(E) Redemption and Foreclosure. (To whom Money payable.)

In a bill to foreclose a mortgage, the devisees of the land mortgaged ought to be the parties, and not the executors of the mortgagee.

Graham v. Carter, 2 Hen. & Munf. 6.

If several persons are interested in an equity of redemption of mortgaged estate, either as owners in common, or each as owner of a distinct parcel of the mortgaged premises, any one of them may redeem by paying the whole amount due on the mortgage; and the party removing the encumbrance is entitled to remuneration.

Gibson v. Crehore, 5 Pick. 146; Allen v. Clark, 17 Pick. 47; Parkman v. Welch, 19 Pick. 231.

An equity of redemption is indivisible, and cannot be apportioned among creditors; where, therefore, A, to secure a debt to B, mortgaged to him two pieces of land, by separate deeds, and C, a creditor of A, levied an execution on A's right in one of the pieces; it was held, that C was entitled to redeem both, by paying the whole purchase-money, but could not redeem the piece set off to him on execution, by paying such proportion of the whole debt as that piece bore in value to the whole mortgaged premises. Franklin v. Gorham, 2 Day, 142.

In Connecticut, the attachment of an equity of redemption creates a lien upon the estate, in favour of the attaching creditor, which entitles him to redeem.

Lyon v. Sanford, 5 Conn. 544.

Before the time specified for the payment of the money contained in a mortgage, chancery will not, on the tender of payment of the principal of the debt and interest up to the stipulated time of payment and costs, allow the mortgagor to redeem, and enjoin against an action at law for possession of the premises, as this would be to substitute another contract for that into which the parties had entered.

Abbe v. Goodwin, 7 Conn. 377.8

2. To whom the Mortgage Money shall be paid, ßand what shall be considered a Payment.g Mortgages, being part of the personal estate, belong to the executors or administrators, though it was formerly held, that if a feoffment in fee was made upon condition, that if the mortgagor paid the sum to the mortgagee, his heirs, executors, or administrators, that then the mortgagor should reenter, and the day passed without payment, and the mortgagee died, whereby the lands descended to his heir; in such case, the heir being named in the condition, and no bond or covenant given to make it appear a personal matter, and no deficiency of assets to pay creditors, that the heir, parting with the benefit descended to him, should have the money in the mortgage.

Chan. Ca. 88, Smith v. Smoult.

But afterwards it was truly settled by the Lord Chancellor Finch, that the money should go to the executors or administrators, and not to the heir; and the reason was, because equity follows the law. And at common law, if conditions or defeasances of mortgages are so penned, as no mention is made either of heirs or executors, in that case the money ought to be paid to the executors, because the money came out of the personal estate, and therefore ought to return thither again. But if the defeasance appoints the money to be paid to the heir or executor disjunctively, there, by the common law already mentioned, if the mortgagor pay the money precisely at the day, he

(E) Redemption and Foreclosure. (To whom Money payable.)

may elect (a) to pay it either to the heir or the executor. But where the precise day is past, and the mortgage forfeited, all election is gone in law, for in law there is no redemption. And when the case is reduced to an equity of redemption, it were perfectly against equity to revive the election of the mortgagor; because that would only tend to the delay of the payment of the money as long as he pleased, and end in compositions to pay the money into that hand which would use him best. And to say that the election should be in the court, would be to place an arbitrary power in it, which would tend to the inconvenience of the subject; since no man could safely pay the money in such cases, without a suit in equity. And, therefore, since there ought to be a certain rule, a better cannot be chosen, than to come as near as can be to the rule and reason of the common law. Now the law always gives the money to the executor where no person is named, and where the election to pay either to the heir or the executor is gone and forfeited in law, it is all one as if neither heir nor executor were named in the condition. And then, in natural justice and equity, the principal right of the mortgagee is to his money, and his right to the land is only as a deposit or pledge for his money; and therefore the money ought to be paid into the proper hand, that the mortgagee hath appointed receiver of his money, and that is his executor. And then the heir, who is only a trustee to keep the pledge, ought to deliver it back to the mortgagor; for though the heir has the use and benefit of the land till redeemed, yet he has it only as a pledge, and therefore is a trustee to restore it when the money is paid to the proper hand; and the heir himself, though he be proper to keep the pledge, being land, yet he is not proper to receive the money, it being purely personal. Nor is it hard that the heir should part with the land without having the money that comes in lieu of it; because we are to consider that the money was originally parted with from the personal estate, and had immediately come into the hands of the executor, had it not been placed out on this real security. Whether, therefore, the executor has assets or not, the mortgage-money should be paid to him. But the mortgagee, by any conveyance in his lifetime, or by his last will and testament, may dispose of it otherwise to whom he pleases.

Chan. Ca. 283; 2 Chan. Ca. 50, 51, 220; 2 Vent. 348, 351; Hard. 467; Vern. 170, 412; Prec. Chan. 11. [(a) If the mortgage be in fee, conditioned, that the mortgagor shall pay the money to the mortgagee, his heirs, executors, administrators, or assigns; and the mortgagee die before the mortgage forfeited, though the mortgagor has in this case his election to pay the money to either, yet it will belong to the executor. 2 Ventr. 351.]

