Higman v. Humes

TYSON, J. The bill in this cause is filed by a junior mortgagee against the holder of a senior mortgage and seeks an accounting from him, and the foreclosure of the mortgage held by the complainant. It is so clearly a bill for redemption that it is unnecessary to discuss its nature and character. There is no offer contained in it to pay such sum as may be ascertained to be due upon the first mortgage. “A suit to redeem is a suit in equity and is subject to the rule that he who seeks equity must do equity.” — 2 Jones on Mortgages (5th ed.), § 1070 and note 11. The essential requisites of maintaining this suit are, that the mortgage debt should be due and payable, that the complainant should offer to pay the same when ascertained and fixed by the decree. Indeed without such an offer the bill is wanting in equity. — Fouche v. Swain, 80 Ala. 151; Smith v. Comer, 65 Ala. 371; 3 Pom. Eq., § 1219 and note 2; 2 Jones on Mortgages, § 1095; 17 Ency. PI. & Pr., p. 965. If complainant “is unable to foreclose his mortgage, for the reason that it is not due or for other cause, then he cannot redeem a prior mortgage against the consent of the holder of it; for in such case he cannot bring the mortgagor before the court for the purpose of completing his remedy by foreclosure and he cannot compel the mortgagee to assign to him.” — 2 Jones on Mortgages, § 1102. The bill under consideration was clearly subject to the grounds of demurrer which the chancellor sustained. Affirmed.