right to the costs of the foreclosure suit, though he might, CHAP. XXXVIII. perhaps, in strictness have objected to assign the debt (≈). The trustee of a bankrupt may redeem (a); but neither Trustee of bankrupt. an insolvent (b) nor a bankrupt, though uncertificated, can do so (c). Sect. 70 of 6 Geo. IV. c. 16, and sect. 149 of 12 & 13 Vict. c. 106, which enabled the assignees of a bankrupt to revest the legal estate by tender or payment before the day fixed, are not included in the Bankruptcy Act, 1869 (d), or in the Acts now in force. Whether a mortgagor who had become insolvent and filed his petition under 5 & 6 Vict. c. 116, and had after the final order obtained a discharge from the creditors, but had failed in obtaining a reconveyance from the official assignee, could maintain a suit for redemption of the mortgage, seemed to be doubtful, if the defendant mortgagee demurred, or the official assignee resisted the jurisdiction of the Court; as no express power was given of compelling the assignee to assign a surplus, or of taking off the file or dismissing the petition, or otherwise determining the duties of such assignee (e), especially if the surplus was not clear or in danger (ƒ); but the better opinion is, that neither an insolvent or bankrupt (g), or their creditors, can redeem (h). It was well settled under the old law that a creditor who had Judgment creditors. obtained a judgment against his debtor might redeem a mortgage of freeholds, without taking out execution (i), by virtue of his so-called general lien on the land (k); but the rule was different as to mortgaged leaseholds, in which case execution must first have been issued (7). Since the statute 27 & 28 Vict. c. 112, it is only by issuing legal or equitable execution that creditors can obtain any charge or lien upon the land of their (z) Smith v. Green, 1 Coll. 555; Pearce v. Morris, L. R. 5 Ch. A. 230. (a) Francklyn v. Fern, Barn. Ch. R. 30. (b) Kay v. Fosbroke, 8 Sim. 28. But see Latour v. Holcombe, 8 Sim. 76 (qu.). (c) Tarleton v. Hornby, 1 Y. & C. Ex. 172; Motion v. Moojen, L. R. 14 Eq. 202. (d) Dunn v. Massey, 6 A. & E. 479. Preston v. Wilson, 5 Ha. 185; Wearing v. Ellis, 6 De G. M. & G. 596; Saxton v. Davis, 18 Ves. 72. (f) Dyson v. Hornby, 7 De G. M. & G. 1. (g) Rochfort v. Battersby, 2 H. L. C. 408; Re Leadbitter, 10 Ch. D. 388, C. A. (h) Heath v. Chadwick, 2 Ph. 649; Davis v. Snell, 2 De G. F. & J. 468. (i) Sharpe v. Earl of Scarborough, 4 Ves. 538; Tunstall v. Trappes, 3 Sim. 286, 300. (k) Stonehewer v. Thompson, 2 Atk. 440. (1) Shirley v. Watts, 3 Atk. 200; Angell v. Draper, 1 Vern. 399. HAP. XXXVIII. debtor (m). It is clear that creditors who have actually issued execution are entitled to institute proceedings for redemption (n); so also a creditor who has taken out a sequestration (o); and in one case it has been held that a judgment creditor, who had filed a bill to redeem against the debtor and his mortgagees without having first obtained execution, was entitled to the ordinary redemption decree (p). It would thus seem that any creditor, who has entered up his judgment without issuing a writ of elegit, being now in a position to obtain equitable execution, is entitled himself to bring an action for redemption of the mortgaged property. Creditors in bankruptcy, &c. Plaintiff in creditor's suit. Crown, &c. Lord of manor. Surety. If a judgment stand between two mortgages, it was held by Lord Thurlow that the judgment creditor, in a suit to redeem the first mortgage, need not make the subsequent mortgagee a party to his action in order to postpone him (q). But as the second mortgagee must be interested in the account, it is somewhat difficult to understand the grounds on which his lordship arrived at this decision. If a trustee in bankruptcy (r), or a trustee of a deed of arrangement for the benefit of creditors (s), refuse to enforce their right of redemption, the creditors may bring their action for relief. The plaintiff in a creditor's suit may, after a decree for sale of the real estate, bring a supplementary action for redemption against the mortgagee in order to carry out the sale (t). The Crown, or its grantee, might have redeemed on forfeiture of the equity of redemption (u), and now the administrators or interim curators of the estate of the felon, under 33 & 34 Vict. c. 23, may do so (x). So the lord, claiming the reversion by escheat, may redeem a mortgage term (y). A surety to a mortgage is entitled to redeem (≈) by reason of his right to pay off the debt, and to avail himself of all the (m) 27 & 28 Vict. c. 112, s. 1. (0) Fawcet v. Fothergill, Dick. 19. (q) Shepherd v. Gwinnet, 3 Swanst. 