Way v. Mullett

Gardner, J. By the'Pub. Sts. c. 181, § 27, “The person entitled to redeem,” when the condition of a mortgage has been broken, “may at any time before the expiration of the three years limited for the redemption, and either before or after an entry for breach of the condition, bring a suit for redemption without a previous tender, and may in such suit offer to pay such sum as shall be found due from him.” The St. of 1798, c. 77, which required a payment or tender of payment of the sum due before bringing a bill to redeem, was held by this court, in Tirrell v. Merrill, 17 Mass. 117, to require the mortgagor to make the best calculation he could, and to tender at his peril. The statute gave him no remedy if he failed to tender the exact amount. The injustice of this provision was so apparent, that the court expressed the hope that the case would excite the attention of the Legislature. The St. of 1821, c. 85, was soon after passed. This provided that, when a mortgagor having a right to redeem shall bring his bill within three years after the mortgagee shall have obtained possession, “ and shall in his bill offer to pay such sum as shall be found justly and equitably due, .... such offer shall have the like force and effect as a tender of payment or performance made before the commencement of the suit,.... provided, the mortgagee, or those claiming under him, shall, on request, have refused or neglected truly to state his or their account of the sum due on said mortgage, before the commencement of such suit.” This proviso was repealed by the St. of 1883, e. 201, § 1; and an offer in a bill to redeem to pay such sum as should be found justly and equitably due, was thus left equivalent to a previous tender, without any qualification or limitation. The provisions of the St. of 1821, as modified by the St. of 1833, were, in substance, reenacted in the Rev. Sts. c. 107, § 18, in the Gen. Sts. c. 140, § 19, and in the Pub. Sts. c. 181, § 27. The provisions of this section apply to power of sale mortgages of real estate. By the terms of such a mortgage, upon default in the performance of its conditions, the right of the [52] mortgagee or his assigns to sell attaches at once, and, as it is a power coupled with an interest, it cannot be revoked by the mortgagor. Cranston v. Crane, 97 Mass. 459. Hall v. Bliss, 118 Mass. 554. After breach of the condition, the mortgagor has no remedy at law. His right of redemption is gone, subject to the equitable right, which he may pursue, prior to the sale under the power. If the sale is complete, and the conveyance made of the estate, in accordance with the terms of the mortgage, the mortgagor loses his equitable right of redemption, and an unconditional estate passes to the purchaser. But, until the power is executed, the relation of the mortgagor and mortgagee remains independent of the power to sell. It is a reserved power, to be put in operation upon breach of the condition, whenever the mortgagee may determine. He may decide not to execute the power, but may choose to take possession for foreclosure, in the manner pointed out by the statute, in those cases where the mortgage contains no power of sale, and to wait three years for the foreclosure to be completed; Pub. Sts. c. 181, § 1; or he may pursue some other remedy pointed out by the statute. The power in the mortgage to sell, unexecuted, leaves the estate as it would be if no such power existed. Shaw v. Norfolk County Railroad, 5 Gray, 162, 182. “ The right of redemption, which is the true indicium of a mortgage, remains in the mortgagor and his representatives, until it shall be foreclosed by entry or judgment, with possession as prescribed by law, or until, availing himself of his power, the mortgagee shall have made a conveyance pursuant to it to some one who shall intend to purchase an irredeemable estate.” Eaton v. Whiting, 3 Pick. 484, 492. The Public Statutes have enacted, in substance, that the sale of mortgaged premises made pursuant to a power of sale contained in the mortgage shall operate as a foreclosure. “When the condition of a mortgage has been broken, the mortgagor, or any person lawfully claiming or holding under him, may redeem the mortgaged premises, unless the mortgagee, or some person lawfully holding or claiming under him, has obtained possession of such premises for a breach of the condition, and has continued that possession for three years, or unless a sale of such premises [53] has been made pursuant to a power of sale contained in the mortgage.” Pub. Sts. e. 181, § 21. The last clause of this section, relating to a sale, is here enacted for the first time. In Eaton v. Whiting, ubi supra, it was intimated that the foreclosure was not complete until a conveyance was made to the purchaser at the sale. In Cranston v. Crane, ubi supra, the opinion of the court stated that the foreclosure was made complete by the sale. The last clause of § 21 was evidently enacted for the purpose of fixing the time when a foreclosure is complete, under the execution of a power of sale in a mortgage. The section treats of those who may redeem, and when they may redeem, and of nothing more. It does not change the law which was in force when this provision was enacted, except to determine when the mortgagor may redeem the mortgaged premises. By its terms, until a sale of the premises is completed, the mortgagor, or any person claiming under him, may redeem the same. It is apparent from the Pub. Sts. c. 181, §§ 21 cf seq., that a mortgagor may resort to two courses-for redemption of the mortgaged premises. 1. He may pay or tender the amount due to the mortgagee. If the tender is not accepted, it will not prevent the foreclosure, unless a suit is begun within a year after the tender is made. § 25. 2. He may bring a suit without a previous tender. §§ 27, 29. We do not think that the sections of the statute relating to tender contain the only resource for the redemption of a power of sale mortgage. Section 24 provides that “ the tender may be made at any time before the expiration of the three years limited for redemption, and either before or after an entry for breach of the condition; ” and if the mortgagor does not accept the tender and discharge the mortgage, the mortgagor may recover the premises by a suit in equity for redemption. The language of this section is similar to that of § 27, already quoted, relating to bringing suit without a tender. It contains no reference to mortgages with power of sale, and no allusion to the last clause of § 21. In Cranston v. Crane, ubi supra, it was assumed that § 16 of the Gen. S.ts. c. 140, which is the same as § 24 of the Pub. Sts. a. 181, applied to such mortgages. We think that § 27 applies with equal force as § 24 to mortgages with power of sale. In § 24, “ the tender may be made [54] at any time before tbe expiration of the three years limited for redemption.” In § 27, “ the person entitled to redeem may at any time before the expiration of the three years limited for redemption .... bring a suit for redemption without a previous tender, and may in such suit offer to pay.” If one section is applicable to mortgages with power of sale, it is difficult to see why the other does not apply. The several sections under the title “ Redemption” contain the only statutory provisions for the redemption of lands from power of sale mortgages. The same provisions are applicable to mortgages with and without such power. The foreclosure in one case is complete upon the sale under the power for breach of condition; in the other, upon the expiration of the three years limited for redemption. Before the foreclosure in either case is complete, the mortgagor may resort to either of the methods provided by the statute under the title Redemption. Pub. Sts. c. 181, §§ 21 £ seq. In the case at bar, the plaintiff brought his suit in equity to redeem before the sale of the premises had been made pursuant to the power'of sale contained in the mortgage. In his bill, he alleged that he was willing and ready to pay any and all sums of money that might be due under either of the mortgages. Even if the statute were mandatory in requiring him to offer to pay such sum as shall be found due, the plaintiff has complied with its provisions. The majority of the court are of opinion, that the plaintiff has brought himself within the terms of the statute, and that he is entitled to redeem the estate upon paying what, is due the defendant. Under the Pub. Sts. c. 181, § 28, the court must determine what sums are due on the mortgages. To regain his legal title and possession, the plaintiff must pay what is actually due up to the time of redemption. Adams v. Brown, 7 Cush. 220. It is within the discretion of the court to award costs to either party. Pub. Sts. c. 181, § 29. Decree accordingly.