57 Ark. 533 | Ark. | 1893
The appellants filed their complaint in equity to redeem from a sale under a power contained in a deed of trust lands described in their complaint. A demurrer was sustained to their complaint, and they appealed. The complaint does not state that they tendered and offered to pay to the purchaser the amount of the sale with interest thereon at the rate of ten per cent, per annum from the date of the sale till the date of the tender, as required by the statute. Mansfield’s Digest, sec. 4759. Nor is there any offer in the complaint to do this. But the complaint avers that the purchaser had sold the lands for $3700 and had received one thousand dollars on his sale, and states that they had tendered one thousand dollars additional, and that these sums, aggregating two thousand dollars, were sufficient to cover the amount of the sale under the trust deed, with ten per cent, interest thereon, and that this is all the creditors secured by the trust deed are entitled to receive, notwithstanding it appeared that their debts secured by the deed of trust with interest amounted to about $4000. The complaint prays that one thousand dollars deposited by complainants, and one thousand dollars received by the purchaser at the sale under the mortgage, upon his sale of the lands to Johnson, be applied to the payment of the $1800, for which the lands were sold under the mortgage, and the interest thereon; and that Johnson’s notes, held by the purchaser, for a balance of $2700 of purchase money due from Johnson to the purchaser at the sale under the mortg-age be applied to plaintiffs’ debts against the mortgagor, and that the sale to Johnson of the lands purchased at the mortg-age sale by his vendor be confirmed. They ask for redemption from the sale under the mortgage and for confirmation of the sale to Johnson by the purchaser under the mortgage of the lands he bought.
The right of redemption is a necessary incident to a mortgage. The rule in equity requires that, to redeem property sold under a mortgage for less than the mortgage debt, the whole mortgage debt must be tendered or paid into court, and that it is not sufficient to tender the amount for which the property sold. This is upon the principle that “ he who seeks equity must do equity.”
Independent of the statute allowing redemption by paying the amount for which the property sold with interest, the entire amount of the mortgage debt must be paid to effect a redemption. Pomeroy’s Equity Jur. sec. 1220; Collins v. Riggs, 14 Wallace, 491.
Any one holding a legal or equitable lien may redeem. 3 Pomeroy’s Eq. sec. 1220.
The statute of this State provides that real property sold under a mortgage ‘ ‘ may be. redeemed by the mortg-agor at any time within one year from the sale thereof by payment of the amount for which said property is sold, together with ten per cent, interest thereon and costs of sale.” Mansfield’s Digest, sec. 4759. To effect a redemption under this statute, it must be complied with.
We are of the opinion that the demurrer was well taken, and was properly sustained.
The appellants’ equitable right to redeem was not affected by the sale under the mortgage.
The decree is affirmed.
The distinction between redemption from a sale under a mortgage, as provided by section 4759 of Mansf. Dig., and redemption in equity from the lien of a mortgage, is pointed out in Wood v. Holland, ante, p. 198. (Rep.)
