Smith v. Simpson

(after stating the facts). (1) The farmers Oil & Fertilizer Company, the junior mortgagee, was not made a party to the foreclosure proceeding instituted by C. N. Simpson, the senior mortgagee. Willoughby Smith, Sr., the plaintiff in this action, purchased at the foreclosure proceeding instituted by the junior mortgagee and had a right to redeem from the first mortgage. Dickinson v. Duckworth, 74 Ark. 138; Allen v. Swoope, 64 Ark. 576: Purcell v. Gann, 113 Ark. 332; Livingston v. New England Mortgage Security Co., 77 Ark. 379; Longino v. Ball-Warren Commission Co., 84 Ark. 521; Turman v. Bell, 54 Ark. 273, and Memphis & L. R. R. Co. v. State, 37 Ark. 632.

Simpson’s mortgage was foreclosed in chancery. Section 5420 of Kirby’s Digest provides that where real property is sold under a foreclosure decree in chancery, the mortgagor shall have the right to redeem at any time within one year from date of sale by the payment of the amount for which the property sold, together with the interest thereon at the rate borne by the decree and the .cost of foreclosure and sale. The section also provides that the mortgagor may waive such right of redemption in the mortgage.

(2-4) In the present case the mortgagor waived his right of redemption in the mortgage executed to Simpson. .Consequently no statutory right of redemption from the sale under Simpson’s mortgage existed. Independent of the statute allowing the redemption by paying the amount for which the property sold with interest and costs, there is in equity a right to redeem from the mortgage. The rule in equity requires that to redeem property sold under a mortgage for less than the mortgage debt the whole mortgage debt must be tendered or paid into court, and that it is not sufficient to tender the amount for which the property sold. This is upon the principle that “he who seeks equity must do equity.” German National Bank v. Barham, 57 Ark. 533; Wood v. Holland, 53 Ark. 69; Wood v. Holland, 57 Ark. 198; Fields v. Danenhower, 65 Ark. 592.

(5) In all these cases the court recognizes the difference between redeeming from a mortgage and the statutory right of redemption from a sale under the mortgage. In each of them the rule laid down above is maintained. That is to say, in redéeming from a mortgage it is necessary to pay what is due on it.

(6) In the case of Fields v. Danenhower, supra, the court said: “In actions to enforce the mortgagor’s equity of redemption before foreclosure, the rule is that the whole debt must be paid. The debt being a unit* no party interested in the premises can compel the mortgagee to accept a portion, and to relieve the property pro tanto from the lien.” 3 Pom. Eq. Jur. § 1220. The same rule is applied, even after foreclosure, when one having an interest in the mortgaged property — such, for instance, as a junior incumbrance — is not made a party to the foreclosure proceedings, and afterwards comes into court for the purpose of enforcing his equity redemption. He must pay or tender the whole mortgage debt. In such cases, “the party offering to redeem proceeds upon the hypothesis that as to him the mortgage has never been foreclosed, and is still in existence. Therefore he can only lift it by paying it. ’ ’

The court decreed that the complaint of the plaintiff be dismissed for want of equity unless he elected to redeem by the payment of the whole mortgage debt. The plaintiff excepted to the ruling of the court and appealed to this court.

From the principles above announced it is apparent that the ruling of the court was correct and the decrée will be affirmed.