the action at law will open the foreclosure in equity, and let in the equity of redemption, is an unsettled question. The weight of English authority would seem to be, that it opens the foreclosure, unless the estate has, in the mean time, been sold by the mortgagee; and then it is admitted, that the power of conveyance is gone, for it would be inequitable to open the foreclosure against the purchaser. But in Hatch v. White, the reasoning of the the court was against the conclusion, that the suit at law opened the foreclosure in any case; and this was also the decision in Lansing v. Goclet.

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The general rule is, that the mortgagee may exercise all his rights at the same time, and pursue his remedy in equity upon the mortgage, and his remedy at law upon the bond or covenant accompanying it, concurrently. There are *difficulties attending the sale *184

2 Gallis. Rep. 152.

1 9 Cowen's Rep. 346. In Lovell v. Leland, 3 Vermont Rep. 581, it was deemed to be reasonable, though not absolutely decided, that if the mortgagée, after foreclosure, sues at law to recover the difference between the value of the estate and the sum due, the foreclosure should be opened, and that the mortgagor, on being sued, might file his bill to redeem, on paying the full amount of debt and costs, and that the mortgagee, when he brings the suit, should have it in his power to reconvey the estate. By the Mass. Revised Statutes of 1835, part 3, tit. 3, c. 107, if the mortgagee, after foreclosure, sues for the balance of his debt, after deducting the ascertained value of the land, a recovery in such suit will open the foreclosure, and allow the mortgagor to file his bill within a year thereafter to redeem.

Booth v. Booth, 2 Atk. 343. Burnell v. Martin, Doug. Rep. 417. Schoole v. Sall, 1 Sch. & Lef. 176. Dunkley v. Van Buren, 3 Johns. Ch. Rep. 330. Hatfield v. Kennedy, 1 Bay's Rep. 501. Hughes v. Edwards, 9 Wheat. Rep. 489. Cullum v. Emanuel, 1 Ala. Rep. N. S. 23. If the mortgagee proceeds to judgment and execution at law upon his bond, and sells the land mortgaged to secure the bond debt, he sells only the equity of redemption, and he may afterwards maintain ejectment against the purchaser of the premises, in order to enforce payment of the balance. Jackson v. Hull, 10 Johns. Rep. 481. M'Call v. Lenox, 9 Serg. & Rawle, 307, 308. 314. This supposes the case, that the purchaser, at the sheriff's sale, knew of the existing mortgage, and purchased subject to it. But the rule is not uniform on the subject. In Pennsylvania it has been frequently held that the purchaser will hold the land discharged of the lien of the mortgage. M'Graw v. VOL. IV.

15

of the equity of redemption by the mortgagee, by execution at law, and it is accompanied with danger to the rights of the mortgagor; and these difficulties were suggested in the case of Tice v. Annin, and that the proper remedy was to prohibit the mortgagee from selling at law the equity of redemption.b

M‘Lanahan, 1 Penn. Rep. 44. Pierce v. Potter, 7 Watts, 475. Berger v. Hiester, 6 Wharton, 210.

▪ 2 Johns. Ch. Rep. 125. In this case it was suggested that if the mortgagee should elect to proceed against his debtor at law, after the equity of redemption had been sold under a fi. fa., and attempt to recover his debt out of other property of the mortgagor, equity would either stay such proceeding, or compel him, upon payment of his debt, to assign over his debt and security to his debtor, to enable the latter to indemnify himself out of the mortgaged premises in the possession of the purchaser. In Cullum v. Emanuel, 1 Ala. N. S. 23, it was held that ordinarily the sale of the equity of redemption by the mortgagee does not extinguish the mortgage, and the purchaser acquires only the right to complete his purchase by the payment of the mortgage debt. In Cassilly v. Rhodes, 12 Ohio Rep. 88, it was held that when mortgaged premises are sold under a decree of foreclosure, the emblements of a lessee under the mortgagor did not pass to the purchaser. This decision proceeded on the system of appraisements founded on judicial sale in Ohio. Under the general law, both in England and in this country, the mortgagor is not entitled to emblements as against the mortgagee or purchaser on foreclosure.