151, (r) Franklyn v. Fern, Barn. Ch. R. 30. (s) Troughton v. Binkes, 6 Ves. 573. (t) Christian v. Field, 2 Ha. 177. (u) Att.-Gen. v. Crofts, 4 Bro. P. C. 136; Lovell's Case, Salk. 85. (x) See ante, p. 643. (y) Downe v. Morris, 3 Ha. 394. See Beale v. Symonds, 16 Beav. 406. (z) Green v. Wynn, L. R. 4 Ch. A. remedies of the creditor (a); but a surety for part of a debt is CHAP. XXXVIII. not entitled to the benefit of a mortgage given by the debtor to the creditor at a different time for another part of the same debt, and, therefore, is not entitled to redeem such mortgage (b). Where a married woman mortgages her separate estate with Husband and the concurrence of her husband, the presumption is that the wife. money was raised for his benefit, and, in the absence of rebutting evidence, the wife is regarded as a surety, with all rights incident to that relation, and will, therefore, be entitled to redeem (c). If the wife's leasehold be mortgaged by the husband and wife, and the husband covenants to pay the debt, and afterwards reduces the amount of the debt out of his money, and dies, leaving his wife the survivor, the wife may, it seems, redeem, on placing the husband's estate in the situation of the mortgagee to the amount of the sum paid by the husband (d). If a term of years be purchased by a husband, in the joint names of the husband and wife, and the husband mortgage it, and afterwards die in the lifetime of his wife, the creditors of the husband may, it seems, redeem (e). of husband. A creditor was permitted to redeem whose debt was considered Wife creditor to be released by operation of law, and to subsist in equity only; as in the case (ƒ) of a bond given by a husband before marriage to his wife for a sum of money payable after his decease. lunatic. A committee of a lunatic may redeem out of the rents and Committee of profits for the benefit of the lunatic's estate (g); and it is said that he may do so out of the personal estate of the lunatic without the leave of the Court, if threatened with foreclosure (h); but in such a case the proper course is to obtain an order of the Court (i). a And a guardian of an infant may apply the rents of Guardian. descended estate in discharge of the principal of the mortgage, because the mortgage is a subsisting charge on the estate (k). (a) See as to sureties to mortgages generally, ante, Ch. IX., pp. 78 et seq. (b) Wade v. Coope, 2 Sim. 155. Earl of Kinnoul v. Money, 3 Swanst. 202, n.; Hudson v. Carmichael, Kay, 613. (d) Pitt v. Pitt, T. & R. 180. Sed quare, if the husband's representatives would not have been absolutely entitled to the equity of redemption if it had been reserved to him, the estate being a chattel real, of which he could have absolutely disposed without his (e) Watts v. Thomas, 2 P. Wms. (f) Acton v. Peirce, 2 Vern. 480. CHAP. XXXVIII. Heir. Dowress and tenant by curtesy. Devisee. Personal representatives. An equity of redemption will, in its descent, devolve in like manner as the legal estate, that is, to the common law, or customary heir, according to the circumstances of the case; to such heir the right of redemption of course belongs; and upon an action by an heir-at-law to redeem, a primâ facie title is sufficient (1). So, also, if the land be gavelkind or boroughEnglish, the heir special will be entitled to redeem (m). A dowress (n) may redeem. So, also, may a tenant by curtesy (0). The hæres factus, or devisee of the equity of redemption, is entitled to redeem, and he need not make the heir-at-law of the mortgagor