Durfee RedemptionForeclosureSale 1925

Redemption from Foreclosure Sale: The Uniform Mortgage Act
Author(s): Edgar Noble Durfee and Delmar W. Doddridge

Source: Michigan Law Review , Jun., 1925, Vol. 23, No. 8 (Jun., 1925), pp. 825-869
Published by: The Michigan Law Review Association
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825
MICHIGAN
LAW REVIEW
Volume XXIII JUNE, I925 No. 8
REDEMPTION FROM FORECLOSURE SALE-

THE UNIFORM MORTGAGE ACT
BY EDGAR NOBLE DURFEE*

AND DELMAR W. DODDRIDGEt
I.
Introduction-Equitable Redemption and Foreclosure.
A. Equitable Redemption. "Let mercy season justice," argued

Portia, and so the Chancellor when he invented the equitable doctrine
of redemption. The mortgagor had breached his obligation to pay
his debt and had, through his own default, lost the opportunity which
the common law gave him to redeem his land by timely performance
of the conditions of the mortgage.1 Yet the Chancellor mercifully
relieved him from the forfeiture which the common law pronounced
and allowed him, upon paying his debt with accrued interest, to
*Professor of Law, University of Michigan.

tFormer Student Editor of the Review.
'As the background for the Chancellor's doctrine, we picture the classical
theory of the common law, rather than the theory prevalent in America at the
present day.
If the mortgage was in the form of a deed conditioned to be void in case
of payment, payment or tender on the "law day" revested the title in accord-
ance with the general principles of conditional estates. Littleton, Tenures, ?? 332,
335. If, however, the mortgage was in the form common in England, a deed
with promise to reconvey, it seems that payment on the "law day" would not
revest title. 2 Cruise Digest; Title, Mortgage; Cap. II, ? 43. And in no case
would payment or tender after default revest title. Ib. ?? 41, 42. Stewart v.
Crosby, 50 Me. I30.

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826 MICHIGAN LAW REVIEW
recover the legal title which had become absolute in the mortgagee.
This he did on the theory that borrowers and lenders, debtors and
creditors do not stand upon equal footing-that necessitous men are
not free men.2
B. Equitable Foreclosure. "Let justice season mercy," is a

formula less familiar than Portia's, but the Chancellor seldom forgot
that mercy cannot be pressed to extreme lengths without defeating
substantial justice. He might go a long way in relieving against
forfeiture but he always realized that the right to redeem could not
be extended to infinity without reducing the mortgage to the level
of the common law bailee's lien, a mere privilege of sitting on the
property till redeemed. This would not only prejudice the interests
of the creditor-mortgagee class, but indirectly those of the debtor-
mortgagor class, since the latter's borrowing power would be im-
paired if they could not under the law give an adequate security.
Hence upon a bill to redeem, the Chancellor fixed a short day within
which the right of redemption must be exercised, in default of which
the bill was dismissed and the mortgagor stood foreclosed.3 For the
same reason, he would entertain a bill by the mortgagee to foreclose
the equity of redemption, again fixing a short day within which the
mortgagor might redeem,4 and decreeing that, in default of such
2Vernon v. Bethell, 2 Eden IIO; Peugh v. Davis, 96 U. S. 332; Pierce v.

Robinson, I3 Cal. II6; Batty v. Snook, 5 Mich. 23I.
The doctrine of redemption is often explained as an application of the
maxim that the Chancellor regards intent rather than form. This is very
questionable as a historical explanation of the doctrine, and is wholly inade-
quate to account for those many cases in which explicit stipulations for for-
feiture or for waiver of the equity of redemption are held void. See note,
The Basis of Relief from Penalties and Forfeitures, 20 Mich. L. Rev. 646.
3At least after the entry of an order finding the fact of default and dis-
missing the bill. Flanders v. Hall, I59 Mass. 95; Bolles v. Duff, 43 N. Y. 469.
In some states, the practice is to order a sale, as on a bill to foreclose. Meigs
v. McFarlan, 72 Mich. 194.
4Thus a bill for foreclosure might result in redemption, and a bill to re-
deem might result in foreclosure. This is not a caprice of the Chancellor but
is a natural consequence of the fact that either bill brought all the parties be-
fore the court and sought a solution of the mortgage relation, which is essen-
tially a relation of suspense, looking toward further adjustments. That re-
demption has, in either case, the right of way over foreclosure, is a necessary
consequence of the doctrine of redemption.

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REDEMPTION FROM FORECLOSURE SALE 827
redemption, the mortgage should be foreclosed. This forecl

process was as utterly simple as that of redemption. In its p
form, now called "strict foreclosure," it did not involve the sale
which is a familiar feature of present day practice. "The decree
only professes to close a door, which equity had before kept open,"5
thus disencumbering the title of the mortgagee which had become
absolute at law. It might be thought that in thus permitting fore-
closure, the Chancellor had substantially demolished his doctrine of
redemption,-that, at most, he had extended the time of payment,
created a sort of moratorium. But, in truth, the net result of the
doctrines of redemption and foreclosure is essentially different from
the effect which would have followed from an act of Parliament,
extending the right of redemption for a certain period after default.
For one thing, the Chancellor's doctrine was elastic. An anxious
mortgagee might make the period of redemption relatively short by a
prompt suit for foreclosure, while one who was satisfied to indulge
the mortgagor, might let the period of redemption run to any length.
Again, the Chancellor had a broad discretion in fixing in his decree
the "short day" in which redemption must be made and would, of
course, exercise his discretion to meet the equities of the particular
case.6 Furthermore, foreclosure by decree of court was essentially
different from, not merely later than, forfeiture at law, in that it
only occurred upon the solemn warning to the mortgagor which the
decree necessarily gave, a difference comparable to that between the
alarm clock and the common time-piece.
C. Sale in Equity. Strict foreclosure remained the normal pro-

cess in England until an act of Parliament in I852,7 and is still in
common use.8 It is still the normal remedy in Connecticut and Ver-
mont, and is permissible under certain circumstances in many states.9
The English Chancellor, however, began at an early day to decree a
? Goodman v. White, 26 Conn. 3I7.

6A decree which gave no time for redemption was held fatally defective
in Clark v. Reyburn, 8 Wall. 318. But such decree is not void. Evans v.
Atkins, 75 Ia. 448.
715 & I6 Vict., Cap. 86, ? 48.
82 Coote, Mortgages (8th ed.), Cap. 49.
9Jones, Mortgages (7th ed.), ?? I542-1556.
10Cases are gathered in Lansing v. Goelet, 9 Cow. 346, 373-378.

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sale of the property in exceptional cases.10 In this country

courts and legislatures gave the newer process a much warme
come. The change in the theory of the mortgage, the adoptio
in the common law of the view that it only created a lien, ma
had something to do with this attitude. But the decisive influ
were purely practical considerations of justice and convenience."
Let us canvass the objections to strict foreclosure. By it, the

mortgagee might acquire land greatly exceeding in value the amount
of the debt.12 The Chancellor never refused the decree because of
discrepancy in values, nor did he attempt valuation and foreclosure
upon part of the land, and it is clear that either of these things would
have unduly prejudiced the mortgagee. A petition for reopening of
the foreclosure, accompanied by a tender of the debt, was more ap-
pealing, and frequently succeeded, even against a purchaser from the
mortgagee. In England, this practice was carried so far as to ser-
iously impair the process of foreclosure. Maitland, after enumerat-
ing the grounds upon which relief might be granted, says, "One is
not very safe in purchasing a foreclosed estate, and owing to this
meddlesome equity foreclosure is not a procedure upon which pru-
dent mortgagees will place much of their reliance."13 The American
courts appear to have been more cautious in opening foreclosures,14
but necessarily at the expense of less complete protection to the
mortgagor. Clearly strict foreclosure could not be so moulded or
~"Though the newer practice first gained favor in New York, the mother
of the lien theory, it antedated the latter by quarter of a century. Lansing
v. Goelet, 9 Cow. 346, 359-368, 394-396, 401. At the present time, the practice
of sale is as completely accepted in most of the title states as it is in the lien
states.
12This point made in Mussina v. Bartlett, 8 Port. 277, 287; Wilder v.

Haughey, 2I Minn. IOI; Lansing v. Goelet, 9 Cow. 346, 352. The similar
argument of Lord Erskine, in Perry v. Barker, I3 Ves. I98, 205, bore little
if any fruit.
It is easy to exaggerate this danger, "It is rarely that a foreclosure can
take place, where the estate much exceeds the debt in value. Another pur-
chaser is usually found, and a non-redemption therefore affords a pretty
strong evidence of an inferiority in value." Story, J., in Hatch v. White, 2
Gallison 152, 159.
13Maitland, Lectures on Equity, 273. See also 2 Coote, op. cit., io85.
14Jones, op. cit., ? I569.

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controlled as to fully protect the mortgagor without unduly prejudic-

ing the mortgagee. On the other hand, a sale of the land would
presumably produce its fair value and, if the sale produced more
than the amount of the mortgage debt, the mortgagor would of
course get the surplus or get the benefit of its application on junior
liens.
But objection to strict foreclosure did not come entirely from

the side of the mortgagor. It has been argued that the mortgagee
is entitled to have payment in money rather than land, and should
therefore be entitled to subject the land to sale.15 This contention
is the more forceful since we have abandoned the process of Elegit
and made land subject to sale upon general execution. Furthermore,
the process of strict foreclosure involved embarrassments for the
mortgagee in case the land was worth less than the debt. In England,
it became settled that the mortgagee, after a foreclosure, could sue
at law upon the personal obligation but that this reopened the fore-
closure, enabling the mortgagor to redeem, and, if the mortgagee had
sold the land so that he could not restore it to the mortgagor, he
could not sue for a deficiency at all.16 In this country it has been
held that the foreclosure satisfies the debt, but the usual view has
been that it satisfies the debt to the extent of the value of the land.17
The value is not ascertained in the foreclosure suit but is left to
investigation in any action that may be brought upon the debt. None
of these dispositions, even the last, could be considered wholly sat-
isfactory to the mortgagee, who was entitled to payment in money
of the whole of his debt. On the other hand, a judicial sale of the
land gives the mortgagee money, that to which he is entitled, and it
automatically determines the amount, if any, of the deficiency.18
'5Hatch v. White, 2 Gallison I52, I6o; Lansing v. Goelet, 9 Cow. 346, 352.
See also Earl of Kinnoul v. Money, 3 Swanst, 202, 208, note; Dashwood v.
Bithazey, Mos. I96.
This side of the picture might seem to be the larger, in view of Justice
Story's point, note 12, supra. But we shall see that it was rather vain to hope
that the sale would produce real money.
1^2 Coote, op. cit., 899.
17Jones, op. cit., ? i567.
8sIt seems never to have been held that a foreclosure sale discharged the
personal obligation beyond the amount of the proceeds, but the point was con-
sidered debatable by Chancellor Kent (Dunkley v. Van Buren, 3 Johns. Ch.

