Phelps v. Ellsworth

3 Day 397 | Conn. | 1809

By the Court.

At law, both mortgages are forfeited; the mortgagee has a legal title to both, 't he only inquiry is, what is equitable between the parties. All agree, that the moi tgagor, on his petition, cannot redeem one mortgage without the other. The reason assigned is, that as his relief is in equity only, he shall do equity to obtain it. The principle guiding such decisions is that it is equitable he should redeem both, or neither; and surely it cannot vary the principle, and ought not to alter the rule of equity, between the parties, that one, or the other, applies for it, unless the situation of the party seeking relief, requires an extraordinary interposition of the court.

This is the usual application, by the mortgagee, not seeking an original equity, but simply, that the court will limit the time, within which the mortgagor shall exercise his equitable rights. His equitable rights are, to redeem on paying all that is clue upon both mortgages. This principle extends to all mortgages existing between the same parties, whether they embrace the same land ⅛ part, as in this case, or are wholly distinct, and independent. And were the court to adopt a different rule, and separate these mortgages, by their decree, and limit the time of redemption for each, the mortgagee might refuse the money, and compel the mortgagor to seek relief. The court would then decree that, which we think equity requires should now be decreed. We perceive nothing erroneous in the record.

Judgment affirmed.