the time, even if embodied in the mortgage"; Peugh v. Davis, 96 U. S. 332, 24 L. Ed. 775; the rule protecting the equity of redemption is "well settled" and "characterized by a jealous and salutary policy," and a sale by the mortgagor must be almost as closely examined as one by a cestui que trust; Villa v. Rodriguez, 12 Wall. (U. S.) 323, 20 L. Ed. 406.
The doctrine that equity will not permit the parties to a mortgage to "clog the equi ty of redemption" is only another expression of the maxim "once a mortgage always a mortgage"; 1 Vern. 33 (where the latter ex pression seems to have originated).
The provision is invalid, not only If con tained in the mortgage, but also if there is a separate contract which is part of the same transaction, whether in writing or by parol; Mooney v. Byrne, 163 N. Y. 86, 57 N. E. 163 ; Turpie v. Lowe, 114 Ind. 37, 15 N. E. 834; Wright v. Bates, 13 Vt. 341; [1904] A. C. 323; 11 Ir. Ch. 367; [1892] A. C. 1; Plummer v.
Ilse, 41 Wash. 5, 82 Pac. 1009, 2 L. R. A. (N.1 S.) 627, 111 Am. St. Rep. 997 ; First Nat. Bank of David City v. Sargeant, 65 Neb. 594, 91 N. W. 595, 59 L. R. A. 296; Ind. Rep. Al lahabad Series 559 (where the rule was en forced in India) ; though not necessarily of the same date; Batty v. Snook, 5 Mich. 231; Tennery v. Nicholson, 87 Ill. 464 ; Bradbury v. Davenport, 114 Cal. 593, 46 Pac. 1062, 55 Am. St. Rep. 92; but a separate and inde pendent agreement, subsequent to the mort gage, depriving the mortgagor, in effect, of his right to redeem, has been held valid; [1902] A. C. 461; Gleason's Adm'x v. Burke, 20 N. J. Eq. 300; Wynkoop v. Cowing, 21 Ill. 570; Bradbury v. Davenport, 120 Cal. 152, 52 Pac. 301; Trull v. Skinner, 17 Pick. (Mass.) 213 (where the subject is discussed by Shaw, C. J.) ; Shouler v. Bonander, 80 Mich. 531, 45 N. W. 487; McMillan v. Jewett, 85 Ala. 478, 5 South. 145; though it "will be closely scrutinized to guard the debtor from oppression" and there must be a new and adequate consideration ; Linnell v. Lyford, 72 Me. 280; Brown v. Gaffney, 28 Ill. 149; and indeed cases may be found which treat the subject wholly with respect to the ques tion whether the transaction was unconscion able; Pritchard v. Elton, 38 Conn. 434; or deny that there is any fiduciary relation be tween a mortgagor and mortgagee ; De Mar tin v. Phelan, 115 Cal. 538, 47 Pac. 356, 56 Am. St. Rep. 115. See MORTGAGE.
Many of the cases cited supra are those of absolute conveyances held to be mortgages carrying an equity of redemption and this fact may be shown by parol; Strong v. Stew art, 4 Johns. Ch. (N. Y.) 167; Cullen v. Carey, 146 Mass. 50, 15 N. E. 131; Miller v. Thomas, 14 III. 428.
So where the parties to a mortgage nego tiated an absolute sale for a larger amount, with conveyance in fee and a lease with an option to purchase if rent were punctually paid, a default was held fatal to the right to repurchase; 1 Russ. & M. 506 ; it being no debt, but a conditional sale, which carries no equity of redemption; Conway v. Alex ander, 7 Cra. (U. S.) 218, 3 L. Ed. 321; Haynie v. Robertson, 58 Ala. 37; Robinson v. Cropsey, 2 Edw. Ch. (N. Y.) 138; but the transaction will be closely scrutinized ; Spence v. Steadman, 49 Ga. 133. See a full discussion of the "The Clog on the Equity of Redemption" by Prof. Bruce Wyman in 21 Harv. L. Rev. 459.
Where a mortgagee of the equitable inter est of the beneficiary in a resulting trust purchased the equity of redemption of such beneficiary, they did not merge where such merger was not for the interest of the mort gagee; Coryell v. Klehm, 157 Ill. 463, 41 N. E. 864.
A foreclosure sale without redemption may be decreed in case of a mortgage of a rail road or a business plant, of which the value is in keeping it in its entirety ; Hammock v. Loan & Trust Co., 105 U. S. 77, 26 L. Ed. 1111; even when a state statute provides that all sales of real estate shall be subject to redemption; Pacific Northwest Packing Co. v. Allen, 116 Fed. 312, 54 C. C. A. 648; Sioux City Terminal R. & Warehouse Co. v. Trust Co., 82 Fed. 124, 27 C. C. A. 73.
See MORTGAGE.