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830 MIICHIGAN LAW REVIEW
This neat solution of the problem paved the way for another
of Chancery practice, the granting of a deficiency decree in
equity suit, thus doing away with the necessity of another ac
D. Sale under a Power. When the practice first arose of
inserting in the mortgage a power of sale, it was a serious question
whether the Chancellor would tolerate its exercise. It savored of a
clog upon the equity of redemption. It smelled of an attempt to
circumvent the Chancellor's mercy. When Powell wrote his treatise
on Mortgages (I785), he considered powers of sale "of too doubtful
a complexion to be relied on as the source of an irredeemable title."20
The arguments in support of the power were, however, very strong.
As compared with strict foreclosure, this process had all the ad-
vantages which we have seen to reside in the judicial sale, except
for the deficiency decree.21 As compared with foreclosure by sale
under decree of Chancery, it had the merit of economy and expedi-
tion, of obvious advantage to the mortgagee and indirectly of benefit
to the mortgagor. The advantages more than counterbalanced the
danger of oppression of the mortgagor.22 Again justice seasoned
33I) and was not finally settled in New York until 1827. Lansing v. Goelet,
9 Cow. 346. But see N. J. Comp. St., I9IO, p .3420, ?? 47-49; Ore. Laws,
1920, ? 426.
'9This step did not necessarily follow upon the adoption of foreclosure by
sale. It was held inadmissible in Dunkley v. Van Buren, 3 Johns. Ch. 33I;
Durrett v. Whiting, 23 Ky. 547; and such was the law of England until the
Judicature Act. Dymond v. Croft, 3 Ch. D. 512. The deficiency decree was
invented by the draftsmen of the epochal Revised Statutes of New York, of
I828. In Carroll v. Deimel, 95 N. Y. 252, it was held that the debtor did not
have a right to jury trial on this branch of the case. The decision appar-
ently went by default of adequate presentation of the constitutional-historical
argument, but was fortunate in view of the extreme inconvenience of the op-
posite ruling. For other cases on jury trial, see 34 A. L. R. 980.
20The statement still appeared in the fourth edition (I799), p. I9. Until
1825, it was doubtful in England whether a power given to the creditor,
rather than to trustees, was valid. Powell, Mortgages (ISt Am. ed.), ga, note.
21If sale under a power does not realize the debt, the mortgagee has a
valid claim for the deficiency, but it must be enforced in an action at law.
27 Cyc. 1500.
22There is great danger of hardship on the owner of the equity of re-
demption and junior lienors through lack of notice of the sale. Yet if actual
notice to all interested persons is made essential to the process, much of the

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REDEMPTION FROM FORECLOSURE SALE 83I
mercy, and the power of sale won recognition,23 and recognition, n

merely as an agency or power superimposed upon the mortgage an
therefore to be governed by the law of agency or the law of powe
but "as a mode of foreclosure provided by contract of the parties
so just and equitable in its provisions that it receives the sanctio
of courts of equity."24 In one state, the courts have denied the
validity of such powers;25 in several the legislature has nullified it
by a provision that a mortgage can only be foreclosed
by decree of court ;26 and in many states, where it is a permissib
process, it has never come into common use. It is, however, a law-
ful process in the great majority of our states.27
E. The Inherent Weakness of Foreclosure by Sale;-Reme-

dies. Having, by the process of sale, corrected the evils of the
primitive foreclosure, we might seem to have reached perfection.
Yet there is a fly in the ointment. A public sale may be expected
to produce the fair value of the land but, in practice, conspicuously
inconvenience of foreclosure in equity is retained. The Uniform Act proposes

an excellent solution by requiring the mailing of notice to all known parties,
but adopting a criminal sanction and declaring that failure to mail the notice
shall not avoid the sale. Fourth Tentative Draft ? I5. Other abuses may be
curbed without impairing the process.
23Though following the earliest use of sale in particular cases of equita-

ble foreclosure, the recognition of the power of sale antedated, both in Eng-
land and America, the general adoption of judicial sale. (Compare notes 7 to
II with note 20 and with Bergen v. Bennett, i Caines Cas. I.) Its recognition
came sooner in this country than in England, yet in the latter country the
power came into common use at an earlier day than here, probably because
they were there tardier in developing the judicial sale.
24Varnum v. Meserve, 8 Allen I58. See also Penryn Fruit Co. v. Sher-
man-Worrell Fruit Co. 142 Cal. 643; First National Bank v. Bell Mining Co.
8 Mont. 32, 49; Bell Mining Co. v. Butte Bank, I56 U. S. 470, 476; Reilly v.
Phillips, 4 S. D. 604, 6I3.
The cases are not entirely harmonious. Hall v. Bliss, I I8 Mass. 554;
Johnson v. Johnson, 27 S. Car. 309. And see the last case in the preceeding
paragraph, at pp. 607-6ii. See also Tiffany, Real Property ? 656.
The process is commonly called "Foreclosure by Advertisement and Sale."
25Kirkendall v. Weatherley, 77 Neb. 421; Cullen v. Casey, 95 N. W. 605.
Pierce v. Grimley, 77 Mich. 273, 280, indicates the view that the power
of sale is validated only by statute.
26Jones, op. cit., ?? I723-I1763.
27Jones, op. ict., ?? I766, 1767.

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fails to do so. Experience teaches that, even though all it

are shaped to attract them, the public are not interested
sale beyond bargain prices.28 Indeed, one seldom finds in
28Execution and foreclosure sales are commonly required to be for cash.

This is almost prohibitive of general bidding. Handbook of Commissioners
on Uniform State Laws, 1922, p. 259. In some states time is permitted, but
this involves difficulties of various kinds and it is doubtful whether it is worth
what it costs because it is doubtful whether the public can be seriously inter-
ested by this concession. It would seem that the only way to get value out
of land is that in which every person goes about the sale of his own land,-
private sale, with abundant advertising of a kind more attractive than a legal
notice, with the intervention of a broker, and taking time to find the best pur-
chaser. Handbook, I922, p. 259.
We find no clear authority in England or America for a decree directing
a private sale, though I5 & I6 Vict. C. 86, ? 48 authorizes a sale "on such
terms as the court may think fit to direct." The English Court frequently
directs a sale "out of court," but this is at least in some cases an auction sale
and we cannot find that such order permits any other. The conduct of the
sale is often given to the mortgagor as the person most interested in securing
a good price. Wooley v. Colman, 2I Ch. Div. I69; Davies v. Wright, 32 Ch.
Div. 220. See also Brewer v. Square, [I892] 2 Ch. i I, where, on terms pro-
tecting the mortgagee, the court permitted the mortgagor, plaintiff, to sell out
of court, apparently by private sale, although the mortgagee, defendant, in-
sisted upon his right to at once sell at auction under his power of sale.
In the absence of statutory regulation, a power of sale may by express

provision authorize private sale, Jones, op. cit. ? I863. In England, the stat-
utes authorize public or private sale at the election of the mortgagee. 2 Coote,
op. cit., 929. Where a statute regulating the exercise of a power requires
public sale, it is very doubtful whether a private sale can be authorized. Pierce
v. Grimley, 77 Mich. 273. Compare Teal v. Walker, III U. S. 242; Hazeltine
v. Granger, 44 Mich. 503.
We would think, then, that prayerful consideration should be given to the

question whether the Uniform Mortgage Act should carry the unqualified pro-
vision now found in ? I6 requiring a public sale for cash, and whether the
proposed Act on Foreclosure in Court should carry the provision now found
in ? 3 requiring sale as on general execution. Whether they should, the writers
do not pretend to know. In other than mortgage cases, there is authority for
private judicial sales (I7 Am. & Eng. Enc., 2d ed., 975), they may be ordered
in Bankruptcy (Remington ? 2549) and by statute this is standard practice
in this state of Michigan in administrators' and guardians' sales, a practice
which has certainly proved beneficent. There are, however, several factors
which may distinguish a foreclosure sale, principally (i) it may, as we shall
see, be possible to force the mortgagee to bid at public sale far beyond what

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anyone except those who are already interested in the land as

or encumbrancers, and it is exceedingly common to find the
gagee the only bidder.29 We are told on good authority30 t
nearly every case the property is bid in by the mortgagee.
foreclosure by sale is in practice strict foreclosure, vesting
in the mortgagee, but with possibilities for hardship on the mor
of which the older process was incapable. We have seen that a
strict foreclosure either satisfied the personal obligation of the
mortgagor in full or to the extent of the value of the land, to be
ascertained by a jury, or else, as in England, a suit on the personal
obligation opened the foreclosure and permitted the mortgagor to
recapture the value of the land. Pursuing the newer process, how-
ever, the mortgagee merely credits upon the debt the proceeds of
the sale and can hold the mortgagor for the deficiency. In case
of sale at an inadequate price, the oppression is obvious, and such
oppression is not merely possible, it is, in varying degrees, common-
place.31 A foreclosure sale (whether judicial or extrajudicial) may
indeed be set aside by a court of equity for fraud or misconduct but
it can not be set aside merely upon the ground of inadequacy of
price without substantially impairing the efficacy of all foreclosure
sales, rendering them, in the language of Powell, "of too doubtful a
complexion to be relied on as the source of an irredeemable title."
The courts have almost uniformly held that inadequacy of price
is not in itself a ground for setting aside a foreclosure sale,32 and
quite wisely, since the price of such relief is too dear.
others are willing to bid, (2) permission of private sale would involve special
problems in regard to redemption from sale.
29The mortgagee is not competent to purchase at a sale under a power

exercised by himself, but otherwise when the power is vested in third persons
as trustees. Jones, op. cit., ?? I876, i88o, I882. But he may be authorized
by the power to purchase at his own sale. Ib., ? I883. And in some states
the statutes authorize him to purchase. Ib. ? I882.
Neither a judicial sale nor a sale under power is invalidated by the fact
that the mortgagee is the only bidder. Ib., ?? I677, I914a.
30Handbook, 1922, p. 275.
31Handbook, 1922, pp. 260, 272.
32Judicial sales, Jones, Mortgages (7th ed.) ? I670; sales under a power,
Ib. ?? I909, I915; 8 A. L. R. IooI, note.

