The opinion of the Court was drawn up by
Shepley J.— The plaintiff by this bill seeks to redeem the premises conveyed in mortgage by Ezekiel Holmes to Ira Thurston by deed bearing date on August 17, 1835. He is a subsequent mortgagee by a conveyance from Holmes made on February 9th, 1836. His deed was recorded before that made fo Thurston, which was assigned to the defendants by a deed bearing date on August 13th, 1839; but he had knowledge of that prior conveyance and does not attempt to postpone its operation to his own.
If the plaintiff is entitled to redeem, the counsel for the defendants does not contend, that he cannot sustain his bill according to the provisions of the Revised Statutes, and it will not be necessary to consider that question.
His right to redeem is first to be considered.
The mortgager made and presented to the mortgagee a paper in the words following: — “Winthrop, Oct. 21, 1837. I hereby give possession to the Rev. Ira Thurston of a certain lot of land situated in Winthrop village, bounded as follows, north by land owned by Samuel Morrill, Jr. east by Morton street, south and west by the burying ground, together with the buildings thereon ; said lot is the same w’bich I purchased of said Thurston, and is secured to him by mortgage thereon.” Signed, Ezekiel Holmes. The mortgagee states, that he never entered into possession or took any action by virtue of that paper, which was delivered by him to the defendants at the time when the assignment was made to them.
The statute then in force provided for the redemption of estates conveyed in mortgage within three years after the mortgagee, or his assignee, should “ lawfully enter and obtain the actual possession of such lands or tenements for condition broken.”
*353The entry might be made by process of law; by the consent in writing of the mortgager or those claiming under him; or by the mortgagee’s taking peaceable and open possession of the premises in the presence of two witnesses.
A foreclosure could not be made according to the second mode without an actual entry into possession for condition broken, by the consent in writing of the mortgager or those claiming under him.
In this case no such actual entry has been proved. On the contrary it appears, that none was made. The words contained in the paper signed by the mortgager, “ I hereby give possession,” do not prove the fact, that an actual entry was made and possession obtained. If, as contended in argument, it was the intention of the parties to admit that an actual possession had been taken, they could not cause a foreclosure in a manner not authorized by the statute. Could not substitute a fiction for the actual entry into possession required by the statute and make it as effectual as the act required. The legal effect of that paper, at most, could be no more than to express the consent required by the statute. It may be doubtful, whether it was sufficient for that purpose, for it does not in terms express a consent that possession should be taken for condition broken. The mortgager himself would not be estopped by it to deny, that actual possession had been taken for such a purpose, does not recite or declare, any such fact. Much less could the rights of a subsequent mortgagee be affected by it. It is the actual entry into possession for condition broken, that may effect in due time a foreclosure, being made by the written consent of the mortgager or his assignee. The written consent is of no effect but to make such entry lawful.
There being no proof of a legal foreclosure of the mortgage, the plaintiff is entitled to redeem.
His counsel contends that he should not be required to pay a greater sum, than the defendants paid to procure the indorsement of the note secured by the mortgage and interest thereon. Although that and the assignment of the mortgage *354may have been obtained by the payment of a sum less than the amount then actually due, the defendants thereby became the legal owners of the estate subject to the right of redemption, and thus entitled to retain it, until they were paid the full amount secured by the mortgage and remaining unpaid.
The plaintiff’s right to recover costs depends upon the provisions of the statute, c. 125, <§> 16. It was the design of that statute to enable one in certain cases to maintain such a bill without performance or tender of it, but not to authorize bim to recover costs, unless he had been prevented from doing it by some act of the mortgagee or his assignee. The mere ■denial of his right to redeem cannot prevent him from tendering performance.
The bill sets forth a written request to render an account, and alleges an unreasonable neglect or refusal.
The answers admit that such a request was made, and that .no account was presented in obedience to it. But they allege that at a previous hour of the same day, one of the defendants exhibited to the plaintiff the amount due upon the note .remaining unpaid, and secured by the mortgage, and informed bim that there were no claims for repairs or expenditures, and .that no rents or profits had been received. To an inquiry of .the plaintiff, whether he had not better take the amount due upon that note and let him have the property, the answer was, that he thought he should be willing, that some suitable person should say, taking into consideration all the property and the demands of both the parties, what would be right and just. ‘.The design of the statute being to afford to a party seeking to redeem, information of the exact amount claimed to be due .upon the mortgage, any failure to afford it within a reasonable time after request, must be regarded in the sense of the statute, as an, unreasonable neglect or refusal. The information respecting the amount due upon the note secured by the mort,gage, accompanied as it appears to have been at all times by the assertion of other claims to be adjusted before his right ■to redeem could be admitted, left it obscure and uncertain, •whether those other claims were not insisted upon as necessary *355to be paid by one entitled to redeem. Under such Circumstances the plaintiff, to remove all uncertainty and obscurity, might properly make the formal request set forth, and a neglect to answer it and to remove all uncertainty must be regarded as unreasonable.
The plaintiff is entitled to a decree for a release of the mortgage title upon payment of the amount secured by it, which remains unpaid, and to recover his costs.