True v. Haley

24 Me. 297

• Court: Supreme Judicial Court of Maine
• Decided: July 15, 1844
• Status: Published

Opinion

The opinion of the Court was by

Tenney J.

The equity of redemption, under a mortgage, is a subsisting estate in the land in the mortgagor, his heirs, devisees, assignees and representatives, and Courts of general equity jurisdiction have held, that not only such had the right of redemption, but that it exists in every other person, who has acquired any interest in the lands mortgaged by operation of law, or otherwise, in privity of title. But no case has been cited, and we have been able to find none, where one who once held the mortgagor’s interest, and has assigned the same with covenants of warranty, absolutely, has the right of redemption by reason of the covenants. He has no remaining interest in the land and no privity of title therein.

In this State the rights of those interested in mortgaged estates, are defined and regulated in a great degree by statute. By c. 125, <§> 6, “ the mortgagor or person claiming under him may redeem.” This provision cannot admit of the construe-lion, that the mortgagor, who has assigned his interest can redeem; but whoever holds an interest under him is entitled to tha.t privilege; but further than that, the right cannot be extended. The complainant had assigned all his interest in the equity of redemption by his deed to Elder, dated May 20, 1841, duly acknowledged and recorded. After that he could not in any sense be considered as claiming under the mortgagor. It is a subject of regret that the estate could not be disincumbered of the mortgage, when he was willing to pay whatever was due thereon, and thereby relieve himself from liability on his covenants; but if he chose to deprive himself of the power by his own conveyance, and a loss results, it must be imputed to that rather than to any defect in the laws.

Bill dismissed.