78 U. S. 217; Van Dusen v. Worrell, 4 Abb. Ct. App. Dec. 473; Miller v. McGuckin, 15 Abb. (N. C.) 204; Hart v. Ten Eyck, 2 Johns. Ch. 62, 108; Enos v. Sutherland, 11 Mich. 538, 542; Budd v. Van Orden, 33 N. J. Eq. 143; S. C., Id. 564.) When he cannot restore the land it will compel him to restore that which stands in his hands for the land, and will not permit him to assert that it is not land when the assertion would be profitable to himself but unjust to the one whom he wronged. He cannot escape by offering to pay what he received on selling the lands, but must pay the value at the time of the trial. He cannot cut off the right of redemption and convert it into a personal liability, for he is still a mortgagee, and subject as such to the mortgagor's rights. The fact that the injured mortgagor need not take the proceeds of the sale, but may insist on the proved value of the land, as well as the pleadings and proofs, show that this is a pure action to redeem, and must be so regarded for all purposes, including the defense of the Statute of Limitations. While the mortgagor is helpless as against his grantee, she is not helpless as against him.

The defendants insist that as the plaintiff can only recover a money judgment, the cause of action is in the nature of an accounting for money had and received, and hence that the six-year, or at the most the ten-year Statute of Limitations is a bar. This is not an action, however, to recover money, but to redeem land from a mortgage, and but for the misconduct of the defendant would have resulted simply in a judgment of redemption, with an accounting for the rents and profits of the land, after payment of the debt by the plaintiff, according to her demand and offer before the commencement of the action. The period of limitation provided by the Code, within which an action to redeem from a mortgage may be maintained, is twenty years after breach of the condition or the nonfulfillment of the covenant therein contained. (Code Civ. Pro., § 379.) So far as the defendants are concerned, the plaintiff had a right to redeem. She brought her action to redeem and established it by evidence, and was entitled to judgment accordingly, but as that judgment would be ineffectual because the mortgagee had sold the land, equity will simply vary its relief from a judgment of redemption in land to a judgment of redemption in money representing the land. If the plaintiff had not elected to redeem, but to sue for money had and received to her use, the case of Mills v. Mills (115 N. Y. 80), relied upon by the defendants, might be an authority. In that case, however, as was stated by this court, "all the relief asked for in the complaint is an accounting and a judgment for a sum of money, and no other relief was needed or possible upon the facts established. This was in no sense an action to redeem, as there was no mortgage and nothing to redeem." The relief demanded, as appears from the appeal book on file in this court, was simply a judg

ment "for all moneys received by" the defendant. No claim was made that the two transactions, which were four years apart, constituted a mortgage, or that there was ever a right to redeem. The theory of the action was that the defendant lawfully sold the land and should account for the proceeds, after deducting his own claim. Thus, the court said: "Absolute title to the lands was vested in the defendant, evidently with the intention that he might sell them and reimburse himself, and pay over any surplus to his brother." The fundamental fact that the defendant sold without right was wanting in that case, and hence the principle, which is the basis of our judgment, could not be applied. It is the wrongful conveyance by the mortgagee in possession, under a deed absolute on its face, that enables a court of equity to hold on to the case after ordinary redemption has been shown to be impossible, and to allow such a redemption against the wrongdoer as will prevent him from gaining by his wrong, and will give the plaintiff her due as nearly as may be. The judgment appealed from should be reversed and a new trial granted, with costs to abide event.

Parker, Ch. J., Bartlett, Martin and Werner, JJ., concur; Gray, J., not voting; Cullen, J., not sitting.