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The situation is so far from satisfactory that legislatu

taken a hand in the matter. In several states, statutes have been
enacted, providing for an appraisal of the property before sale and
prohibiting sale for less than a specified portion of the appraised
value.33 This sort of legislation is clearly open to two objections:
unless the valuation is padded, it insures the mortgagor of only a
fraction of the value of his land, and, on the other side, an over-
generous appraisal may put the mortgagee to a choice between for-
going the remedy or taking the land at a valuation which he can
never realize from it. Clearly, appraisal is not a wholly acceptable
device and it has been resorted to in few states.
Comparable to the statutory appraisal, which is applicable to

all mortgages, is the practice, of purely judicial origin, applied only
to cases of railroads and other large properties, of fixing an "upset
price." In theory this involves an appraisal but in practice it is
usually fixed by agreement of all the interested parties. It is ob-
vious that this device is open to the same objection as the other, but,
in cases of the type referred to, there are factors which may justi-
fy it.34
Another effort to eliminate under bidding is found in the

statutes providing for redemption from foreclosure s'ales. The
statutes of this type now existing and the proposals in this regard
for a uniform mortgage law are precisely the subject of this paper.
33Jones, op. cit. ? i6iia. The statutes are generally applicable to all exe-
cution sales, those under general execution as well as those under special exe-
cution on foreclosure of mortgage. They are dealt with at length in 23 C. J.
458, ff. It seems that such statutes are not applicable to sales under a power.
Etna Coal Co. v. Martin Iron Co. I27 Fed. 32. In only one state is there a
statute expressly requiring appraisal upon a sale under a power, and that pro-
vides that if there are no bidders the property may be offered again after lapse
of a year, and sold without limitation. Ark. Dig. of St. I92I, ? 7404, ff.
The Kentucky statute is peculiar in that sale for less than two-thirds of the
appraised value merely gives rise to a right of redemption. Carroll's St.
I909, ?? I684, 2364.
34See valuable articles, Upset Prices in Corporate Reorganization, by Sam-
uel Spring, 32 Harv. L. Rev. 489; Business Security and Legal Security, by
Nathan Isaacs, 37 Harv. L. Rev. 20oi. A similar practice in England goes
under the name of "Reserved Bid." Ex parte Commercial Bank, re J. & R.
Hills, 9 L. T. (N. S.) 782.

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II.
General Frame and Purpose of Statutes on Redemption from

Foreclosure Sales.
In an appendix, we present the redemption provisions of the

tentative draft of the Uniform Mortgage Act, which are fairly typical
of existing legislation.35 These statutes present endless variety in
detail but equally striking resemblances which can be easily sum-
marized. Some of these statutes deal with sales under powers,36
others with judicial sales on foreclosure of mortgage, and still others
with sales under general execution, while some dispose of two or
more of these cases by one set of provisions. Yet they are all con-
find, obviously, to redemption from sales which have been made by
way of foreclosure of liens.37 All of these statutes specify with
more or less precision the persons who may effect a redemption, all
35The pioneer statute appears to be the New York act of I820, 43d Sess..
Cap. I84, p. I67. The law was expanded and materially modified in the Re-
vision of I828 (II Rev. St. I828, p. 370-Part III, Cap. VI, Title V, ? 42, ff.).
These acts were applicable to execution sales. In I837 an act was passed
dealing with redemption from sales on the foreclosure of mortgages, (6oth
Sess., Cap. 410, p. 455) but was repealed in I838. (6ist Sess., Cap. 266, ? 9,
p. 264). We have not traced the legislation of other states exhaustively but
the early statutes we have seen suggest derivation directly or indirectly from
those of New York. Indirect borrowing is seen in the Colorado statute which
is said to be borrowed from that of Illinois (Jenkins v. Gold Dollar Mining
Co. 27 Colo. App. 247) which in its original form was borrowed from the
New York act of 1820. (Ill. Laws, I825, p. I55). The Uniform Act is mod-
elled on the Minnesota law, which derives from the Revised Statutes of I828.
See the original, Minn. Gen. St., I866, Cap. 66, ? 288, ff., Cap. 8I, ? I3, ff., ? 3I.
36So, the provisions of the Uniform Mortgage Act, which fall in Part II,
dealing with foreclosure by sale under a power, and apply only to this case.
The Commissioners have, however, in their tentative draft of an Act on Fore-
closure in Court, incorporated by reference ?? 2I-26 of the Uniform Mort-
gage Act. Handbook, I924, p. 469.
37Hereinafter we shall cite cases involving the three kinds of sales indis-
criminately, as the courts have constantly done, save in cases where other fac-
tors vary in such way as to make this improper. No court has ever sug-
gested that distinctions are to be drawn with reference to the type of sale in-
volved. A distinction has been drawn between mortgage liens and judgment
liens which may give the same result as to some cases but not as to all. Note

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MICHIGAN LAW REVIEW
836
of them including in this class the owner of the equity of r

and practically all including junior lienors. All of them s
certain time within which the redemption may be made
often there is one period for one class of persons and a different
period for another class of persons, a process of differentiation
which may be carried to the length of creating as many periods as
there are persons entitled to redeem. All of them specify the sum
which must be paid to redeem, in which the basic factor is the
sale price, to which is added interest at a specified rate and sometimes
other items. All of them have something to say as to the effect of
the redemption, but this is a matter involving too great difficulty
to be considered at this point. It will be the subject of extended dis-
cussion hereafter.
There are obvious resemblances between the sort of redemption

here under examination and the equitable redemption invented by
the Chancellor, resemblances sufficient to cause some confusion,38
but the differences are at least as important and may well be briefly
dwelt upon. The equitable right of redemption was created by the
Chancellor at an early day, is an integral part of the system of equity
and exists in all our states in substantially the same form, while
the right of redemption with which we are now concerned does not
exist unless given by statute, the statutes vary greatly, and over half
of our states have no such legislation applicable to foreclosure of
mortgages. The equitable right of redemption comes into existence
at the maturity of the mortgage39 and extends (unless, perchance, it
79, infra. It is often a nice question whether an act dealing with execution
sales applies to chancery sales on foreclosure of mortgages. The New York
statute was held not to apply. North River Insurance Co. v. Snediker, Io
How. Pr. 3Io. But the California Code, by reason of a slight change of
phraseology, was so applied. Kent v. Laffan, 2 Cal. 595.
38There is little confusion in the cases, for no one can get close to the
problem without seeing the manifold distinctions. But there is much con-
fusion in the secondary material. The American Digest system has no ade-
quate headings to segregate statutory redemption from equitable redemption
and the digest notes of some cases are so obscure as to make it impossible to
know which kind of redemption is involved. So, Jones, who has no adequate
headings, mingles the cases and sometimes miscites them.
39It is common usage to speak of the mortgagor's estate even before ma-
turity as an "equity of redemption." He cannot, however, force a redemption

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is barred by limitation) until foreclosure. It ceases then, for fore-

closure is essentially a process for extinguishing the equity of re-
demption.40 On the other hand, the statutory right of redemption
before maturity unless this is provided for in the mortgage. Brown v. Cole,
14 Sim. 427; Bowen v. Julius, I4I Ind. 310. And, prior to maturity, the mort-
gagor has more than an equitable interest. He has at least a right of entry,
Note I, supra. Indeed, the meticulous may quarrel with any use of the term
"equity of redemption" because in modern American law the mortgagor has a
legal estate until foreclosure. Kortright v. Cady, 2I N. Y. 243, 365. Yet it
remains true today that, from the moment the mortgage is executed, the most
important right the mortgagor has is his equitable right of redemption. One
cannot, then, find serious fault with the current use of the term to designate
the whole of the mortgagor's estate.
40It is by no means easy to fix the precise moment when the right of re-
demption is extinguished. In the case of strict forelcosure, the decree is nisi
and the foreclosure is not complete until lapse of the time reserved for re-
demption, Ellis v. Leek, 127 Ill. 60; or, under the English practice, until entry
of a further order finding non-payment within the time and declaring the
foreclosure absolute. Senhouse v. Earl, 2 Ves. Sr. 450; Bolles v. Duff, 43
N. Y. 469. Under the practice in some states, a decree for sale is also nisi,
reserving a period for redemption. In such case it might be held (I) that the
equity of redemption is foreclosed upon the lapse of this period, or (2) that
a further order is necessary, or (3) that the sale takes the place of such order
and that foreclosure takes place when the property is put up for sale or (4)
when the sale is closed or (5) when it is confirmed. We find no answer to
these questions. Usually a decree for sale is absolute in form, it being sup-
posed that the interests of the mortgagor are sufficiently safeguarded by the
sale, Perine v. Dunn, 4 Johns. Ch. I40, I43; and it being probably assumed
that the right to redeem will extend until the sale without express provision
and that this is equivalent to a day reserved. Under this practice, it might be
held (i) that the equity is foreclosed upon entry of the decree, or (2) when
the property is put up for sale, or (3) when the sale is closed, or (4) when
the sale is confirmed. In support of (i) we could cite many cases saying that
the equity is foreclosed by the decree but none in which the court clearly meant
that it is foreclosed at this precise moment. Several cases support indiffer-
ently (2) or (3). Weiner v. Heintz, I7 Ill. 259; Stoddard v. Forbes, I3 Ia.
296; New England Mortgage Co. v. Smith, 25 Kas. 622; White v. Smith, I74
Mo. I86; Wimpfheimer v. Prudential Ins. Co. 56 N. J. Eq. 585; Brown v.
Frost, io Paige 243; Willis v. Smith, 66 Tex. 31. United States v. Vestal,
4 Hughes 467, involved a sale on general execution at which, after bids had
been received but before the hammer fell, the debtor tendered payment of the
judgment, and it was held that this stopped the sale. New England Mortgage
Co. v. Smith, Wimpfheimer v. Prudential Ins. Co., and Brown v. Frost, supra,
involved definite consideration of the fourth suggested solution, that foreclosure

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from a sale comes into existence upon foreclosure at the very mo-
ment when the equity of redemption is extinguished.41 Equitable
redemption requires the payment of the mortgage debt with interest
at the rate fixed by the mortgage or, the mortgage being silent, at
the rate fixed by law for simple debts, while the statutory redemption
is conditioned upon payment of the sale price, whether more or less
than the debt, with interest at the rate specified in the redemption
statute. Again, the consequences of redemption in the two cases
are quite different. The effect of equitable redemption from the
mortgage is invariably to remove the incumbrance of the mortgage
and merely this,42 while the effect of statutory redemption from a
sale is so complicated by the terms of the statutes and the decisions
construing them that it cannot be summed up in a phrase, unless it
be the mere statement that it is always different from equitable
redemption.43
Now let us consider the purpose and effect of this legislation.

The two questions are largely one, for the purpose of the statute
takes place on confirmation of the sale. They all reject it but each under
such circumstances as to leave room for argument. The Nebraska statutes
preserve the right of redemption until confirmation. Comp. St. I922, ? 1922,
? 9012. See also, Ohio, Page & Adams Code, ? II690.
Upon sale under a power, the crucial point must be either the beginning
or the end of the sale. Durden v. Whetstone, 92 Ala. 480; Kinsley v. Ames,
2 Metc. 29.
41The usual terms of the statutes, giving the right for a certain period
after sale, would indicate that it arises at the moment the sale is complete, but,
in the case of sales requiring confirmation, this might be held essential to re-
demption. More could be said for making this the moment when the statutory
right arises then for making it the point when the equitable right
ceases, because this is redemption from the sale by paying money to the
purchaser and the sale is not complete as to the purchaser until confirmation.
See Neb. Comp. St. 1922, ? 9012; Ore. Laws, I920, ?? 246, 248.
If a hiatus exists between the death of the equity of redemption and the
birth of the statutory right, this merely makes the contrast between the two
the greater.
42The statement ignores the doctrine of subrogation by which the mort-
gage may be kept alive for the benefit of the redemptioner.
43The contrast between the equitable right of redemption and the statutory
right of redemption is discussed in Powers v. Andrews, 84 Ala. 289; Eiceman
v. Finch, 79 Ind. 5II; Spurgin v. Adamson, 62 Ia. 66I; Higgs v. McDuffie,
8I Ore. 256.