If the heir of the mortgagee forecloses the mortgagor, the executor being no party, upon a bill by the executor against the heir of the mortgagee and the mortgagor, the land will be decreed the executor.

2 Vern. 66.

But if the executor of the mortgagee, after a foreclosure by the heir, brings a bill to have the benefit of the mortgage, the heir, if he thinks fit, may take the benefit of the foreclosure to himself, paying the executor the mortgage-money and interest.

2 Vern. 67.

And, if the mortgagor doth not redeem, the administrator shall have the land. Thus, where the mortgage was forfeited, the heir in possession by descent, no want of assets, and the mortgagor did not offer to redeem; the heir of the mortgagee was decreed to convey the lands to his administrator;

H

(E) Redemption and Foreclosure. (To whom Money payable.)

for as the money, being part of the personal estate, would have gone to him, so would the land, which was in lieu thereof.

Ellis v. Gnavas, 2 Ch. Ca. 50. If the mortgagee devise the land by will, not executed according to the statute of frauds, qu. whether the devisee or executor or administrator shall have the land?-it seems the devisee; for such devise appears to be out of the statute. See Powell, 428, (6th ed.)||

If there be a mortgage in fee of a long standing, and there be two descents cast since the mortgage was made; though the mortgagor, by answer, says he will not redeem, yet the mortgage shall go to the executor, and not to the heir, the equity of redemption not being foreclosed or released. 2 Vern. 367, Tabor v. Grover; ||1 Eq. Ca. Ab. 328, 2 Freem. 227.||

[Although a mortgagor, the mortgage being forfeited, releases to the heir of the mortgagee in fee, yet the administrator shall have the benefit of that estate, even though there be no debts. And so it is in case a mortgage be foreclosed, or that the mortgage be of so ancient a date as in the ordinary course of the court it be not redeemable; for, in case the mortgagee be not actually in possession, it will be looked upon to be personal estate.

2 Vern. 193.

And, where there was a husband and wife, and the wife, having a mortgage in fee of a copyhold, died leaving issue, which issue was admitted, and died, and then the husband, as administrator to his wife, claimed title to the copyhold, being a mortgage, and so part of his wife's personal estate : it was decreed to him against the heir at law, although the latter had been admitted.

Turner v. Crane, 1 Vern. 170; [2 Ch. Rep. 155.||

So, a mortgage of an inheritance, to a citizen of London, hath been held to be part of his personal estate, and divided according to the custom. 1 Ch. Ca. 285; 1 Vern. 4.

But where a mortgage was devised as real estate, after a decree of foreclosure nisi, it was held to be personal estate for payment of debts, if assets fell short, though considered as real estate between devisor and devisee. Garrett v. Evers, Mosel. 364.] See Powell, 423 a.||

But as between devisor and devisee it was decided, that a mortgage did not pass under a devise of all lands in strict settlement; although a decree for an account on a bill of foreclosure had been obtained before the date of the will; for the mortgage was considered a chattel interest until the final order of foreclosure; and, as it then became the testator's fee-simple estate, it could not pass under his antecedent will.

Thompson v. Grant, 4 Madd. 438.

But if the devise is made after the final decree of foreclosure, the lands may pass, though treated as a mortgage, if the intention appear to be so. Silberschidt v. Schiott, 3 Ves. & B. 49.||

[But a mortgage will not pass as land under a general description, applicable to it in point of locality, if there be other circumstances sufficient to show, that the owner considered it as personal property.

Martin v. Moulin, 2 Burr. 969.

Where money secured by a mortgage (to which the executor was legally entitled) was articled to be laid out in land, and settled on the issue of the

(E) Redemption and Foreclosure. (To whom Money payable.)

marriage, it was by Hale, Chief Justice, on a special verdict, adjudged to be bound by the articles.

Laurence v. Beverley, cited 3 P. Wms. 217; ||1 Vern. 471; 2 Keb. 841.||

If two persons advance a sum of money on mortgage, and take the mortgage to themselves jointly, without inserting in the deed the words to be equally divided between them, and one of them dies; when the money comes to be paid, the survivor shall not have the whole, but the representative of him that is dead shall have a proportion, because, from the nature of the transaction, the court presumes this to be the intention of the parties. Thus, N and S lent 2000l. to G on mortgage, 1450l. whereof was the money of S, and 550%., the residue, the money of N, and it appeared, by a note under both their signatures, that the 14501. was delivered by S to N, and that, if the mortgage was paid off, then the 1450l., with interest thereon, was to be re-delivered into the hands of S, for the uses of his will. Afterwards, and before the day of redemption, S made his will, reciting the above memorandum, and disposed of his share thereby. The lands were redeemed on the day, and the whole money and interest paid to N, S being dead, and he claiming it by survivorship. But, on a bill exhibited by his executor, the court was clearly of opinion, that by equity there ought to be no survivorship in a case of this nature; and that the note under the hands of both the parties, and the will of S, showed plainly that there was a trust between them, that, on repayment, each of them was to have his money, with interest.

