each recognizor is bound, and the nature of his undertaking is shown, and the judgment charges each to the extent of his liability and no further, there is no error. Smith v. The State, 7 Port. 492. But where the principal recognizes in a certain sum, and the surety in a like sum, a joint judgment against both cannot be rendered for double that sum. Dean v. The State, 2 S. & M. 200. And in a scire facias on a recognizance by several, bound each for several distinct sums, the cause may be continued as to part, and judgment rendered against the others. Otherwise, in debt. Fowler v. The Commonwealth, 4 Monr. 128. In the absence of any order of court discharging a recognizance, it is sufficient to authorize an entry of judgment of forfeiture, that the record should show, that the principal in the recognizance was called, and made default. Alley v. The People, 1 Gilm. 109. But it should show that the party charged with an offense was required to answer the charge specified in the recognizance. Farr v. The State, 6 Ala. 794. If the charge which the accused is called to answer varies from that described in the condition of the recognizance, no sufficient breach is shown, and the judgment nisi is erroneous. Howie v. The State, 1 Ala. 113.

CHAPTER CXV.

REDEMPTION OF REAL ESTATE.

ARTICLE I.

ACTIONS TO REDEEM MORTGAGED LANDS.

Section 1. In general. An equity of redemption is a right which the mortgagor of an estate has of redeeming it, after it has been forfeited at law by the non-payment at the time appointed of the money secured by the mortgage to be paid by paying the amount of the debt, interest and costs. 1 Bouv. Law Dict. 536. The phrase equity of redemption is indiscriminately, though often incorrectly, applied to the right of the mortgagor to regain his estate, both before and after breach of condition. In North Carolina, by statute, the former is called a legal right of redemption, and the latter the equity of redemption, thereby keeping a just distinction between these estates. 1 N. C. Rev. Stat. 266. See The State v. Laval, 4 McCord (S. C.), 340. The interest is recognized at law, for many purposes, as a subsisting estate, although the mortgagor, in order to enforce his right, is obliged to resort to an equitable proceeding, administered generally in courts of equity, but in some States by courts of law (Grider v. McClay, 11 Serg. & Rawle [Penn.], 223); or in some States he may pay the debt and have an action at law. Jackson v. Bowers, 18 Johns. 110; Robbins v. Abrahams, 1 Halst. (N. J.) Ch. 466; Morgan's Lessee v. Davis, 2 Harr. & McH. (Md.) 9; 1 Bouv. Law Dict. 536. The interest of a purchaser of land, when the purchase-money is not paid, and the title is retained as a surety for its payment, is treated as an equity of redemption. Shoffner v. Fogleman, 1 Wins. (N. C.) No. 2 (Eq.) 12.

The equity of redemption is an estate which the mortgagor may devise or grant (1 Washb. Real Prop. 544; Endsworth v. Griffiths, 15 Vin. Abr. 468); and it is governed by the same rules of devolution or descent as any other estate in lands. Chamberlain v. Thompson, 10 Conn. 243; Wright v. Rose, 2 Sim. & S. Ch. 323; Bourne v. Bourne, 2 Hare's Ch. 35. He may mortgage it. Bigelow v. Willson, 1 Pick. 485. But he cannot release or surrender it except by writing, it being a right in real estate. Clark v. Condit, 3 C. E. Green (N. J.), 358.

It is liable for his debts. White v. Whitney, 3 Metc. (Mass.) 81; Fox v. Harding, 21 Me. 104; Freeby v. Tupper, 15 Ohio, 467. But it cannot be sold on an execution, upon a judgment recovered for the mortgage debt. Palmer v. Foote, 7 Paige, 437; Shoffner v. Fogleman, 1 Wins. (N. C.) No. 2 (Eq.) 12.

The right of redemption is favored in law, and where it is admitted in the pleadings, courts will not scan very closely the transaction out of which it is claimed to arise, for the purpose of defeating that right. Briggs v. Seymour, 17 Wis. 255. Equity is ready to receive the excuses of the mortgagor, not only to allow him time to procure the money before foreclosure, but also to open the foreclosure, where there was any good reason why it was not resisted. Golden v. Fowler, 26 Ga. 451. No decree can take away the statute right of redemption. D' Wolf v. Haydn, 24 Ill. 525. And the mortgagee cannot, by purchasing a mortgage on other premises of the mortgagor, compel him to redeem both, if either. Cleveland v. Clark, Brayt. 166.

upon

If a mortgagee, having entered for condition broken, refuse to relinquish the possession of the estate mortgaged, after payment, or tender of payment, of the money due on the mortgage, the only remedy for the mortgagor, or for him who has the right of redeeming, in order to regain the estate, is by a bill in equity. Parsons v. Welles, 17 Mass. 419; Pratt v. Skolfield, 45 Me. 386. As is also the case where one for any reason is entitled to redemption. Pearce v. Savage, 45 Me. 90. If the mortgagee have entered and dispossessed the mortgagor before condition broken, and continue in possession afterward, the mortgagor may elect to consider him in for condition broken, and performance, or tender of performance, maintain a bill in equity to redeem. Pomeroy v. Winship, 12 Mass. 514. And so where, after condition broken, the mortgagee recovers judgment for possession in an action not brought for the purpose of foreclosure. Green v. Kemp, 13 Mass. 515. If the mortgagor will not voluntarily redeem the land mortgaged, and there be no bond, covenant, or other contract for payment of the mortgage debt, he cannot be compelled to pay otherwise than by the land pledged. Reading of Judge TROWBRIDGE, 8 Mass. 551. But, if there be such contract, the mortgagee, after entry for condition broken, may recover the difference between the value of the land and the amount of principal and interest due on the contract. Amory v. Fairbanks, 3 Mass. 562. In such case the mortgagor will be allowed, in addition to the value of the lands when the mortgagee took possession, all the profits received by him after possession. Newall v. Wright, 3 Mass. 138, 154. If, in an action for possession, it appear that the tenants have the right of redeeming but a part of the premi