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must be principally inferred from its effects. At first glan

purpose and effect might seem to be merely to give the mo
more time and another chance, accompanied, as in the case
Chancellor's decree for redemption or forclosure, by a solem
ing of the consequences of neglect. It may be conceded at once
that this is one of the purposes and effcts of the state, and it is not
insignificant. One of its important aspects is that it gives time for
refinancing.44 Another is that it minimizes the adverse effect of the
mortgage upon such temporary financing as the mortgagor may find
it necessary to resort to during the continuance of the mortgage,
his banker being safer in making advances on short time paper if
he has some assurance that the borrower's land will not be snatched
from him by high speed foreclosure.45 But when all has been said
regarding the advantages in this direction of the statutory right of
redemption, it must be confessed that these purposes might have been
accomplished in a simpler way by a statute requiring a generous
lapse of time between the filing of the bill for foreclosure and the
foreclosure sale, and between notice of sale under a power and
exercise of the power, a familiar type of legislation.46 Such pro-
visions would equally secure time with a warning, the opportunity
for refinancing and the facilitation of short time financing, and
would do so without involving us in the many legal puzzles which
arise out of the redemption statutes. If, then, the only purposes of
the redemption statutes are those which we have examined, it could
be said that the statutes are unwise legislation.
It is clear, however, that redemption statutes have another pur-

pose and effect, that which was aimed at by appraisal and the upset
price, the prevention of the hardship of a sacrifice sale. Their
operation in this respect is two fold. If an oppressive sale takes
place, those who are given the right to redeem (substantially all those
who were interested in the equity of redemption) may recapture the
44Either by sale or a new mortgage. Handbook, 1922, p. 270.

45Handbook, I923, p. I45.
46Mich. Comp. Laws, 1915, ? I2677; Neb. Comp. St., I922, ? 8988; Okl.
Comp. St., I921, ? 704; Wis. St. I9I9, ? 3162. Of the same effect, is the
practice of making the decree nisi, giving the defendant a day to redeem.
Statutes and rules of practice requiring notice of sale for a certain period
have incidentally this effect.

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excess value of the land by redemption from the sale. They

"privileged bidders"47 who are allowed to come in after the hammer
has fallen and take the land at the amount of the last bid. But the
statutes also operate indirectly to the same end by encouraging, al-
most compelling, the mortgagee to bid up the property to its fair
value. This effect becomes clear if we picture the position of the
mortgagee on the eve of the sale. In the light of common experi-
ence, he might expect to be the only bidder present at the sale and
would know that in any case he would have advantage of all other
bidders in that he could bid the property up to the amount of his
debt without any outlay of cash. If, then, there were no statute
providing for redemption, he might well say to himself that he had
everything to gain and nothing to lose by bidding in the property
at a bargain price, for whatever his bid, he gets the land, and the
lower the bid, the greater the deficiency which he may claim from
the mortgagor. He would not need to concern himself with the
financial responsibility of the mortgagor as the larger claim could
in no case work to his injury and might be beneficial. Presumably
he would not force his advantage to the point of a merely nominal
bid, but he certainly could not be expected to bid the property up
to its fair value unless faced by competitive bidding.48 On the other
hand, with such a redemption statute as we are considering, the
mortgagee must understand that, even though he is the only bidder
at the sale, the preferred bidders are in the offing threatening to take
the property from him by redemption, in which case he would get
47The phrase seems to have been invented by Mr. R. A. Fox, the writer
of a note in I6 Mich. L. Rev. 204. In Pamperin v. Scanlan, 28 Minn. 345, 348,
the court spoke of redemption and re-redemption by junior lienors as an
"auction sale among the creditors." In Ex parte Peru Iron Co., 7 Cow. 540,
555, the court said that the statutes "afford an opportunity for all the creditors
to bid upon each other." In North Dakota Horse & Cattle Co. v. Serumgard,
17 N. D. 466, 475, the court spoke of redemption as "a compulsory sale of the
interest acquired by the purchaser on foreclosure," and of the redemptioner
as "a statutory purchaser."
4SExcept he be very sure of the personal responsibility of his debtor, the

mortgagee cannot afford to let the property go to another for less than its
value. The purchase money is then all that he can get out of the land, unless
the sale is followed by a redemption and this is held to reestablish a lien for
the deficiency,-of which, more hereafter.

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nothing out of his real security except the amount of his bid.49
Clearly, in this situation, the course of wisdom is for the mortgagee
to bid the property up to what it is worth, and if the mortgagor is
irresponsible, the safest course is to bid the property up to the
amount of the debt and costs, figuring the chances with respect to
redemption as more important than the chances of collection on the
personal claim. To what extent the statutes have this effect upon
the mortgagee is necessarily a matter of conjecture, but it would seem
safe to assume that any mortgagee who has had experience in such
matters and any mortgagee who has legal advice will understand the
situation and act accordingly.50 It may be further observed that
whatever is accomplished in this direction by the redemption statutes
is accomplished without infringing the legitimate interests of the
mortgagee, since he is never compelled to bid the property up be-
yond what he considers it worth. In this respect, this device is pre-
ferable to appraisal and to the upset price.51
49How far this is true depends, again, on the effect which is given to a
redemption.
50The reaction of people in the mortgage loan business is indicated in
Handbook, 1922, p. 272, That this is the advantage of redemption from sale,
as compared with extension of time before sale, appears to be the conclusion
of the Commissioners, based on much study of the actual working of the pro-
cess. Handbook, 1922, pp. 271, 272.
Many cases contain judicial interpretations of the statutes as designed to
prevent sacrifice sales, among them, Fields v. Danenhower, 65 Ark. 392, 396;
Horn v. Indianapolis Bank, 125 Ind. 38I, 393; Pamperin v. Scanlan, 28 Minn.
345, 348; Ex parte Peru Iron Co., 7 Cow. 540, 555; Van Horne v. McLaren,
8 Paige 285, 293.
51Redemption from sale is not without its undesirable results. A lawyer
of wide experience testifies that it makes mortgagors careless. Handbook,
I92, p. 260. And it certainly caps the wall we have built to keep the public
away from the public sale. The best market for land is found among those
who desire it for immediate use, and to them, obviously, the redemption fea-
ture is prohibitive. Even the speculator would hardly be tempted, unless at a
very favorable price, to lay down his money today on a contract which can
be taken from him by any one of several parties within six months or a year
or two years. That gives too much speculative advantage to the other fellows.
Substantially, redemption statutes limit the sale to those who already have a
stake in the land. Perhaps it is a sufficient answer that the mortgagee is the
only one likely to buy in any case (Handbook, I92, p. 273), though this is to
say that this process, which is in form a public sale, we will deliberately con-

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842 MICHIGAN LAW l REVIEW
III.
Effect of Redemption from Sale.
A. Effect of Foreclosure Sale in the Absence of Redemptio

Statute. We propose consideration of the effect of a redempt
from foreclosure sale, but, for this purpose, we should have clear
in mind the effect of the foreclosure itself. In the absence of re-
demption statutes, a foreclosure by sale, whether judicial or extra-
judicial, is consumated at the moment the sale is closed.52 At that
moment the equity of redemption is extinguished, not only as to the
mortgagor and those who have succeeded to him as general owners,
but likewise as to all who are interested in the equity of redemption
by way of junior liens or incumbrances of any kind. Their right to
redeem the mortgage is extinguished and their estate in the land,
whether equitable or legal, is destroyed. The foreclosure does not
satisfy the mortgage debt except to the extent of the available pro-
ceeds of sale, but, whatever the amount of the proceeds, the lien of
the mortgage is extinguished or exhausted, so that the mortgage can-
not be again foreclosed against the land for the purpose of collecting
the unpaid balance of the mortgage debt.53 The only possible ex-
vert into a strict foreclosure with frills. Almost is one persuaded to go back
to strict foreclosure in its pristine form.
Missouri and Utah have interesting statutes (Mo. Rev. St. I919, ? 2222;
Utah, Comp. Laws, I917, ? 6951) which permit redemption upon a sale to the
creditor, though not upon sale to any other. This looks like a neat way to
get the desired effect on the creditor without discouraging other purchasers.
The statutes apply only to sales under power in a deed of trust. Missouri
has no other statute and Utah none applicable to sale under a power vested in
the creditor. The reason for thus confining it is not clear. Is it thought that
on judicial sale the mortgagor needs no protection, and that if a mortgagor
gives a power of sale to the creditor himself and authorizes him to purchase
at the sale it is his own folly?
52The exact time is difficult to fix. As to extinction of the equity of re-
demption, see note 38. But for other purposes, the foreclosure may become
effective at a different time, e. g. as to bar of another sale under the mortgage,
e. g. as to vesting title in the purchaser. As to the latter, confirmation and
execution of formal deed may be necessary.
53In the case of foreclosure for the whole of the debt secured, authority
is hardly necessary to this point. A contrary rule would be absurd. If a pur-
chaser thought the land worth less than the sum needed to satisfy the mortgage,

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ception to this rule is in the case of foreclosure of a mortga

part only of the debt secured, as where foreclosure is had for one
instalment of the debt or for interest in arrears when the principal is
not yet due. Even in these cases, in the absence of a statute, the
view prevails that the lien of the mortgage is exhausted unless, in
the case of a judicial sale, the decree has explicitly reserved a lien
for the balance of the debt.54 At the same time, of course, a fore-
closure sale vests a title to the property in the purchaser, whether he
be the original mortgagee, a person interested in the equity of re-
demption, or an entire stranger. The extent of this title and the
priority which it enjoys as against competing claims to the land need
not be here considered at any length. We may rest with the common,
though somewhat inadequate, statement that it is such title as the
mortgagor had at the time of the execution of the mortgage.
B. Effect of Redemption Statute in the Absence of a Redemp-

tion. Given a statute providing for redemption from a foreclosure
sale, the mere existence of this statute has an effect upon the fore-
closure, even before any redemption is made. Necessarily, the fore-
closure is in some sense suspended during the period of redemption.
Usually the title and right of enjoyment remain in the mortgagor or
his successors, the purchaser taking merely a lien upon the property
for his redemption money, with the right to receive a conveyance of
title at the expiration of the period of redemption if in the meantime
no redemption has been made.55 Elsewhere, it is held that the pur-
chaser immediately gets the title to the land, the statute merely rend-
he would have to subtract the deficiency before bidding. But this would dou-
ble the deficiency, so he would have to subtract again, etc. Only the mort-
gagee could buy for less than the debt, and, if he were disqualified by law,
none could. Apparently no one has had the temerity to argue for such a posi-
tion in the simple case, for we find no authority upon the point except in cases
of foreclosure for part of the debt and cases where a redemption from the
sale has intervened.
5437 L. R. A. 737, note.

55Usually no deed is executed until the expiration of the period of re-
demption. Usually the right of possession follows the title but this is not
necessarily so. Clarke v. Eltinge, 38 Wash. 376. Usually the one entitled to
possession is entitled to the rents and profits without accountability, but this
is not necessarily so. Danenhauer v. Dawson, 65 Ark. 129; Chase v. Ball,
79 Ind. 3II; Ruckman v. Astor, 9 Paige 517.