Judgment reversed, etc.3

3 The New York Code of Civ. Proc. (1890), § 379, expressly limited a suit to redeem. In most states, however, there is no statute expressly touching such suit. Under these circumstances, the courts have in most cases, applied, by analogy, that section of the statute which limits actions for the recovery of land. Gunn v. Brantley, 21 Ala. 633; Skinner v. Smith, 1 Day (Conn.) 124; Morgan v. Morgan, 10 Ga. 297; Roberts v. Littlefield, 48 Maine 61; Ayres v. Waite, 10 Cush. (Mass.) 72; Robinson v. Fife, 3 Ohio St. 551. Other courts have applied by analogy the section which limits foreclosure of the mortgage; Bradley v. Norris, 63 Minn. 156; or the omnibus section limiting actions not specifically provided for; Barr v. Vanalstine, 120 Ind. 594; Miner v. Beekman, 50 N. Y. 337 (prior to the statute above cited). Whatever period is to be applied, it is generally agreed that the statute only runs in favor of a mortgagee in possession; Morgan v. Morgan, and Bradley v. Norris, supra; Knowlton v. Walker, 13 Wis. 264; Clark v. Hanna feldt, 79 Neb. 566; and not then, if the possession is held under the mortgage and not adversely. Robinson v. Fife, and Miner v. Beekman, supra; Waldo v. Rice, 14 Wis. 286; Anding v. Davis, 38 Miss. 574; but see McNair v. Lot, 34 Mo. 285; Morgan v. Morgan, supra. There is, however, some authority for the position that, as the remedies of the mortgagor and mortgagee must be mutual, when, upon any mortgage, the suit to foreclose is barred, the suit to redeem is barred ipso jure, whether the mortgagee has had possession or not. Taylor v. McClain, 60 Cal. 651 (now reversed by Code Civ. Proc., § 346); Fitch v. Miller, 200 Ill. 170; Adams v. Holden, 111 Iowa 54; Holton v. Meighen, 15 Minn. 69 (overruled by Bradley v. Norris, supra, which exposes the fallacy in this doctrine). See also Locke v. Caldwell, 91 Ill. 417, involving a curious inversion of the same doctrine.

GIBSON v. CREHORE.

SUPREME COURT OF MASSACHUSETTS, 1827.
5 Pick. 146.

[Bill to redeem. The complainant is widow of the mortgagor and joined in the mortgage to release her dower. The defendant, after the death of the mortgagor, purchased the premises from his administrator, subject to the mortgage in question, and subsequently procured an assignment of this mortgage from the mortgagee. In a prior suit between the same parties (3 Pick. 475) it was held that the equity of redemption and mortgage had not merged in the defendant, and that he was entitled to claim the rights of the mortgagee as against this complainant. The complainant has not had a legal assignment of dower.]

WILDE, J. That the widow of a mortgagor is entitled to redeem the mortgage, is a necessary inference from the doctrine, repeatedly laid down as the law of Massachusetts, that a widow is dowable of an equity. It is a familiar principle in courts of equity, that every person interested in an estate mortgaged is entitled to redeem; and this principle is confirmed, if it requires confirmation, by St. 1798, c. 77, by which it is enacted, "that the mortgagor or vendor, or other persons lawfully claiming under them, shall have the right to redeem." If, therefore, a widow can lawfully claim under her husband, of which there can be no question, she has a right to redeem, by the express words of the statute.4

4 Compare, Rogers v. Herron, 92 I11. 583; Loomis v. Knox, 60 Conn. 343; Bacon v. Bowdoin, 22 Pick. (Mass.) 401; Kebabian v. Shinkle, 26 R. I. 505.

"Any person who may have acquired any interest in the premises, legal or equitable, by operation of law or otherwise, in privity of title with the mortgagor, may redeem, and protect such interest in the land. Story, Eq. Jur., § 1023. But it must be an interest in the land, and it must be derived in some way, mediate or immediate, from or through, or in the right of the mortgagor; so as, in effect, to constitute a part of the mortgagor's original equity of redemption. Otherwise it can not be affected by the mortgage, and needs no redemption.

"But whatever may be the title or interest claimed, it must in some way appear on the face of the bill, and the nature and extent of it must be set forth." Christiancy, J., in Smith v. Austin, 9 Mich. 465.

"It is not stated that the sheriff's sale [from which complainant seeks to redeem] was on the decree mentioned. If it was not, it may have been on a junior lien. If that were true no right of redemption existed because the appellee could sell on his foreclosure and the title conveyed would be paramount to the title secured by the appellant by his purchase. A person can only redeem when he has an interest to protect, and where, without such redemption, he would be a loser." McCabe, J., in Dawson v. Overmyer, 141 Ind. 438.

"The tender proposed to be proved appears to have been made by the plaintiff. The objection to it was that plaintiff was not in position

The objection, therefore, to the plaintiff's right to redeem is clearly unfounded, unless it can be maintained that a legal assignment of dower is an essential requisite to complete her title. It is true that before such assignment she cannot enter on any part of the land, for it cannot be ascertained in what part her dower will be assigned; nor can she maintain a writ of entry, for her legal right is inchoate. But an assignment of dower is not necessary to enable her to maintain a suit in equity for the purpose of redeeming the mortgage, because the assignment of dower does not affect her equitable right of redemption, and because she has no right to demand such assignment as against the mortgagee, before she redeems the mortgage. Nor is an assignment of dower by the heirs necessary; because, as will be shown hereafter, she could not redeem a part or parcel of the mortgaged premises, without redeeming the residue also, if required so to do by the mortgagee. The assignment of dower, therefore, is of no importance, and is not necessary to perfect her title to redeem the mortgage.

