Opinion
Opinion delivered October 13, 1930.
1. MORTGAGES — REDEMPTION — WAIVER. — No statutory right of redemption from a mortgage foreclosure existed where the mortgagor waived his right to redeem in the mortgage. 2. MORTGAGES — RIGHT TO REDEEM. — Independent of statute, there is in equity a right to redeem in apt time by the mortgagor or any one claiming under him. 3. MORTGAGES — REDEMPTION — TENDER. — To redeem in equity property sold for less than the mortgage debt, the entire mortgage debt must be paid or tendered into court, and it is not sufficient to tender the amount for which the property sold if less than the entire debt.
Appeal from Pope Chancery Court; W. E. Atkinson, Chancellor; affirmed.
Robert Bailey, for appellant.
Robinson, House Moses and Frank Bird, for appellee.
STATEMENT OF FACTS
This appeal is prosecuted to reverse a decree of the chancery court refusing to allow appellant the right to redeem from a sale of land under a foreclosure decree by payment of the amount of the bid, which was less than the amount of the mortgage indebtedness.
Mary E. Barrie and C. A. Gibson, as trustee, brought suit in equity against Jess M. Shinn, and others, to foreclose a mortgage on real estate. The foreclosure decree recites that the mortgage which was foreclosed contained a waiver by the grantors of any right of redemption under 7411 of Crawford Moses' Digest. The decree also recites that the sale under it will constitute a perpetual bar to any right of redemption in the mortgaged premises.
Pursuant to the terms of the decree, the foreclosure sale was had by a commissioner appointed for that purpose; and Mary E. Barrie, the mortgagee, became the purchaser for the sum of $600, which was an amount less than the mortgage indebtedness. N. D. Shinn, who had purchased the equity of redemption of Jess M. Shinn, the mortgagor, tendered into court the sum of $600, together with the accrued interest, and asked that he be permitted to redeem the land from the foreclosure sale. From the judgment of the court refusing to accept his tender and to allow him to redeem said land from the foreclosure sale, N. D. Shinn has prosecuted this appeal.
(after stating the facts). The decree of the chancery court was correct. No statutory right of redemption from the sale under the mortgage exists because the mortgagor had waived his right of such a redemption in the mortgage. Smith v. Simpson, 129 Ark. 275, 195 S.W. 1067.
Independent of the statute allowing the redemption by paying the amount for which the property is sold with interest and costs, there is in equity a right to redeem from the mortgage, which right may be exercised by the mortgagor or any one claiming the equity of redemption under him. The rule in equity, however, requires that, to redeem property sold under a mortgage for less than the mortgage debt, the whole mortgage must be paid or tendered into court, and it is not sufficient to tender the amount for which the property sold. Wood v. Holland, 53 Ark. 69, 13 S.W. 739; Smith v. Simpson, 129 Ark. 275, 195 S.W. 1067.
The reason is that, the debt being a unit, no party interested in the whole premises or in any portion of them can compel the mortgagee to accept a part of the debt and to relieve the property pro tanto from the lien. In such cases, a mortgage in equity and in fact is only a security for the payment of a debt: and it is essential, in order to exercise what is known as the "mortgagor's equity of redemption," that the whole of the mortgage indebtedness must be tendered and paid.
Appellant only tendered the amount of the bid at the foreclosure sale which was less than the whole amount of the mortgage indebtedness. Hence the rule of the court was correct; and in this view of the matter it is not necessary to decide whether appellant waited too late to exercise the right of redemption. Therefore the decree will be affirmed.