The New-York Revised Statutes, vol. ii. 368, sec. 31, 32, have carried the suggestion into effect, and prohibited the sale at law of the mortgagor's equity by the mortgagee, on a judgment for the debt secured by the mortgage. See also Delaplaine v. Hitchcock, 6 Hill N. Y. Rep. 1. 4, S. P. In Massachusetts, North Carolina, and Kentucky, likewise, similar embarrassments have been felt, and the mortgagee cannot, by execution at law, sell the equity of redemption in discharge of a debt secured by the mortgage. Atkins v. Sawyer, 1 Pick. Rep. 351. Camp v. Coxe, 1 Dev. & Bat. 52. Goring v. Shreve, 7 Dana's Rep. 64. The New-York Revised Statutes have, in other respects, materially changed the established practice on this subject. It is now declared, that while a bill of foreclosure is pending in chancery, no proceedings shall be had at law for the recovery of the debt, without the authority of the court of chancery; and, on the other hand, if a judgment has been obtained at law for the mortgage debt, or any part of it, no proceedings are to be had in chancery, unless an execution has been returned unsatisfied, in whole or in part, and it be stated in the return that the defendant had no property to satisfy it except the mortgaged premises. New York Revised Statutes, vol. ii. 191, sec. 153. 156. Williamson v. Champlin, 8 Paige Rep. 70. Shufelt v. Shufelt, 9 ibid. 137. The statute goes on and declares that

(3.) Parties to a bill of foreclosure.

When the mortgagee proceeds by bill to foreclose, he must make all encumbrancers, existing at the filing of the bill, (and which of course includes the junior, as well as the prior encumbrancers,) parties, in order to prevent a multiplicity of suits, and that the proceeds of the mortgaged estate may be duly distributed; and the encumbrancers who are not parties will not be bound *185 by the decree. The reason of the rule requiring all encumbrancers, subsequent as well as prior to the plaintiff, to be made parties, is to give security and stability to the purchaser's title; for he takes a title only as against the parties to the suit; and it cannot, and ought not to be set up against the subsisting equity of those encumbrancers who are not parties. If a surplus remains

if the mortgaged premises should prove insufficient to satisfy the debt, the court of chancery has power to direct the payment by the mortgagor of the unsatisfied balance, and to enforce it by execution against the other property, or the person of the debtor. Ibid. sec. 152. As the action of ejectment upon a mortgage is abolished, (ibid. 312, sec. 57,) the jurisdiction at law over the debt, as well as over the pledge, would appear by these provisions to be essentially taken away and transferred to chancery. In Mississippi, where there is no such statute, the remedy of the mortgagee for his unsatisfied balance of the debt after a foreclosure and sale under his mortgage, is at law. Stark v. Mercer, 3 Howard, 377.

Godfrey v. Chadwell, 2 Vern. 601. Morret v. Westerne, ibid. 663. Hobart v. Abbott, 2 P.Wms. 643. Fell v. Brown, 2 Bro. 276. Bishop of Winchester v. Beaver, 3 Ves. 314. Sherman v. Cox, 3 Ch. Rep. 46. Haines v. Beach, 3 Johns. Ch. Rep. 459. Lyon v. Sandford, 5 Conn. Rep. 544. Renwick v. Macomb, 1 Hopkins, 277. The English practice is to settle by decree the order of payment according to priorities; and the decree is, in detail, that the second encumbrancer shall redeem the first, the third the second, and so on. See Mondey v. Mondey, 1Ves. & Beame, 223, and 3 Merrivale, 216, note.

