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redemption money," it is held that where a husband's land has been purchased at an execution sale by his judgment creditor, and his wife redeems the same from a subsequent foreclosure sale made under a prior mortgage in the execution of which she joined, the two-thirds interest in the land which the judgment creditor acquired could be charged with a lien for the full amount of the redemption money paid by the wife. Union Nat. Bank v. McConaha, 14 Ind. App. 82 (42 N. E. Rep. 495). The Mississippi statute, Acts 1888, p. 40, does not cut off the right of an infant to redeem from a tax sale within one year after attaining his majority. Boddie v. Pardee, 74 Miss. 13 (20 So. Rep. 1).

Sec. 762.

Redemption by judgment creditors. The purpose for which a judgment creditor is permitted to redeem, limits the effect of his redemption to a revival of his own judgment. The others being extinguished by the sale remain extinct, notwithstanding that they may have been superior to his in point of time. Floyd v. Sellers, Colo. App. (44 Pac. Rep. 373). A junior judgment creditor while claiming title to his debtor's property under an invalid execution sale made by him may redeem from a prior execution sale of the property, and become subrogated to the rights of a redeeming creditor, upon his sale being set aside. Ind. Rev. Stat. (1894), § 777, *applied. Milburn v. Phillips, 143 Ind. 93 (42 N. E. Rep. 461). A judgment creditor who conveys land previously sold upon a decree foreclosing a mechanic's lien guaranteeing the title to his vendee, and in order to perfect such title purchases the outstanding certificate of sale and causes the same to be transferred to his vendee, is estopped from redeeming from such sale. Keller v. Coman, 162 Ill. 117 (44 N. E. Rep. 434). Where after a sale was set aside the purchaser procured an order from the court making the same allowing him to change the location of certain buildings for their protection and directing that the costs thereof be charged against the property and at a subsequent sale thereof the purchaser buys the property at his original bid, it was held that other lien creditors could redeem from the latter sale by paying the amount required by the statute, regardless of the charge made for the removal of such buildings, the right to

redeem being a statutory right and the court having no power to increase or lessen the burden of the redemptioner. Docrhoefer v. Farrell, 29 Ore. 304 (45 Pac. Rep. 797). A judgment creditor, who, by purchase at a sale under legal process issuing on his judgment, has succeeded to the equity of redemption of the judgment debtor and mortgagor, may be let in to redeem from a prior mortgage sale, at which the mortgagee purchased without authority, and a statute of limitation against this right does not begin to run until the creditor acquires judgment. Norton v. British-American Mortgage Co., 113 Ala. 110 (20 So. Rep. 968). Mill. & V. Tenn. Code, 2950, applied-advance of bid by a purchasing judgment creditor-redemption. Rogers v. Rogers, Tenn. (35 S. W. Rep. 890).

Sec. 763. Extinguishment or surrender of mortgagor's right to redeem. The right of a mortgagor to redeem is not extinguished by his conveyance of the land to the mortgagee unless such conveyance is intended as a payment of the debt. Robertson v. Wheeler, 162 Ill. 566 (44 N. E. Rep. 870). The mortgagor is not permitted to surrender his right of redemption beforehand, even by a stipulation in the mortgage to that effect, and his subsequent release of this right to the mortgagee will only be sustained when made without fraud on the part of the latter and upon his payment of full value therefor. Bradbury v. Davenport, 114 Cal. 593 (46 Pac. Rep. 1062; 55 Am. St. 92). The court say: "It is well settled that the mortgagor is not allowed to renounce beforehand his privilege of redemption; that, while generally any one may renounce any privilege or surrender any right he has, an exception is made in favor of debtors who have mortgaged their property, for the reason that their necessities often drive them to make ruinous concessions; that, when one borrows money upon the security of his property, he is not allowed by any form of words to preclude himself from redeeming (Jones, Mortgage, §§ 251, 1045), though the doctrine, 'once a mortgage, always a mortgage,' does not apply to subsequent contracts. Watson v. Edwards, 105 Cal. 70, 75 (38 Pac. Rep. 527, 528). In Peugh v. Davis, 96 U. S. 332, it was held that an equity of redemption is so inseparably connected

with a mortgage that it cannot be waived or abandoned by any stipulation of the parties made at the time, even if embodied in the mortgage, though a subsequent release of the equity of redemption may undoubtedly be made to the mortgagee. As to such release, the court, by Field, J., said: 'It must appear by a writing importing in terms a transfer of the mortgagor's interest, or such facts must be shown as will operate to estop him from asserting any interest in the premises. The release must also be for a consideration which would be deemed reasonable if the transaction were between other parties dealing in similar property in its vicinity. Any marked undervaluation of the property in the price paid will vitiate the proceeding.' In relation to such subsequent agreement, Jones in his valuable work on mortgages (§ 251), says: 'A subsequent agreement that what was originally a mortgage shall be regarded as an absolute conveyance is open to the same objection (that is, the objection to such agreement in the mortgage itself), and will not be sustained unless fairly made, and no undue advantage is taken by the creditor. The burden is therefore upon the creditor to show that the right of redemption was given up deliberately, and for an adequate consideration.' In support of this proposition, the author cites, among many other cases, Villa v. Rodriguez, 12 Wall. 323, from which we quote the following passage: The law upon the subject of the right to redeem, where the mortgagor has conveyed to the mortgagee the equity of redemption, is well settled. It is characterized by a jealous and salutary policy. Principles almost as stern are applied as those which govern where a sale by a cestui que trust to his trustee is drawn in question. To give validity to such a sale by a mortgagor, it must be shown that the conduct of the mortgagee was, in all things fair and frank, and that he paid for the property what it was worth. He must hold out no delusive hopes. He must exercise no undue influence. He must take no advantage of the fears and poverty of the other party. Any indirection or obliquity of conduct is fatal to his title. Every doubt will be resolved against him. Where confidential relations and the means of oppression exist, the scrutiny is severer than in cases of a different character. The form of the instrument employed is immaterial. That the mortgagor

