Spring v. Haines

The opinion of the Court was by

Whitman C. J.

— The bill in equity, in this case, sets forth a mortgage by the plaintiff to the defendant’s intestate, of sundry parcels of real estate, and that an entry has been made into some of the parcels, and with respect to these, that the mortgage has been foreclosed by the lapse of time since such entry. The plaintiff claims to have a right to redeem the residue; and to have the parcels, so entered upon, estimated, and to have them accounted for at such estimate, as so much paid towards the debt, to secure which the mortgage was made ; and alleges that the amount of such estimate, together with the receipts of the rents and profits of the whole mortgaged premises, and sundry payments otherwise made, are more than sufficient to pay the debt originally due, with interest thereon ; and prays, that the other parcels of said premises, in reference to which he avers that the mortgage has not been foreclosed, may be deemed to be restored to him.

It appears to us that the ground relied upon by the plaintiff is wholly untenable. The positions assumed are novel and unprecedented. The cases which lie cites are dissimilar to the one here presented. They are cases in which creditors were seeking to recover their debts secured by mortgage. In such cases, if the mortgage had been foreclosed, the creditors were holden to account for the value thereof towards the payment of their debts. But no case is to be found in which the mortgagor has been considered as having a right to have a part of the mortgaged premises, under any circumstances, estimated in payment of his debt, with a view to a redemption of the residue.

Besides, the plaintiff is mistaken in supposing that a foreclosure may take place, as to one part of the mortgaged premises, and not as to the residue. If he has a right to redeem any part he has a right to redeem the whole. So long as the mortgagor is suffered to remain in possession of any part of the mortgaged premises his right of redemption to the whole will continue. A. different doctrine would be attended with perplexities, to which the mortgagor is not to be subjected. While the mortgagee might have possession of part of the mortgaged premises, nearly equivalent in value and income to his debt and interest, the mortgagor might well remain quiet, he being left in the possession and enjoyment of the residue. If the mortgagee should, subsequently, before his» right of entry was gone, enter upon the residue the mortgagor could not redeem without paying the whole debt. And if a foreclosure, as supposed in this case, had taken place, as to a part, he must pay the whole debt in order to redeem the residue, and, at the same time, lose the part, as to which there would have been a foreclosure. The law would not sanction such an iniquitous procedure. ■ The plaintiff’s bill must therefore be dismissed with costs for the defendant. The conclusion to which we have arrived is fully supported by Cruise, title Mortgage XY, ch. Ill, <§> 66 and 67.

Mem. — Shepley J. was called upon to give his deposition, to be used in this case, and took no part in the decision.