The N. Y. Revised Statutes, vol. ii. 192, sec. 158, declare, that the deed to the purchaser at a sale, under the decree of foreclosure, shall be an entire bar against all the parties to the suit, and their heirs respectively; but the statute goes no further, and the rights of other mortgagees and of judgment creditors, not being parties, are not affected by the sale. N. Y. R. S., vol. ii. 546, sec. 8, and in Louisiana, if there be an agreement in a mortgage by the clause de non alienando, it renders void, as regards the mortgage

after satisfying the encumbrancers who are brought into court, it will be paid over to the mortgagor, as the proceeds of his equity of redemption; though subsequent encumbrancers, who are not parties, would probably be permitted, on application to the court, and due proof of their title, to intercept its transit. The general rule is, that all persons materially interested in the mortgage, or mortgaged estate, ought to be made parties to a bill of foreclosure. This will ordinarily include the heir, or devisee, or assignee, and personal representatives of the mortgagor, and also the tenants for life, and the remain

derman; for they all may be interested in the *186 right of redemption, or in taking the accounts. *If the mortgage consists of a reversion or remainder, subject to an estate for life, it may be foreclosed; but the estate of the tenant for life would not be affected, and he would have no interest in the foreclosure. The bill to foreclose is filed in the name of the mortgagee, or his assignee, or, if dead, in the name of his personal representatives; for the mortgage debt is part of the personal estate of the mortgagee, and though, on his death, the estate technically descends to the heir, he will, without a manifest intent to the contrary, take it in trust for the personal representatives. But the ques

creditor, any alienation made in violation of it, and the mortgagee may carry on his executory proceedings of seizure and sale without making the vendes a party, or taking any notice of a change of owner. Haley v. Dubois, 10 Robinson, 54.

The N. Y. Revised Statutes, vol. ii. 192, sec. 159, 160, direct the surplus arising upon the sale to be brought into court, for the use of the defendant, or of the person who may be entitled thereto, subject to the order of the court; and if not called for in three months, it is to be put out at interest, for the benefit of the defendant, his representatives, or assigns.

Penniman v. Hollis, 13 Mass. Rep. 429. On a sale by the mortgagee, in the lifetime of the mortgagor, the surplus is personal estate; but if the sale be after the mortgagor's death, the surplus, as well as the equity of redemption, belongs to his heir. Wright v. Rose, 5 Sim. & Stu. 323. Moses v. Murgatroyd, 1 Johns. Ch. Rep. 130.

© Com. Dig. tit. Chancery, 4, A. 9. Demarest v. Wynkoop, 3 Johns. Ch.

tion of parties is usually more or less fluctuating, and open for discussion. It is governed, in some degree by circumstances; whereas, the principle that those persons who are interested in the subject, and are not made parties to the suit, are not bound by the decree, is more steady in its operation, for it is founded on natural right.

The equity of redemption may be foreclosed by the act of the mortgagor himself; for, upon a bill to redeem, the plaintiff is required to pay the debt by a given time, which is usually six months after the liquidation of the debt; and upon his default, the bill is dismissed. for non-payment which is a bar to a new bill, and equivalent to a decree of absolute foreclosure."

(4.) Equity of redemption barred by time.

The right of redemption may be barred by the length of *time. The analogy between the right *187 in equity to redeem and the right of entry at law, is generally preserved; so that the mortgagor, who comes to redeem against a mortgagee in possession, after the period of limitation of a writ of entry, must bring himself within one of the exceptions, which would save the right of entry at law, or the time will be a bar to the redemption, and a release of it to the mortgagee may be presumed. The limitation at law and in equity is usually the same, with the allowance of the same time for disabilities. The statute of limitations is assumed,

Rep. 145. Scott v. Macfarland, 13 Mass. Rep. 309. Grace v. Hunt, Cooke's Tenn. Rep. 344. Denn v. Spinning, 1 Halsted's Rep. 471. The cases, as to parties, are collected in 3 Powell on Mortgages, 968—977. 989—992.

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Belch v. Harvey,
Smith v. Clay, 3

Cholmley v. Oxford, 2 Atk. 267. Sir William Grant, in the Bishop of Winchester v. Paine, 11 Ves. 199. Perine v. Dunn, 4 Johns. Ch. Rep. 140. Jenner v. Tracy, cited in Cox's note to 3 P. Wms. 287. ibid. Anon., 3 Atk. 313. Aggas v. Pickerell, ibid. 225. Bro. 639, note. Lord Kenyon, in Bonny v. Ridgard, cited in 17 Ves. 99. Hodle v. Healy, 1 Ves. & Beame, 536. Demarest v. Wynkoop, 3 Johns. Ch.