ses demanded, absolute judgment will be entered for the whole; and, for the part which they have a right to redeem, their remedy must be by a bill in equity. Partridge v. Gordon, 15 Mass. 486. The bill to redeem may properly be framed with a double aspect, so that the complainant may avail himself of a tender, if his proof thereof shall be sufficient, or, failing in that, pray an account and be permitted to pay the amount found due. Regularly, however, the prayer should be in the alternative. Gooding v. Riley, 50 N. H. 400.

A mortgage conditioned to pay a sum of money, or support the mortgagees during their lives, may be redeemed after breach, although the mortgagor has elected to support them, and has assigned his equity, if the mortgagees assented to the assignment, but not otherwise. Bryant v. Erskine, 55 Me. 153. A mortgagor's whole interest is gone, if he does not, within a limited time from the sale, generally fixed by statute, redeem the equity of redemption sold on execution. He has no right afterward to redeem the land mortgaged, although the purchaser of the equity should not redeem. Ingersoll v. Sawyer, 2 Pick. 276. After the right of the owner of the equity of redemption to redeem has been barred by the running of the statute of limitations, it cannot be revived by a tender of the amount of the mortgage and demand of possession by him. Miner v. Beekman, 11 Abb. (N. Y.) Pr. (N. S.) 147; S. C., 42 How. 33. But, under certain circumstances, the neglect of a mortgagor to redeem his property within the time specified will not work a forfeiture of his rights. McNees v. Swaney, 50 Mo. 388. As where a contract is made, extending the time of redemption of land sold beyond the time limited by statute, the contract will be enforced, and a redemption allowed within the time designated in it. Davis v. Dresback, 81 Ill. 393. Generally an action to redeem from a mortgage is barred in the same time an action to foreclose would be, and cannot, in certain States, be maintained after ten years from the date when the right of action accrued. Crawford v. Taylor, 42 Iowa, 260; compare Munn v. Burges, 70 Ill. 604. Even without a tender or demand of account a bill to redeem a mortgage can be maintained; the special provisions of a statute allowing a remedy by petition do not supersede the general remedy in equity. Hall v. Hall v. Hall, 46 N. H. 240.

A first mortgagee, on purchasing at his foreclosure sale, may require a second mortgagee, who by oversight was not made a party to the suit, to redeem within a reasonable time or to be foreclosed; and this, not only for the amount of principal and interest due, but also for the purchase-money paid by him over and above such amount, in liquidation of claims prior to the second mortgage, to the rights of the holders of which claims the purchaser had been thereby subrogated. Parker v.

Child, 25 N. J. Eq. 41. Part payments made after foreclosure by advertisement, and received with the clear understanding that the redemption is to be completed by paying the whole sum necessary for that purpose, within the year allowed by the statute, are in affirmance and not in avoidance of the sale, and their acceptance does not operate as a waiver of the foreclosure. Cameron v. Adams, 31 Mich. 426. But where a mortgage has been foreclosed by advertisement and the premises bid in by the mortgagee, but, before the redemption ran out, an arrangement has been made between him and the mortgagor to extend the time, and payments have been made and accepted on the strength of it, the foreclosure sale and deed are thereby superseded and rendered abortive. Dodge v. Brewer, 31 Mich. 227. The mere assumption of a mortgagee, evidenced by his giving a deed, that he has title in fee, cannot bar the equity of redemption; nor can an occasional occupation under such deed, or any occupation short of a continuous and notorious one, adverse to the right to redeem, give it that effect. Humphrey v. Hurd, 29 Mich. 44. A purchaser of mortgaged premises from a mortgagee, pending a suit to redeem, will hold subject to the equities of the parties seeking the redemption. Roberts v. Fleming, 53 Ill. 196. The New Jersey statute authorizing courts of law to enforce equities of redemption, in certain cases, by compelling the mortgagee to reconvey the mortgaged premises, upon payment into court of the money secured by the mortgage, is not applicable to any case in which the mortgagor is himself the actor. Shields v. Lozear, 34 N. J. Law, 496; S. C., 3 Am. Rep. 256.

Where a redemption of land, sold under a decree of foreclosure, was made after the death of the debtor by a judgment creditor, whose execution was void, and who had no right to levy and sell under the same, and the redemption-money was accepted and acted upon as valid by the prior creditor, it was held that the acceptance operated to extinguish the prior sale, the same as if the redemption had been properly made, and re-invested the heir at law of the deceased debtor with the title to the land, and that they were not precluded from contesting the title claimed by such redeeming creditor by sale under his execution. Clingman v. Hopkie, 78 Ill. 152.

§ 2. Of the right to redeem. The right to redeem and the right to foreclose a mortgage are reciprocal and commensurable. King v. Meighen, 20 Minn. 264; Cunningham v. Hawkins, 24 Cal. 403. But see Scwretzer v. Mayhew, 31 Beav. 37. A mortgagor has the right, at any time after condition broken and before foreclosure, in accordance with the effect of the condition, to redeem by refunding the money due to the mortgagee. Heimberger v. Boyd, 18 Ind. 420. And if a