54 Ark. 81 | Ark. | 1891
It is argued that the railway company, which was the owner of the equity of redemption in a-separate parcel of the premises upon which James’ vendor’s-lien existed, had tbe right, prior to the sale under James’ decree of foreclosure, to redeem the entire premises by paying the entire lien debt; and that the decree has not cut off that right, inasmuch as the company was not a party to the suit to foreclose.
The doctrine deducible from the principles which govern the rights of the parties in cases like this may be stated as follows: A purchaser of the equity of redemption of a part
of the mortgaged premises may force a redemption of the entire premises, and be subrogated to the rights of the mortgagee, only when the latter has failed to resort first to the other parts of the premises for the satisfaction of the mortgage debt, and neglects or refuses to apportion his debt and security upon equitable principles So as to permit the release of the alienated parcel.
In the case in hand the mortgagee has resorted by equitable foreclosure to the premises not conveyed by the mortgagor before proceeding against the parcel conveyed by him to the railway. The railway’s right to redeem its parcel remains untouched. It has no right, as we have seen, to redeem the other parts.
Let the decree be affirmed.