Proceeding on these principles, and considering the mortgage as a subsisting incumbrance, we come next to the question, whether the entry and possession of the defendant are sufficient in law to foreclose the mortgage.

To render an entry and a subsequent possession of three years effectual for this purpose, there must have been notice, express or implied, to the person who is to be bound by such foreclosure. The case shows that there has been no express notice; and as the defendant first entered as the purchaser of the equity, notice of the subsequent entry cannot be presumed. In the bill the plaintiff denies. all knowledge of the entry under the mortgage, and this averment is not denied by the answer; so that it seems to be an admitted fact that the plaintiff had no notice or knowledge of the defendant's entry to foreclose, and if so, then clearly she is not bound.

Considering, then, that the plaintiff's right to redeem is not extinguished by the defendant's entry and possession under the mortgage, we are to decide upon what terms and to what extent she is now entitled to redeem.

As the defendant has purchased the equity, as well as the mortgage, it would seem equitable to allow the plaintiff to redeem a third part of the mortgaged premises, by paying her equitable portion of the mortgage debt, according to the value of her right of dower as compared with the residue of the estate. But this cannot be done to make it. He was not mortgagor or grantee of the mortgagor, or in any manner at that time interested in the equity of redemption. He had tax titles, it is true, but these were not subject to the mortgage. * * * Nothing is plainer than that such a person has no right of redemption." Cooley, J., in Sinclair v. Learned, 51 Mich. 335.

without infringing the defendant's rights as assignee of the mortgage. He stands in the place of the mortgagee, and has an undoubted right to insist on his whole debt. Nor can he be compelled to be redeemed by parcel, for by thus dividing the estate, the income or value of the whole may be reduced. The rule therefore is, when several are interested in an equity of redemption, and one only is willing to redeem, he must pay the whole mortgage debt; and the others interested in the equity, who refuse to redeem, are not compellable to contribute; for it would be unreasonable to compel a party to redeem, when perhaps it might be for his benefit to suffer the mortgage to be foreclosed. The mortgagee, however, is not to be entangled with any question which may arise between the owners of the equity, in relation to contribution, but has the right to insist on an entire redemption. If, therefore, several estates are mortgaged to one mortgagee, and the mortgagor afterwards conveys the estates separately to different persons, although each owner of the separate estates may redeem, yet it can only be allowed by payment of the whole mortgage debt. And the party so redeeming will be entitled to hold over the whole estate mortgaged, until he shall be reimbursed what he has been thus compelled to pay beyond his due proportion. He is considered an assignee of the mortgage, and stands, after such redemption, in the place of the mortgagee, in relation to the other owners of the equity. So if there be tenant for life and remainderman of an equity, either may redeem, but not without paying the whole mortgage. In like manner a dowress or jointress of lands mortgaged may redeem, she paying the mortgage debt, and may hold over, if the heir refused to contribute, until she and her executor shall be repaid with interest. Palmer v. Danby, Prec. Ch. 137; Saville v. Saville, 2 Atk. 463; Banks v. Sutton, 2 P. Wms. 716; Elwys v. Thompson, 9 Mod. 396; 15 Viner, 447; Ex parte Carter, Ambl. 733; Powell on Mortg. 392, 708, 309, in notis. If the defendant had redeemed the mortgage, the plaintiff would have been let in by contributing her portion of the mortgage debt, according to the value of her life estate in one-third part of the mortgaged premises, in conformity with the rule adopted in the case of Swaine v. Perine, 5 Johns. Ch. R. 482. But as the defendant, being assignee of the mortgage, insists on the payment of the whole

5 It has usually been held that one redeeming can not insist upon the holder of the mortgage executing an assignment to him. "He will have done his whole duty by releasing his interest on receiving payment. He is not required to adjust or regard the equitable rights to contribution which may exist between parties having different interests in the equity, or to protect them by transferring his title to any one." Lamb v. Montague, 112 Mass. 352. But in a few cases the contrary has been held, with limitations. See Jones, §§ 1086, 1087. Probably the holder of the mortgage would everywhere be restrained from discharging the mortgage of record, if he threatened so to do, in prejudice of the equitable rights of the party redeeming.