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844 MICIIIGAN LAW REVIEW'1
ering the title defeasible by redemption.56 These questions, in pa

controlled by explicit provisions of the statutes, in part depending on
judicial construction of the statutes, present a considerable subj
in themselves, upon which we need no longer dwell. We should,
however, note that no court goes full length with the theory of s
pension of the sale. The relations of the parties during the peri
of redemption are not the same as if no sale had taken place. Th
mortgage lien could not again be enforced against the land for
unsatisfied balance nor could a deficiency decree be collected out of it
at least so long as no redemption takes place.57 Nor could a pers
who previously had an equitable right of redemption now insist u
equitable redemption, e. g. by paying the amount of the mortg
debt, though less than the sale price.58 Whether the sale is suspen
in any other respects than those suggested above, concerning th
transfer of title and enjoyment to the purchaser, we shall have oc
ion to consider later.
C. Effect of Redemption by Junior Lienors. We are ready now

to consider the effect of a redemption from a foreclosure sale and we
beg leave, illogical though it may be, to first take up redemption by
junior lienors. Most of the existing statutes and the Uniform Act
56Burke v. Bank of Tennessee, 3 Head 686; McQueeney v. Toomey, 36

Mont. 282. This may be the case on one form of foreclosure while the other
result follows upon another form of foreclosure. Dananhauer v. Dawson, 65
Ark. 129.
57To hold otherwise would involve the same absurdity which is pointed
out in note 5I, supra.
58The equitable right to redeem the mortgage is certainly extinguished at
or before the sale, or its confirmation if confirmation is necessary. Note 38,
supra. No court has ever held that the statute keeps alive the equitable right
to redeem the mortgage, and many courts, comparing the equitable right of
redemption with the statutory right, have said that at the time of the sale,
the former ceases and the latter arises. Note 4I, supra.
We assume, of course, that the foreclosure is valid as against the person
seeking to redeem. The cases where this is not so merely reinforce our state-
ment. When there has been a foreclosure by suit in equity but some junior
lienor has not been made a party, such person still has his equitable right to
redeem, the mortgage being as to him unforeclosed, and he may exercise this
right even after lapse of the statutory period. To so redeem he must pay the
mortgage debt, though the land sold for less, and he need pay no more though
the sale price was greater. But the purchaser, having succeeded to the rights
of the owner-defendant, may insist upon redeeming the junior lien. And the

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empower such persons to redeem,59 though their right to redeem

usually postponed until the lapse of a period during which the mor
gagor and his successors in ownership have an exclusive right of r
demption,60 and where there are several junior lienors, they may
given the privilege of redemption in successive periods in accord
ance with their priority. When such a junior lienor redeems, he is
commonly subject, within a certain time, to re-redemption by others.
The terms of such re-redemption are usually the payment of the
amount paid on the prior redemption plus the amount of the orig-
inal lien held by the prior redemptioner.
What, then, is the effect of a redemption by a junior lienor ? He
might conceivably be given a lien for his redemption money in addi-
purchaser, as assignee of the senior mortgage, which is unforeclosed as to the

junior lienor, can foreclose against the junior lienor, unless redeemed. 36
L. R. A. (N. S.) 426, note. All these points are so entirely inconsistent with
everyone's understanding of the effect of redemption statutes that they offer a
demonstration that the statutes do not keep the equity of redemption alive.
59Usually the senior mortgagee has been held not qualified to redeem his
own sale even though, by virtue of a deficiency decree, he satisfied the letter
of the statute. On the other hand, it has been held that a junior lienor who,
as party defendant in the suit to foreclose the senior lien, obtained a decree
ascertaining the amount of his lien and directing its satisfaction out of the
proceeds of the sale, was not within the letter of the statute, e. g. "junior to
the judgment under which the property was sold." Cases are gathered in 35
L. R. A. (N. S.) 413.
The senior lienor should be excluded on the policy of the statute. Hervey
v. Krost, II6 Ind. 268. The junior lienor is clearly within the policy of the
statute, and its letter could easily be interpreted as including him. Not hav-
ing the same opportunity as the senior lienor to protect' himself by bidding
on credit at the sale, and having no better opportunity when his rights have
been ascertained by the decree than when they have not, the legislature could
not have intended to exclude him by the quoted phrase. Nor should it matter
if he has filed a cross bill in the suit asking that his lien also be foreclosed,
though the California court has drawn just this distinction. Frink v. Murphy,
2I Cal. io8; San Jose Water Co. v. Lyndon, I24 Cal. 518. Compare notes 78
and 80, infra.
As to whether a purchaser (usually the lienor himself) under the fore-
closure of a junior lien is, as to redemption from a sale under a senior lien,
a lienor or an owner, see Bristol v. Hershey, 7 Cal. App. 738; Butler v. Brown,
205 Ill. 6o6; Dickerman v. Lust, 66 Ia. 444; Buchanan v. Reid, 43 Minn. 172.
Would it not be desirable to settle these points in the Uniform Acts?
60Where this is not the case, both rights come into existence at the same
time. We find no statute giving the lienors a prior exclusive right.

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tion to his original lien, which though dormant since the sale
be held to be revived by his redemption. This is the solution i
cated in the case of Ogle v. Koerner.61 It was undoubte
sumed that the general ownership remained in the mortgagor, sin
would be absurd to confer it upon the purchaser who has been re
his purchase money, and the statute declared that upon such re-
demption "the sale and certificate [of sale] shall become null and
void."62 Further proceedings by way of foreclosing the redemption-
ers' liens would then be necessary.63
61140 Ill. 170. The positions stated were not necessary to the decision.
The redemption was made by a junior mortgagee whose position under the
Illinois statute was peculiar. Rev. St. I891, Cap. 77 (designed primarily for
sales on general execution) ? I8 gave redemption to "any defendant, his heirs,
administrators or assigns, or any person interested in the premises, through
or under the defendant," within twelve months, in default of which redemp-
tion, ? 20 gave the right to "any decree or judgment creditor," after twelve
and within fifteen months. A mortgagee who had not obtained personal judg-
ment could not qualify under ? 20, yet it is doubtful, upon a view of all its
provisions, whether his case was contemplated by ? I8, but it was so held.
(Cf. Seligman v. Laubheimer, 58 Ill. I24, holding the junior mortgagee a
"grantee" under the earlier form of ? I8. The court was determined that
the mortgagee should not be left out. Contra Van Renssalaer v. Sheriff, i
Cow. 62.) Then came the problem of the effect of the redemption. ? 20
authorized the redemptioner to levy execution under his judgment and sell, the
redemption money being treated as the first bid. But ? I8 provided that upon
redemption the "sale and certificate shall be null and void." By subrogating
the redemptioner to the purchaser's lien and holding that the sale was avoided
to the extent of reviving the junior mortgage though not to the extent of
reviving the senior mortgage, on which there was a deficiency still due,
the court put the redemptioner in substantially the same position as if he
had been cared for in ? 20, as he should have been. These Illinois cases
present a high order of judicial legislation.
Similar conclusions, though less fully stated, were arrived at in Powers v
Golden Lumber Co. 43 Mich. 468. The statute (How. Ann. St. I882, ? 8507)
was substantially ? I8 of the Illinois statute without ? 20. Michigan had at
an earlier date a special provision for redemption by junior mortgagees, more
nearly indicating this result. Johnson v. Johnson, Walker Ch. 33I.
Ponca State Bank v. Adebar, 35 S. D. 480, 484, same result, semble, al-
though statute provided redemptioner was entitled to sheriff's deed.
eS2This was also a desirable result in view of the fact that the owner was
not given by the statute a prior exclusive right of redemption or a subsequent
right to redeem the redemptioner.
63The case before the court was a suit to enforce these liens, but it was

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Usually, either by virtue of the express provisions of the s

or by judicial construction, redemption by the junior lienor t
to him the rights of the purchaser, ultimately giving him such title
as the purchaser would have got if not redeemed. Such is the ex-
plicit provision of ? 26 of the Uniform Act. This seems entirely
just, if the owner has been given a prior opportunity to redeem or a
subsequent opportunity to re-redeem.64 It is also convenient, as it
makes further proceedings by way of redemption or foreclosure un-
necessary. Furthermore, the solution is politic, in that it gives the
junior lienor a greater incentive to redeem, thus increases the prob-
ability that he will redeem, and therefore puts greater pressure upon
the senior mortgagee to bid the property up to its fair value. Like-
wise, it fits in with the general theory of making the redemptioner a
preferred bidder at the foreclosure sale.
A nice question arises as to the effect of the junior lienor's re-

demption upon the personal liability of the mortgagor on the debt
which was secured by the junior lien. The New York statute being
silent upon this subject, the court there held that the effect of the
redemption was merely what the statute indicated, the vesting of the
title in the junior lienor, leaving the debt wholly unaffected.65 The
supreme court of Minnesota, however, under a substantially similar
statute held that the redemption extinguished the debt to the extent
that the value of the land exceeded the amount paid to redeem.
They said: "The object of these provisions of the statute is to have
the property of the debtor applied, as far as it will go-as far as
creditors will voluntarily apply it-in satisfaction of the debts of the
mortgagor. * * * The proceeding [redemption] itself is the legal
appropriation directly to himself, by the creditor and lienholder, of
the property by virtue of his debt and lien, the equities and title of
others being extinguished. Such an appropriation of mortgaged prop-
erty by a mortgagee we term a strict foreclosure; and, as the author-
voluntarily dismissed. The decision was on the senior mortgagee's cross-bill

seeking a second foreclosure of his mortgage for the deficiency, which was
held demurrable.
64As indicated above, the owner is usually given a prior exclusive right.
Elsewhere the owner usually has a subsequent opportunity to re-redeem a
lienor redemptioner. Compare note 60.
65Van Horne v. McLaren, 8 Paige 285; Emmet's Admr. v. Bradstreet,
20 Wend. 50.

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ities already cited show, it operates as payment pro tanto of the

mortgage debt, although there has been no sale of the property, and
no determination by any means of the extent to which the debt is thus
satisfied.'66
The New York court argued that, if the redemption was held to
discharge the debt, redemption by junior lienors would be discour-
aged and the incentive to the senior lienor to bid the property up
would be diminished. It should be noted, however, that the court
was there asked to rule that the redemption discharged the debt in
toto, regardless of the value of the land, and the court did not con-
sider the possibility of taking the more restricted position adopted in
Minnesota. As to the latter, it is clear that the discouragement to
redemption is much less, so much less that it may be compensated by
what is gained in justice to the mortgagor. Certainly the redeeming
lienor has no "equity" to double satisfaction, first out of the hypothe-
cated land and then out of the general assets of his debtor. The
windfall which the New York rule gives him must be justified, if at
all, by considerations of policy. But it must be conceded that the
argument of policy is vigorous, and extends even to the rule of sat-
isfaction pro tanto, which may to a considerable extent discourage
redemption. The redemptioner may shrink from the injection into
his otherwise simple suit upon the debt of the troublesome issue of
valuation of the land, and may fear that the jury, out of sympathy
for the debtor, will make an exorbitant valuation. Also, this rule will
necessarily increase and complicate litigation, to the disadvantage of
all the interested parties and of society as well. We feel, therefore,
that the Iowa legislature found a solution of this problem which is
preferable to either of those which we have examined. It is there
provided that if the lienor files a statement of the amount which he is
willing to credit upon the debt, that amount only is credited, other-
66Sprague v. Martin, 29 Minn. 226. Acord, on the same reasoning, Work

v. Braun, I9 S. D. 437; but see Ponca State Bank v. Adebar, 35 S. D. 480.
The same result was reached on a very questionable theory of merger in Miller
v. Little, 37 N. D. 612, criticized in I6 Mich. L. Rev. 204.
The Minnesota court assimilated the redemption to a strict foreclosure
but we would prefer an analysis in terms of preferred bidding, that the policy,
though not the letter, of the statute made the amount of the redemptioner's
bid the amount he paid plus the excess value of the land, not exceeding his
debt. But see, as to last clause, Ponca State Bank v. Adebar, supra.

