delivered the opinion of the Court. The plaintiff’s argument, we think, is founded on a mistaken view of the rights and duties of the parties to a mortgage.
At the time when this bill was brought, the condition was broken, the defendant had entered for condition broken, and the three years had nearly expired. The plaintiff, however, brought his bill within the time, he has a right to redeem, and the only question is, upon what terms.
*359Where one condition is broken, and the entry has been made, and the three years are about expiring, and the mortgager wishes to redeem, and there are other securities -covered by the same mortgage, not due, if the mortgagee is unwilling to accept the amount not yet due, he is not obliged to do so ; but then to avoid the manifest injustice of a foreclosure, the Court will make a special decree, upon payment of the sum due, declaring that the proceeding shall stand open, leaving the mortgagee in possession, until the further sum shall become due. Saunders v. Frost, 5 Pick. 259. But no such course is required or would be proper in the present case.
The argument of the plaintiff seems to go on the ground, that it was the intent of the statute to give a mortgage debtor the additional term of three years’ credit beyond that stipulated by the parties, for all sums. But this is not so ; the provision of the statute was intended to avoid a forfeiture. The mortgager is allowed to redeem and regain the title and possession of the estate, on paying all that is due, and performing the condition so far as he can. This requires, that he should pay all that is due at the time of the decree. Saunders v. Frost, 5 Pick. 259, 275 ; Wetmore v. Green, 11 Pick. 462. The argument goes on the assumption, that after there is an entry for condition broken, there must be a new entry or a new notice, on the breach of each subsequent condition by the non-payment of principal or interest. But we think it is not so. Until a breach of condition, the rights of the parties are legal and not equitable. Newall v. Wright, 3 Mass. R. 138. But after breach of condition it is otherwise.
The reason why notice must be given when the mortgagee has entered before condition broken is, that otherwise he. could never foreclose. He could not enter on himself and so comply literally with the statute ; so notice is held to be good and sufficient for this purpose, as an act cy pres, and from necessity. But if a mortgagee enter after condition broken, then his entry shall be referred to his right, and he shall be presumed to have entered as well for the purpose of foreclosing as for taking the rents and profits. Then he has no -need of giving any notice of further breach of condition. By the breach of any condition, the estate is his, at law. The rights *360of the mortgager are equitable only. When .he comes to ask equity, he must do equity by paying all that is due on the mortgage.
A recent case was decided in Hampshire, somewhat similar in principle. Brooks v. Moody, 20 Pick. 474. In covenant against incumbrances, the plaintiff recovered a sum paid to extinguish an outstanding mortgage, though payment was made after the action brought.
The Court are of- opinion, that the plaintiff, in order to redeem, is bound to pay all that is due upon the mortgage at the time the account is taken. The prayer of the bill in such case is, that an account may be taken of what is due ; and the plaintiff must, by his bill, declare his readiness to pay the amount which may be found to be due.
It is analogous to an action on a penal bond. On a breach shown, the plaintiff recovers all that is due at the time of the hearing in chancery, although part of it has fallen due since the action brought.
Here the mortgagee has a good legal title, and legal and actual possession; and the plaintiff asks a hearing in equity. He must pay all that is due at the time of that hearing in order to restore him to the legal title and possession, that is, to redeem. The only exception is, where there are remaining conditions unperformed, as to pay notes not yet due, and the mortgagee declines taking payment before it is due ; and this is an exception allowed from necessity, in favor of the mortgager, to prevent the forfeiture of his estate.
Decree accordingly.