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knowingly surrendered, and never intended to redeem, is of no consequence. If there is vice in the transaction, the law, while it will secure to the mortgagee his debt, with interest, will compel him to give back that which he has taken with unclean hands. Public policy, sound morals, and the protection due to those whose property is thus involved, require that such should be the law.'"

Sec. 764.

Procedure. Unless the officer whose duty it is to receive the redemption money makes some objection it may be paid in any kind of money of standard value, although not a legal tender. Rogers v. Rogers, Tenn. (35 S. W. Rep. 890). Where a statute (Ill. Rev. Stat. ch. 77, §§ 18, 19) prescribes the mode of making redemption, it is held that an assignment of the certificate of purchase to the owner of the equity of redemption by the person who purchased the lands will not operate as a redemption, Keller v. Coman, 162 Ill. 117 (44 N. E. Rep. 434).

Sec. 765. Miscellaneous notes. The equitable right to redeem may be lost by laches. Eastman v. Littlefield, 164 Ill. 124 (45 N. E. Rep. 137); Cockrill v. Hutchinson, 135 Mo. 67 (36 S. W. Rep. 375). It is held that a sale of real estate made in a proceeding under the Illinois statute for the winding up of insolvent corporations is properly made without redemption. Blair v. Illinois Steel Co., 159 Ill. 350 (42 N. E. Rep. 895; 31 L. R. A. 269). A deed by an officer executed in pursuit of a sale, from which the proper steps to redeem have already been taken, is void. Phillips v. Hagart, 113 Cal. 552 (45 Pac. Rep. 843; 54 Am. St. Rep. 369). One who redeems as the grantee of the judgment debtor is not a "redemptioner" within the meaning of that term as used in Cal. Code Civ. Pro., § 701. Phillips v. Hagart, 113 Cal. 552 (45 Pac. Rep. 843; 54 Am. St. Rep. 369). The time within which a mortgagor may bring an action to redeem from the mortgagee in possession begins to run from the time the mortgagee goes into possession; and the limitation upon suits to redeem, adopted by analogy, is the time within which an action to foreclose may be brought. Bradley v. Norris, 63 Minn. 156 (65 N. W. Rep. 357); Backus v. Burke, 63

Minn. 272 (65 N. W. Rep. 459); Dorsey v. Conrad, 49 Neb. 443 (68 N. W. Rep. 645).

REFORMATION.

Sec. 766.

N. J. Eq.

EPITOME OF CASES.

Tillis v. It must be a misSchmid v. Virginia

As to when equity will reform instruments. A lessee cannot have a reformation of a lease in order to enforce a forfeiture thereunder. Morris v. Kettle, (34 Atl. Rep. 376). A voluntary deed will not be reformed except upon the consent of the parties thereto. Shears v. Westover, 110 Mich. 505 (68 N. W. Rep. 266). An admitted mistake in the description in a conveyance of a homestead, otherwise regular, may be reformed. Smith, 108 Ala. 264 (19 So. Rep. 374). take and not a mere act of carelessness. Fire & M. Ins. Co., Tenn. (37 S. W. Rep. 1013). In a recent, well considered case, the authorities are collated and reviewed and it is held that a deed may be reformed even though the mistake be one of law rather than fact. Hancock v. Dodd, Tenn. (36 S. W. Rep. 742). Reformation which would create a void instrument will not be decreed. Merchants' & Laborers' Bldg. Ass'n v. Scanlan, 144 Ind. 11 (42 N. E. Rep. 1008). The right of grantee to have an admitted mistake in the description in the conveyance to him corrected is not affected by the existence of a parol agreement between him and the grantor that the conveyance should operate as a mortgage; nor by the fact that such grantee represented to his grantor that the conveyance would have the effect of defeating another mortgage upon the premises, it in fact having no such effect. Tillis v. Smith, 108 Ala. 264 (19 So. Rep. 374). For cases which depend upon particular facts and illustrate when reformation may be had, see Beall v. Martin, 48 Neb. 479 (67 N. W. Rep. 433); Fitchner v. Fidelity Mut. Fire Ass'n, Ia. (68 N. W. Rep. 710); Johnson v. Wilson, 111 Mich. 114 (69 N. W. Rep. 149).

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