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wise the debt being wholly satisfied. In either case, the redem
tioner is subject to re-redemption upon payment of the amoun
which he paid to redeem, together with the amount by which
debt is satisfied.67 Giving to the redemptioner the power to fix
amount by which the debt shall be satisfied removes the factor of d
couragement to redemption, while the provisions as to re-redemp
will discourage under-valuation by him and give the other intere
parties an opportunity to protect themselves in case he does und
value the property. Incidentally, it eliminates the costly litigatio
the question of value. In every respect, we feel that the Iowa st
presents a superior solution of this problem, and we respectfully
gest that the Uniform Act should adopt these features of the Iow
statute, in place of the provisions of the last draft which adopt t
Minnesota rule.
D. The Effect of Redemption by Owner. All the existing

statutes and the Uniform Act provide for redemption by the mortga-
gor or his successor in ownership. They are usually given a priority
over lienors in a period during which their right of redemption is
exclusive, and they are not subject to re-redemption.
As to the effect of redemption by the owner, most of the existing

statutes say that it "annuls the sale," or use other language of like
import.68 But the situation is much the same where, as in several
states, the statute is silent as to the effect of the redemption, for
under such a statute the redemption must be held to annul the sale in
some respects, at least to the extent of defeating the title of the pur-
chaser. Indeed one can hardly imagine a redemption from the sale
67Code, I924, ?? 11784, II1788, II790. See also Kans. Rev. St., 1923,
? 60-3449, 3450; Ala. Code, 1923, ? 1OI48, ff.
68Typical phrases,-"Annuls the sale," Minn. Rev. Laws, 1923, ? 9630;
"The effect of the sale is terminated and he is restored to his estate," Cal. Code
Civ. Proc., 1923, ? 703; "Sale and certificate shall be null and void," Ill. Jones
& Add., Ann. St. I913, ? 6764; "Such deed [to the purchaser] shall be void
and of no effect," Mich. Comp. St., I915, ?? 12677, I4949. The pioneer statute
provided, "The said sale and certificate shall be null and void." N. Y. Laws
I820, p. I67.
In McQueeney v. Toomey, 36 Mont. 282, 296, the court attempted a dis-
tinction between the terms "sale and certificate shall be null and void," and
the terms "the effect of the sale is terminated and he is restored to his estate."
We leave the reader to guess which way the distinction ran.

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850 MllICHIGAN LAW REVIEW
by anyone, owner or lienor, which would not annul the sale

sense. On the other hand we cannot consider the sale annulled in
the fullest sense of the term unless we restore in every respect the
conditions existing before the sale, which would involve the restora-
tion of the mortgage lien for its original amount and the repayment
by the mortgagee of the money he has received.69 Naturally, no
court has ever given to the word "annul" this ample meaning.
It seems always to be understood that the owner-redemptioner
recovers, or preserves his old estate, instead of succeeding, as do
lienor-redemptioners, to the estate of the purchaser. In this respect
the redemption annuls the sale. But the burning question is whether
the redemption annuls the sale by way of restoring all, or part of, the
liens which previously existed, subject only to the satisfaction which
has been made out of the purchase money.
The argument for revival of liens is exceedingly simple. The
redemption statute suspends the operation of the sale and a redemp-
tion by the owner annuls the sale. The sale being suspended, the
liens which would otherwise have been extinguished by the sale, are
not extinguished but merely suspended, and subsequent judgments
which would have created liens had there been no sale will create
inchoate liens; and then, when a redemption annuls the sale, these
liens are revived, in the one case, or vivified in the other case.70 Not
69If any, on purchase by another. To whom he would pay it we will not

undertake to say. The whole suggestion is, of course, absurd and we make
it only to show that the word "annul" requires interpretation by the rule of
reason.
70See Allen v. McGaughey, 3I Ark. 252, 260, (but see note 79, in
Burgett v. Paxton, 99 Ill. 288, 296 (but see note 78, infra); Curtis v. M
lard, I4 Ia. I28, I30 (but see note 8I, infra) ; Daniels v. Smith, 4 Minn
II7, I21, I25; Rutherford v. Newman, 8 Minn. (47) 28, 30 (but see notes
78, 79, 80, 84, infra); Titus v. Lewis, 3 Barb. 70, 72; Wood v. Colvin, 5 Hill
228, 230; Bodine v. Moore, I8 N. Y. 347, 349; Flanders v. Aumack, 32 Ore.
19, 25 (but see notes 79, 8o, infra) ; DeRoberts v. Stiles, 24 Wash. 6II, 6i8.
That it is not essential to this theory that the statute declare the sale null,
is indicated by the Arkansas and Iowa cases cited above, based on satutes con-
taining no such terms. It would seem that particular terms of the statutes
have not been controlling except where they have been more specific, as in
Todd v. Oglebay, I58 Ind. 595, and Case v. Lanyon, 62 Kas. 69. Elsewhere,
it is rather the general frame of the statute than any particular terms which
have governed.

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always fully expressed and not always consistently applied, this

to be the reasoning underlying every case which holds liens to be
revived.71 As a literal interpretation of the statute, it is unimpeach-
able.
Viewed, however, in the light of the purpose of the statute it does

not seem so sound. We have seen that the principal purpose of the
redemption statute, and the only purpose which it serves in a super-
ior way, is the encouragement of adequate bidding at the sale. Ob-
viously this purpose is defeated by holding that liens are revived, or
that a deficiency decree will effectively charge the land. Putting our-
selves again in the position of the senior lienor on the eve of his
sale, we see that he might reason that a purchase by him at a bargain
price would be advantageous if no redemption took place, and that
it would do him no harm if redemption were made by the owner.72
Furthermore, the revival of liens must tend to discourage redemp-
tion by the owner, thus diminishing the threat from this preferred
bidder.73 Clearly a better psychological effect upon lienors would be
produced by a rule that redemption by the owner does not revive
liens but, contrariwise (unless the redemptioner be personally liable)
will put the land wholly beyond their reach. Nor would this be
71Sometimes an argument seems to be rested on the contrast between the

terms of the statute regarding redemption by the owner and those governing
redemption by a lienor. Hays v. Thode, I8 Ia. 51, 54; Powers v. Sherry, II5
Minn. 290, 294. But the assumption that the legislature intended a different
result by its different provisions is questionable. It may have intended in
both cases to give the redemptioner a title free from all claims which would
have been extinguished if no redemption had taken place, but considered dif-
ferent provisions necessary or desirable to produce that result. In the case of
redemption by a lienor it could not flow from mere nullification of the sale
(cf. note 6I) and a transfer of the rights of the purchaser would be the
simplest way to produce it. In the case of redemption by the owner, it may
have been thought that the simplest way to produce the result was to nullify
the purchaser's claims, all the other claims having been extinguished by the
sale. Makibben v. Arndt, 88 Ky. I8o.
72Fields v. Danenhower, 65 Ark. 392, 396; Anderson v. Anderson, I29

Ind. 573, 574 (same argument applied to effect of redemption by lienor).
73Hays v. Thode, I8 Ia. 5I, 55; Van Horne v. McLaren, 8 Paige 285, 294.
In both cases the argument was used with respect to effect of redemption by
lienor.

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unfair to lienors, for they cannot reasonably have expecte

the statute has promised it to them, any more than the p
a single sale of the property.T4 Furthermore, we feel that
toration of liens is a trap for the unwary. In reading a m
of these cases we have derived a strong impression that t
tioner commonly, and we think not unreasonably, makes h
tion in the belief that the statute has conferred upon him
lege of buying out the purchaser, not a mere privilege o
money for the advancement of others.75
We are aware that these arguments contemplate princ

effect of redemption upon the senior lienor. He is the like
and he should be subjected to pressure to bid the property
value, at least to the amount of his lien. Hence his lien should be
extinguished. But, if the property is worth more than the amount
of the senior lien, it is desirable to put some pressure upon the junior
lienors to bid the property beyond the amount of the senior lien.
Yet their position is quite different from that of the senior lienor, in
that they must pay out good money to the amount of the superior
liens before they can bid on the credit of their own debts. There
is, then, some hardship on them, at least a comparative hardship, in
holding their liens extinguished and we surmise that this has had
much to do with the decisions that their liens are revived.76 If the
junior lienors were given a prior exclusive right to redeem, the situa-
tion would be less embarrassing but no existing statute confers such
right. In this situation, we believe it better to hold all liens ex-
74"It is idle for the senior mortgagee to urge that the property redeemed
is in fact worth much more than the price for which it was sold at the fore-
closure sale. He was a competent bidder at such sale, and therefore had it in
his power to bid the property up to its fair cash value, and if he failed to do so,
a presumption arises from which he can not escape, that the property sold for
what it was reasonably worth. At any rate, the mortgagee under whsoe de-
cree the mortgaged property is sold, in the absence of all irregularity and un-
fairness in the sale, must be conclusively held to the price bid, as a full equiva-
lent for and satisfaction of his lien, and having received the proceeds of the
sale, he becomes a mere stranger to the property." Bailey, J., in Ogle v.
Koerner, 140 I111. I70, I80. See also, Cooper v. Maurer, 122 Ia. 321, 326.
75Seligman v. Laubenheimer, 58 Ill. I24, I27.
76See Powers v. Sherry, 115 Minn. 290, 295. And, since there is little
in the terms of the statutes to distinguish between senior and junior liens, this
feeling may lead to the decision that all liens are revived.