2 Ves. 258; 3 Ves. 631;|| Petty v. Styward, 1 Ch. Rep. 58; 1 Eq. Ca. Abr. 290; and see 2 Ves. 258. As to husband's interest in the wife's mortgage, vide tit. Baron and Feme.

And if two persons, being mortgagees, foreclose the mortgagor, the mortgaged estate shall be divided between them, because their intent is presumed to have been, that it should be so divided.

2 Ves. 258.] Where there is a joint-tenancy in a mortgage, the surviving mortgagee will be held a trustee for the representatives of a deceased co-mortgagee. Randall v. Phillips, 3 Mason, 378.

But if a mortgagee in fee enter for a forfeiture, and after seven years' enjoyment absolutely sell the land to J S and his heirs, the estate shall not be looked upon to be a mortgage in the hands of J S so as to make it part of his personal estate, but it shall be for the benefit of his heir.

Vern. 271; Cotton v. Iles, ||1 Eq. Ca. Ab. 273, 328; Barn. Ch. Ca. 46.||

A being in possession of an estate that was a mortgage in fee, by will devises it to his daughters B and C and their heirs, and dies; B marries, and dies; the question was, Whether the share of B should be decreed real or personal estate, and, consequently, go to her heir, or to her husband as her administrator? It was decreed against the husband; and my Lord Keeper put this case: A man seised of lands in fee, which were only mortgaged to him, devises them to his son and heir, and his heirs; surely these lands shall descend as an inheritance; or, though the mortgage be paid off, shall not the money be considered as lands, and go to the heir and his heirs, as the lands would have done, and this purely by the intention of the testator? and did not the testator, who had a governing power, intend in the present case that the mortgaged lands should be considered as any other lands of inheritance, and be subject to, and be directed by, the same rules which other estates are? Preced. Chan. 265, Noys v. Mordant; Gilb. Ch. R. 2; 2 Vern. 581.||

When a mortgagee purchases or takes a release of the equity of redemp

(E) Redemption and Foreclosure. (To whom Money payable.) tion of a part of the mortgaged premises, the mortgage is extinguished pro

tanto.

James v. Morey, 2 Cowen, 246.

A delivery of money from a mortgagor to a mortgagee with an injunction to pay, without a receipt or endorsement on the mortgage, or on the collateral security, operates as a payment, and if the money be afterwards delivered back by the mortgagee to the mortgagor, this transaction shall be construed to be a loan on the personal credit of the mortgagor, and the lien of the mortgagee, as to the sum paid, cannot be revived by the agreement of the mortgagor and mortgagee as to third persons who hold bond fide encumbrances upon the mortgaged premises.

Marvin v. Vedder, 5 Cowen, 671.

Where a note and mortgage are given to secure the payment of a sum of money, the renewal of the note does not operate as a discharge of the mortgage.

Pomroy v. Rice, 16 Pick. 22; Watkins v. Hill, 8 Pick. 522. See Van Deusen v. Frink, 15 Pick. 449; Crane v. March, 4 Pick. 131; Davis v. Manard, 9 Mass. 242; Thayer v. Mann, 19 Pick. 535; Peters v. Goodrich, 3 Conn. 146; Bolles v. Chauncey, 8 Conn. 389.

If a mortgagee who has received an equitable satisfaction of his mortgage, afterwards attempt to set it up as a subsisting lien upon the premises, satisfaction of the mortgage may be decreed, so that it may be cancelled on the record of mortgages.

Kellog v. Wood, 4 Paige, 578.

Where notes given with the mortgage are barred by the statute of limitations, yet, if they have not been paid, the mortgagee has his remedy on the mortgage.

Thayer v. Mann, 19 Pick. 535.

If one of several grantees of the mortgagor pay the mortgage debt, the mortgage will be discharged as to all of them.

Taylor v. Porter, 7 Mass. 355.

A receipt by the mortgagee, acknowledging satisfaction of the debt secured by the mortgage, is not conclusive evidence of a discharge of the mortgage so as to defeat the title under it, but it is competent for the mortgagee to explain the transaction.

Perkins v. Pitts, 11 Mass. 125; Parsons v. Welles, 17 Mass. 419; Porter v. Hill, 9 Mass. 34. Sed vide contra, Porter v. Perkins, 5 Mass. 233.

The act of taking possession of mortgaged premises, by the mortgagee, under a decree of foreclosure, is, by operation of law, an extinguishment of the mortgage debt.

Derby Bank v. Landon, 3 Conn. 62.

A decree of foreclosure, without any subsequent act in païs, is an appropriation of the pledge, and an extinguishment of the mortgage debt. Swift v. Edson, 5 Conn. 531.

Although it is a general rule that a mortgagee may first realize his collateral securities and then foreclose for the balance, yet where a policy of assurance on the life of the mortgagor was upon a further advance being assigned as a collateral security, with a declaration of trust that the mortgagee should stand possessed of the moneys to be received under the policy upon trust to pay his debts, &c., and without any power of sale; the court