Harrington v. Donaldson

Redeield, Ch. J. This is an action of ejectment to recover possession of mortgaged premises. The deed was in form a technical mortgage as to the notes described in it, which we suppose to have been given for the price of the land or a portion of it. But the controversy in the case is in regard to the special terms of the condition whereby the mortgagor binds himself to put a good cellar under the frame for a house (his own house), and finish off the same in good style and paint it white within one year, and 538 that all additions to the house and out buildings upon the premises should be well built, well underpinned and well painted within six months after they were erected. The jury found specially a breach of this condition in regard to the cellar and finishing the frame, and painting it within one year. This will of course, by the terms of the deed, create a forfeiture of the estate. The inquiry is, whether it is of that class of forfeitures which a court of law can restore upon payment of compensation. The terms of the statute allowing redemption at law are very specific; “ when it shall appear that the plaintiff claims title to the premises by .virtue of any deed of mortgage, or bargain and sale with defeasance.” This must import that the plaintiff’s title to the premises is by virtue of a technical mortgage, or a deed with defeasance. The legal effect of the two forms of conveyance is the same probably, and the right to redeem at law can not be extended by construction. The only question here is, whether this special condition can be said to be in the nature of a mortgage. It is certain that it is not what is understood in popular language by a mortgage, and equally certain that it comes within the more extended definition of a technical mortgage, as “a conditional conveyance of land designed as security for the payment of money, or performance of some other ad;” 1 Hill. on Mort. 2, and cases cited. But taking the whole statute into account, it would seem that redemption at law was not meant to be extended beyond those cases where the condition of the mortgage, or the defeasance of the deed consisted in the payment of a debt, or something in the nature of a debt, the amount of which is capable of definite estimation. For the section following provides that the court shall “ ascertain the sum equitably due,” and decree the vacating of the judgment upon the “ payment of the amount then due.” These terms, payment and due, have no appropriate reference to the performance of a condition of the character of the one in this deed. This is not the performance of a duty to the plaintiff, nor one the failure to perform which may be compensated by a money equivalent. It seems more in the nature of a condition for the mutual advantage of the plaintiff and the defendant, and of the neighborhood generally. And it would therefore seem that it could not be compensated by a money equivalent to 539 the parties interested, but must be done by a specific performance, although after the time. "We think, therefore, that the defendants’ only remedy is in a court of equity, to be let in to redeem upon specific performance, in a time limited by that court, and in default of such performance to the acceptance of the master or officer of the court appointed for that purpose, to be forever foreclosed of all equity. The judgment of the county court then, in ascertaining the amount due in equity, is reversed, and judgment rendered upon the first verdict for the plaintiff, for the seizin and possession of the premises and costs.