a party, unless he claims to have the will established (p). And a devisee has a right to redeem against a purchaser from a pretended heir, with notice of the pendency of a suit to establish the will (9). If the subject-matter of the mortgage is leasehold or other personalty, the legal personal representatives of a deceased mortgagor may redeem. But if the mortgage is of realty in fee, the personal representatives cannot redeem in the absence of the heirat-law or customary heir or devisee (r). Even though the mortgage is for a term created out of the inheritance, the legal personal representatives cannot redeem; so also if the equity of redemption escheats to the Crown (s). So, where freeholds were mortgaged for a term, and the owner of the equity of redemption, by his will, directed the mortgage to be paid off and the term to be assigned to one person, and devised the fee to another person, it was held that the right to redeem passed to the devisee of the fee (t). The persons who are to avail themselves of the equity of redemption must be the same as those who, during the time fixed in the mortgage deed, could have redeemed at law, or their representatives or assigns; for otherwise equity would alter the bargain, and, therefore, where a term of years is mortgaged by an executor or administrator, the equity of redemption passes to the representative of such executor or (1) Pym v. Bowerman, 3 Swanst. 241, n.; Lloyd v. Wait, 1 Ph. 61. (m) Fawcett v. Lowther, 2 Ves. Sen. 300, 304. (n) Palmes v. Danby, Prec. Ch. 137. (0) Jones v. Meredith, Bunb. 346. administrator, though he be not the representative of the CHAP. XXXVIII. deceased, and does not pass to the administrator de bonis non of the deceased (u). Legatees whose legacies are charged on the mortgaged land Legatees. may apparently redeem (); but it seems that they can only sue through their trustee or executor unless he refuses to do so (y). life. Where property subject to a mortgage is settled to uses, the Tenant for tenant for life is entitled to redeem, and to have the legal estate conveyed to himself, but must hold the equity of redemption subject to the limitations of the settlement (z). So, also, an equitable tenant for life may redeem (a). life estate. The mortgagee of tenant for life may redeem a mortgage in Mortgagee of fee; but if the tenant for life die before decree, his mortgagee will have to pay costs, and his action will be dismissed (b). A tenant in tail (c), or other remainderman or reversioner (d), Remaindermay redeem. But a remainderman cannot, during the continuance of a particular estate, redeem a mortgage of the fee where the mortgagee of the fee is also mortgagee of the particular estate, except by consent of the mortgagee (e). A jointress may redeem (ƒ). ii.-Limitation of Equity of Redemption to new Uses.-A very important class of cases is next to be considered, viz., those in which the question has been, whether it is intended by the parties making the mortgage that the equity of redemption shall be limited in a manner different from the uses subsisting in the estate prior to the mortgage, or shall result to the same uses. man. Jointress. As a general rule, it may be laid down that where the equity General preof redemption is limited to persons other than the owners, the sumption against right is nevertheless in the owners (g); but the mere frame of change of the deed may so clearly show an intention to act upon the limi- ownership. tation of the equity of redemption that the Court would be bound to give effect to it (h); but a clear intention must be (u) Butler v. Bernard, Freem. Ch. 139; Skeffington v. Whitehurst, 9 Cl. & F. 219. And see Greenwood v. Rothwell, 7 Beav. 279. (x) Batchelor v. Middleton, 6 Hare, 75, 78. (y) See Troughton v. Binks, 6 Ves. 573. (z) Lewis v. Nangle, Amb. 150; 1 Cox, 240; Earl of Kinnoul v. Money, 3 Swanst. 202, n., at p. 219, n.; Wicks v. Scrivens, 1 J. & H. 215; Pearce v. Morris, L. R. 5 Ch. A. 227. (a) Haymer v. Haymer, 2 Vent. 343. (f) Howard v. Harris, 2 Ch. Ca. (h) Sug. H. L. 174. See Rowell v. Whalley, 1 Rep. in Ch. 116. |