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tinguished than to hold all, or any, revived. The pressure ap

junior lienors is desirable and the hardship on them is by no
shocking.
We cannot make of the land a miraculous pitcher, and the a

to do so will merely discourage redemption, encourage under
and defeat the purpose of the statute.
If it be objected that these views do violence to the statutes, we

point to the fact that we would still hold the sale suspended by the
statute and annulled by a redemption in a very material sense, viz.
that the purchaser does not get title unless and until the period of
redemption expires without a redemption being made. Nor, as we
have seen, does any court go full length with the theory of suspen-
sion and annulment, treating all the interested parties in all their
relations as if no sale had been made. In truth, to hold liens ex-
tinguished is merely to confine the theory of suspension and annul-
ment a little more closely than some courts have confined it. Further-
more, the view contended for gives fuller effect to the provision of
the statute that the owner may redeem upon payment of the sale
price, for the opposite rule requires the owner to pay the mortgage
debt in order to redeem effectually.77
The decisions upon this question have been far from harmonious,
nor can the results be stated in two simple propositions pro and con.
The question we have put is really a number of questions, the answers
to which are not necessarily the same.
One must, of course, distinguish between restoration of prior liens

and accrual de nova of a judgment lien upon redemption by the
judgment debtor. The land in the hands of the redemptioner is
liable for his debts like any other land and therefore if the redemp-
77Seligman v. Laubenheimer, 58 Ill. 124, I27. In Fields v. Danenhower,

65 Ark. 392, the mortgagee, who had bought at his foreclosure, carried the
opposite view to its logical conclusion and claimed that, in order to redeem
him, the mortgagor must pay the deficiency as well as the sale price. The
court assumed that this would be a reasonable position if the redemption
would revive the lien but held that it would not.
Some statutes have provided that, in case the purchaser has a lien on the
land, that also must be paid by lienor redemptioners. See Simpson v. Castle,
52 Cal. 644, showing the history of this provision in their statute, and War-
ren v. Fish, 7 Minn. 432, interpreting theirs.

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MICHIGAN LAW REVIEW
854
tioner is a judgment debtor (as, for pertinent illustration

ficiency decree) the judgment may create a lien upon the
the moment of redemption. But the accrual of such a lien
ly different from the restoration of a mortgage lien or a
lien antedating the redemption.
Confining the inquiry to the restoration of liens, it is

distinguish between senior liens and junior liens, restoring the latter
but not the former,78 and, with respect to each class, a further dis-
tinction is suggested,-as to senior liens, a distinction between mort-
gage liens and judgment liens, the latter being restored but the former
78The "senior" lien referred to is that of the person who prosecutes, or

the senior of the persons who prosecute, the proceeding leading to the sale.
It is immaterial that there may be other liens senior to this.
There is little in the langugae of any of the acts suggesting such a dis-
tinction. From the provisions for redemption by junior lienors, it may be ar-
gued that, when the owner exercises his prior right to redeem, their liens must
be revived in order to avoid defeating their statutory rights. Powers, v.
Sherry, II5 Minn. 290, 295. To this it may be added that the junior lienors
are at a disadvantage, as compared with the senior lienor, in bidding at the
sale and therefore extinction of their liens is more severe on them than the
same treatment is upon the senior lienor, while, at the same time, there is less
hope of success in forcing them to bid. Contrariwise, it is argued that such a
distinction makes junior liens superior to senior liens, which in general is not
a proper thing to do. Flanders v. Aumack, 32 Ore. I9, 27. We believe the
distinction reasonable and its result preferable to holding all liens revived,
though it is less acceptable than the view that all liens are extinguished, and
it clearly does more violence to the language of the statute than either of the
thoroughgoing rules.
This distinction seems to be embodied in the Minnesota cases, with an open
question on the sub-distinctions covered by the next two notes. See Ruther-
ford v. Newman, 8 Minn. 47; Loomis v. Clambey, 69 Minn. 469; Powers v.
Sherry, I I5 Minn. 290; Sucker v. Cranmer, I27 Minn. I24. In Daniels v.
Smith, 4 Minn. 172 and Rutherford v. Newman, supra, the revival theory
was stated in very broad terms. But this was not necessary to the decision
of those cases and it cannot stand with the later decisions.
This distinction may also be the clue to the Illinois law, though nothing
has ever been said pointing this way. See Burgett v. Paxton, 99 Ill. 288;
Easter v. Holcomb, 22I Ill. App. 485; Barry v. Harnesberger, I48 Fed. 346.
See also Butler v. Brown, 205 Ill. 606. The explicit distinction between senior
and junior liens in Ogle v. Koerner, note 6I, supra, hardly applies since the
redemption there was made by the junior lienor which gave him a much
stronger case.

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not;79 as to junior liens, a diversity between a passive

one who, as defendant in a suit to foreclose the senior lien, files a
cross bill and obtains a decree enforcing his lien, the latter being
classed with the senior lienor.i1 A broad distinction has been taken
79"A mortgage is a specific lien, which attaches by virtue of the contract

of the parties concerned; but the lien of a judgment is general, and attaches
by operation of law, as a sequence of its rendition. Foreclosure is a remedy
by which the property covered by the mortgage may be subjected to sale for
the payment of the demand for which the mortgage stands as security, and,
when the decree is had and the property sold to satisfy it, the mortgagee has
obtained all he contracted for; but, if there is also a personal decree against
the mortgage debtor, this becomes, from the date of its docketing, a general
lien upon his real property, as in case of a judgment." Wolverton, J., in
Flanders v. Aumack, 32 Ore. I9, 29. While the court did not say so, we un-
derstand this distinction as applying only to senior lienors. This was all that
was required by that case and no Oregon case is inconsistent with this view.
We cannot believe that the court would hold broadly that judgment liens are
revived by redemption but mortgage liens are not.
But we believe the reasoning of the court begs the question. As to the
mortgage lien, it appeals to the common law principle that foreclosure exhausts
the lien, ignoring the fact that it is competent for the legislature to revive it
upon a redemption and that the very question before the court is whether it
has not done so. And this circular reasoning is equally applicable to the judg-
ment lien, which also, in the absence of redemption, is exhausted by sale,
though the judgment is not discharged unless satisfied. Danford v. Lindsey-
178 Ia. 834, 836; Titus v. Lewis, 3 Barb. 70.
But the distinction seems to be firmly fixed in the Oregon law. Willis v.
Miller, 23 Ore. 352 (mortgage lien not revived for deficiency); Flanders v.
Aumack, 32 Ore. I9 (judgment lien revived for deficiency); Kaston v. Storey,
47 Ore. i5o; 80 Pac. 217 (judgment against mortgagor subsequent to fore-
closure sale, followed by grant by the mortgagor and redemption by the
grantee-dates in the official report are obviously wrong-held that the judg-
ment creditor could sell under execution).
This distinction might also be thought to be involved in the Minnesota
cases, cited in note 78. It is entirely consistent with the decisions on their
facts, and the language of the court in Sucker v. Cranmer suggests it. The
difference between this interpretation of the cases and that suggested in note
78 concerns only the case of the senior judgment lien, which has not been
passed on by the court.
The distinction may also be invoked in the Arkansas cases. Allen v. Mc-
Gaughey, 3I Ark. 252; Fields v. Danenhower, 65 Ark. 392; Handford v. Ed-
wards, 89 Ark. I5I, though the cases may rather involve a change of front.
80Williams v. Wilson, 42 Ore. 299; Kaston v. Storey, 47 Ore. I50, I53.
Putting these two cases with Flanders v. Aumack, we understand the theory

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between redemption by tlle mortgagor or judgment debtor and

demption by a grantee,s1 and, of course, insofar as the latter is
cerned with restoration of judgment liens, we must draw distinc
with reference to the date of the grant and the date of the docketi
of the judgment, or whatever else it is that marks the genesis
judgment lien.82 Such distinctions have been drawn without an
basis in the express provisions of the statutes: but, again, under
similar statutes, these distinctions, or some of them, have been re-
jected or ignored: and, rejecting a distinction, a court may hold either
way,-that liens are revived in both cases, or in neither. We cannot
make out to our satisfaction that there is any one state where the
to be that, under the stated circumstances, the senior mortgage lien and the
junior judgment lien were merged in the decree and exhausted by the sale,
never to be revived, while in other cases liens which would be extinguished
by a completed sale are merely suspended by this inchoate sale and are restored
when the sale is annulled.
The point is related to that concerning the right of such junior lienors to
redeem. Note 59, supra. Here, as there, it might be extended to embrace
the junior lienor who has not filed a cross bill but whose rights are never-
theless ascertained and provided for in the decree. Here, as there, we think
the distinction overlooks some very practical differences between senior and
junior lienors. And here, as with the distinction taken in Flanders v. Au-
mack, the argument begs the question of revival by the statute by simply as-
suming that there is no revival in the one case though there is in the other.
The Minnesota decisions are not inconsistent with this theory, the court
never having passed upon the case of the junior party to a foreclosure suit,
but we find nothing in the opinions even remotely suggestive of it.
81The distinction is, of course, in favor of the grantee. It is clearly un-
sound as it violates the basic principle that a purchaser who cannot stand on
some doctrine of bona fide purchase, as this one clearly cannot, takes the title
and rights of his vendor. Flanders v. Aumack, 32 Ore. I9, 25. The statute
suggests no such distinction. Titus v. Lewis, 3 Barb. 70, 73.
The distinction was squarely stated in Harms v. Palmer, 73 Ia. 446, 449,
and Moody v. Funk, 82 Ia. I, 3, but the later Iowa cases have retreated to
the sound position that no liens are revived by redemption but the land in the
hands of the redemptioner may be, from the moment of redemption, subject
to the lien of prior judgments, Cooper v. Maurer, 122 Ia. 321, 327; Witham
v. Blood, 124 Ia. 695; Henry v. Maack, I35 Ia. 84; Danford v. Lindsey, I78
Ia. 834. McCreary v. McGregor, I83 Ia. 732, and Wise v. Laird, I99 N. W.
487, which might at first blush appear contrary, are cases where the legal
rights conferred by the statute were controlled by equitable principles of sure-
tyship arising upon the relations of the parties. Cf. notes 85 and go, infra.
82Flanders v. Aumack, 32 Ore. 19, 30.

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redemptioner is subject to all the liens which would have exist

had no sale taken place, save for the actual satisfaction made fr
the purchase money,-in other words, where the sale and redemp
tion are consistently treated as mere payment of lien debts.'3 No
are we entirely satisfied that there is any state where the redempti
takes free from all liens which would have been extinguished if
redemption had been made and title had gone to the purchaser,-
other words, where the redemptioner simply succeeds to the rights
the purchaser.84
Few, if any, courts have committed themselves on all the po
of distinction. But one thing is wholly clear to us, that the
much conflict of authority and much uncertainty in the law. It
be that we overstate the case, but we are so deeply impressed wit
the uncertainty of the law that we fully expect that readers who ar
more familiar than we with the law of their own states, and pos
less embarrassed by knowledge of the decisions of other courts, will
disagree with some of our conclusions, perhaps insisting that the law
is quite clear. But, if the law of any state, or of all, is clear, there
is much variety in the laws of the several states,-that is beyond
doubt. Nor is it simply a case of variation in the statutes. The
statutes vary and this makes it difficult to derive from the cases the
83We do not find any case anywhere in which, after the foreclosure of a
mortgage, a redemption has been held to revive the senior mortgage lien for
a deficiency. There are, however, several courts which are not committed to
the opposite of this, and which have revived senior judgment liens, e. g. New
York, notes 35, 37, 70. In such a court, the claim of the mortgagee could not
logically or reasonably be denied. See note 79.
Collections of cases will be found in notes in 67 Am. St. Rep. 5IO; 47
L. R. A. (N. S.) 1048; 5 A. L. R. 145.
84If we understand the recent Iowa cases, they come to this. Iowa pre-
sents an interesting history, first asserting very broadly the doctrine of revival
of liens (see notes 70 and 7I), then whittling it away, and finally discarding
it altogether (note 8i). The Minnesota cases present the whittling process
incomplete. Notes 78 to 80. The earlier cases were under the acts of I85I
(Rev. St. I851, Cap. 71, ? II2, ff., Cap. 85, ? 10, ff., while the later ones were
under the act of I866 (Gen. St. I866, Cap. 66, ? 288, ff., Cap. 8I, ? I3, ff., ? 3I.
These statutes differed much in some respects but we cannot see that they
varied in any respect material to our questions. An attempt to reconcile the
cases on the basis of the terms used by the several statutes in declaring the
effect of the redemption would run exactly counter to the distinction attempted
in McQueeney v. Toomey, note 68.

