27 Barb. 230 | N.Y. Sup. Ct. | 1858
At the time the bill was filed by Coburn, in December, 1839, Walter Smith, the mortgagor, was seised in fee of the equity of redemption of certain portions, in severalty, of the mortgaged premises, and these premises were primarily liable for the satisfaction of the mortgage debt. To these premises Coburn acquired, by the master’s deed, an absolute title, unless those who had become or subsequently became grantees of other portions of the mortgaged premises have the right to redeem. It is claimed by the appellant’s counsel that the plaintiff .has the right to redeem only that portion of the mortgaged premises which had been grant
It is well settled that one who has acquired the equity of redemption to a part of the mortgaged premises has no right to redeem for that part only. On the contrary, if he comes to redeem, he must redeem the entire mortgaged premises. (Palk v. Ld. Clinton, 12 Ves. 48. 4 Kent’s Com. 163. 2 Hoff. Ch. Pr. 157.)
The mortgagee may insist upon a full redemption, and the rule is undoubtedly mainly for his benefit.- Suppose, however, that the mortgagor has granted a portion of the mortgaged premises, and still retains the remainder, and the mortgagee forecloses the mortgagor’s equity of redemption without making his grantee of a portion of the premises a party, and purchases the entire premises; may he, when the grantee of a portion of the premises comes to redeem, say that he will retain that portion which had not been aliened by the mortgagor, and nermit the party seeking to redeem, to redeem the part granted to him, and for the purpose of ascertaining the amount to be paid resort to an apportionment ? I think cases may be supposed when this would be highly equitable. Perhaps it would be necessary to go into an account of the rents and profits, when the mortgagee had gone into possession, and then ascertain the value of the premises not aliened by the mortgagor, by a sale or otherwise, excluding permanent and valuable improvements made by the mortgagee after he had gone into possession. * -
In Powell on Mortgages, at page 351, it is said, “A jointress may redeem; and although the jointure be secured only on part of the estate, she may redeem the whole.” The ref- . erence is to Howard v. Harris and some other cases, not in my library. At page 150 the case of Howard v. Harris is
Palk v. Lord Clinton, (12 Ves. 48,) was a bill to redeem a prior mortgage which included lands not included in the second, mortgage, and the second mortgage was under a different title. What the chancellor said (see p. 58 et seq.) was upon a question of parties, and he held that a mortgagee coming to redeem a prior mortgage, must make the mortgagor, or the heir, a party, and also prior mortgagees; and the chancellor stated, what all agree in, that a subsequent mortgagee must redeem the entire mortgage. There is nothing in the case to show that one having the equity of redemption of a portion of the mortgaged premises has the absolute right to redeem the entire premises, after they have been sold on a foreclosure and the purchaser has entered into possession, &c.
That the mortgagee is entitled to insist that the whole of the
It is not necessary to pursue this question. The learned referee has permitted Coburn to retain that portion of the mortgaged premises, the title of which remained in Smith, the mortgagor, upon his delivering the possession of the residue to the respective owners, and releasing and discharging the same from his mortgage and paying costs. What more can Coburn ask ? It seems to me that this saves all his equities. He has an election, and if he so elects, then the plaintiff must redeem all the premises. If he prefers to retain the portion of which Smith was seised, it will be evidence that it was and is sufficient to satisfy the mortgage; and if so, he cannot, as against the grantees of different portions of the premises, who were not parties to the foreclosure suit, claim to hold their portions. If the premises which he is permitted to retain would have been insufficient, at the time of sale, to produce the amount owing upon the bond and mortgage, or would be insufficient now, it is to be observed that he has had the rents and profits of the remaining lands for many years, and .they are to be taken into the account. It comes to this: assuming that the accounting is right, Coburn has his election to retain the Smith land and pay costs, and then the whole account will be settled. If these lands are wo'rth more than the balance found in his favor, he will retain the lands; if.less, then he may take the balance due to him, and the plaintiff will redeem all and take all. Why is not this strictly equitable ?
But another question is made by Coburn. In taking the account, the referee has disallowed certain charges made by Coburn for permanent improvements, some $700, made before the commencement of the action, and $2000 since its commencement. I have come to the conclusion that the judgment ought not to be reversed for the disallowance of these items. The referee has been governed by the principles applicable tb accounting between the mortgagor and a mortgagee
Grover, Marvin and Davis, Justices.]
I think the judgment should be affirmed, with costs.