13 N.J. Eq. 244 | New York Court of Chancery | 1861
The material facts, so far as regards the present application, are not disputed. The bill ©harges, and the answer- admits, that although the conveyance of the premises in dispute made by the complainant to the defendant is absolute upon its face, it was in reality a mortgage, being given to secure the repay
It is proper, therefore, that the defendant should be restrained from alienation until the complainant’s rights are adjusted and determined.
The defendants’ answer is based on the assumption that although the deed was originally intended as a mortgage, yet the title in itself being absolute, and the complainant having failed to pay the debt at the time stipulated in the defeasance, his right to redeem is gone. This is an error.
Once a mortgage always a mortgage, is a maxim of equity to which there is no exception. Newcomb v. Bonham, 1 Vernon 8; Clark v. Henry, 2 Cowen 324.
The right of redemption is an inseparable incident, and the mortgagor cannot deprive himself of the right to redeem, even by an express covenant for that purpose. 4 Kent's Com. 143; 1 Vernon 8; 1 Powell on Mort. 116 a; Youle v. Richards, Saxton 534; Crane v. Bonnell, 1 Green’s Ch. 264; Van Wagner v. Van Wagner, 3 Halst. 27; Henry v. Davis, 7 Johns. Ch. R. 40.
The right may be surrendered by the mortgagor, (Saxton 534; 4 Kent’s Com. 143,) or be barred by foreclosure or by lapse of time. 1 Vernon 8, (Raithby’s ed.) note 1; 1 Mad. Ch. 519.
There is no distinction in this respect between a mortgage in usual form and an absolute conveyance made as a mere security for money. Every contract for the secu
The motion to- dissolve the injunction is denied with costs.