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general principles of interpretation. Yet we cannot say that there

are no general principles and that each statute and the decisions upon
it are isolated from the others. In spite of their variations, all the
statutes have much in common, in purpose and general frame, and
the courts frequently and quite properly cite as authority the decis-
ions of other courts upon statutes not identical with their own.
There are indeed general principles of statutory redemption, as there
are general principles concerning statutes of frauds and statutes of
limitation. The trouble is that the courts are not agreed, and some
are none too clear, as to what these principles are. But the difficulty
is not general. Through most of the problems that arise, the law runs
as clear as one could expect. In the jargon of the weather man, the
disturbance is central over the effect of redemption by the owner.
We believe the fault to be that of the legislatures rather than the

courts. If the lawmakers intended to revive liens, this was a mis-
take of policy, a vain attempt to pay everyone out of an inadequate
fund which would necessarily tend to defeat the primary purpose of
the statute, and at the same time an error in draftsmanship in fail-
ing to make this intent clearer. If they intended to extinguish liens,
they chose inept words to express their purpose. In either case, they
gave the courts the embarrassing task of interpreting statutes which,
in their general plan and some of their specific provisions, point in
one direction, while in other provisions, especially where they purport
to annul the sale, they point in another direction. Out of that situa-
tion, confusion was bound to arise. The fact that able lawyers
drafted these statutes merely proves again that legislation is the most
difficult branch of our art. But now, with the advantage of a full
century of experience with such legislation, it would seem that we
ought to be able to improve upon the work of the pioneers.
Turning now to the Uniform Mortgage Act we find, in Sec. 26,

this clause: "if redemption be made by the mortgagor, it annuls the
sale;" the word "mortgagor" being defined in Sec. 35 as including
"any person succeeding to the rights of the mortgagor in the premises
or part thereof but not including a lienor."85 In view of the cases
85A question is here suggested as to redemption by a mortgagor or assum-

ing grantee who has sold the land but remains personally liable on the mort-
gage debt. Such a one, if he has a right of exoneration by his grantee, has
a lively interest in securing sale at an adequate price and in recapturing the

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which we have examined would not this seem an unfortunate pro-

vision to insert in a statute designed to produce uniform mortgage
law ? Surely we cannot be wrong in assuming that each court in con-
struing this language in the Uniform Act would look to the cases in
which it has interpreted the same or similar language in the now ex-
isting statutes.
Even might a court look to its prior decisions interpreting a

statute which contained no similar terms, for such statutes suspend
and annul the sale in some respects and have thus presented much
the same problems as would arise under the Uniform Act. And
always an argument of some force could be made for leaving the old
and familiar rules except so far as the terms of the new statute
clearly required a change, to say nothing of the danger that the old
rules would be enforced without any thought to the point that the
innocent looking terms of the new statute might start an argument
to other conclusions. Nor do we feel that the Act will present a
simple problem in states which have had no redemption law. The
two major arguments, on the one side, suspension and annulment
excess value in case of sale at a sacrifice. In Higgs v. McDuffie, 8i Ore. 256,

it was held that the mortgagor-grantor who was defendant in the suit and
against whom decree was rendered, had a right to redeem because he was a
"judgment debtor," the statute providing for redemption by the "judgment
debtor or his successors in interest." See also Yoakum v. Powers, 5I Cal. 539
and Harvey v. Spaulding, I6 Ia. 397, dealing with execution sales. It is of the
essence of these decisions that one does not need to have an interest in the
land to be a redemptioner. On these authorities, the mortgagor could redeem
under the Uniform Act from sale under a power, being precisely named in the
statute, and so, perhaps, could any intermediate grantor, whether personally
liable or not. See also ? 27 of the Act. Yet one wonders what it would
profit such parties to redeem if the redemption merely annuls the sale. Witham
v. Blood, I24 Ia. 695, 702. But in Wise v. Laird, I99 N. W. 487, (Iowa, 1924
on a bill in equity filed by the mortgagor-grantor who had paid the deficienc
decree, the court applied principles of suretyship and held that the plaintif
upon redeeming should be subrogated to the senior mortgage to secure reim-
bursement from his grantee and the latter's successors. Cf. note 90.
Following the case of Higgs v. McDuffie, supra the Oregon legislature
amended the statute denying redemption to a judgment debtor who did not
own the land, except when he was liable for a deficiency. Laws I919, Cap.
280. Yet they left in nubibus the effect of his redemption.
Would it not be desirable to make the Uniform Act more specific on these
points ?

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86o MICHIGAN LAW REVIEW
based on certain provisions of the statute, and, on the other side,

justice, the policy of the statute and certain other of its provisions,
would each be so vigorous that the effect of redemption would be
doubtful until settled by the courts and the several courts might settle
it differently. Only the fact that the Act is copied from the Minne-
sota statute, bringing Minnesota decisions into play, could save the
situation. But we doubt whether these decisions will be found to
answer all questions.86 And is it desirable to put out for national
consumption an act which reuires every lawyer from Maine to Cali-
fornia to arm himself with the Minnesota cases in order even to begin
to understand the law ?
If the general plan of the present draft of the Act is to be re-

tained, we believe that ?26 should be rewritten. Even at the expense
of many words, it should explicitly answer the various questions
which it now leaves open. What these explicit provisions should be
is primarily a question of legislative policy as to the results which are
desired, and secondarily a question of draftsmanship. We have ex-
pressed ourselves fully on the first question and need not repeat. We
may be excused from attempting to answer the second while the
first remains undetermined.
V.
Proposed Changes in the Uniform Mortgage Act.
It would be ungracious of us to criticize the proposals of the

Commissioners without venturing proposals of our own for the
Commissioners to shoot at. We make bold, then, to propose and
defend one scheme, ignoring all the possible compromises and com-
binations of which the subject is susceptible.
We believe that redemption by the owner should extinguish all
86The Minnesota cases seem to cover every problem which can arise under
the Uniform Act itself, governing only sales under a power. The Commis-
sioners have, however, incorporated the same provisions in their tentative draft
of an Act on Foreclosure in Court (Handbook I924, p. 469) and they rec-
ognize the desirability, wherever the Uniform Act is adopted, of bringing the
provisions on execution sales into harmony with it. Handbook, 1922, 275.
In both these directions, the Minnesota cases seem to us to fail. Notes 78,
79, 8o, 84, supra.

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REDEMPTION FROM FORECLOSURE SALE .86I
liens which would have been extinguished had no redemptio

place, and this regardless of whether such owner is persona
on the mortgage debt. The simplest way to accomplish this
to declare that upon redemption by the owner he shall acqu
title as would have gone to the purchaser if no redemption h
place. One provision would then cover both redemption by
and redemption by owners, and that, a provision which has
caused the trouble which has been engendered by statutes which
the sale.87 As a redemption under such a provision would ext
junior liens as well as the senior lien and, if anterior, defeat the
right of junior lienors to redeem, we propose a change in the order
of redemption. Let lienors have the first opportunity to redeem and
re-redeem and finally, after the time for redemption by lienors has
passed, let the owner redeem the purchaser or re-redeem a prior
lienor-redemptioner, upon the same terms that lienors redeem, or re-
redeem. Then, for all cases of redemption by lienors and re-redemp-
tion of lienor-redemptioners, we would adopt the substance of the
Iowa law, permitting the lienor-redemptioner to declare the amount
by which his debt shall be satisfied and making this declaration con-
trol the sum which is to be paid upon re-redemption. This scheme
has the fault of novelty but it has obvious analogies in the doctrines
of equity and it is, in most of its features, substantially the Iowa
plan.88
87That a provision transferring the rights of the purchaser to the re-

demptioner is not a guaranty against problems of interpretation, is demon-
strated by Stryker v. Dunn, 72 Colo. 45, and Ponca State Bank v. Adebar, 35
S. D. 480, 484, both denying the title of the purchaser to a lienor redemptioner
in the face of a statute which purported to give it to him. But the latter case
is mere dictum reported in such way as to suggest that the terms of the statute
were not before the court, and the latter was based upon a very imperfect
statute, the meaning of which is doubtful and the effect of which, if interpreted
as giving title to the redemptioner, would have been unjust. Cases cited with
Stryker v. Dunn in note, 26 A. L. R. 435, 444, are not in point, while the
note shows an array of strong cases giving effect to the statutes.
88Code I924, ?? 11772, ff. The recent Iowa cases give the owner redemp-
tioner substantially the title of the purchaser. Note 84, supra. With this in-
terpretation of the statute, the only radical departure from the Iowa law
which we propose to make lies in giving the prior right of redemption to
lienors. The Iowa statute gives the owner a year in which to redeem, which
right is exclusive during the first six months and the last three months. The

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From the point of view of the senior mortgagee, such a law w

be entirely fair. It would give him a remedy somewhat bette
the good old process of strict foreclosure, for he could apply t
upon his debt (unless another bid it up to the amount of his d
which he could not complain) and he could himself determin
amount by which his debt would be satisfied, viz. by the amount
bid. If the property is irrevocably taken from him by redem
he gets in cash the value which he has put upon it. All the s
acknowledge the fairness of this by permitting this result in the
of redemption by a lienor.
From the point of view of junior lienors, such a statute wo

more generous than any existing statutes, in that they cann
barred of their redemption by the owner. This right of redem
so guaranteed to them, amounts, in the language of the Min
court, to a privilege of strict foreclosure of their liens in th
of their priority, and not subject, as they may be upon a rev
liens, to a prior claim for the deficiency upon the senior mo
Whether this privilege is worth more or less than a revival o
upon redemption by the owner will depend upon the circums
of each case, but in any case it is all that the junior lienors ca
onably claim.
We believe our plan particularly good with respect to adjustments

between senior and junior lienors. As we have seen, it is difficult to
take care of both under existing statutes. The senior mortgagee
should be subjected to pressure to bid to the amount of his lien and
therefore his lien should be extinguished. It would be desirable to
subject the junior lienors to pressure to bid beyond the amount of the
senior lien, but they are at a disadvantage as compared with the senior
lienor and one therefore hesitates to subject them to the same pres-
sure. Our plan puts pressure on the senior lienor at the time of the
lienors have the right to redeem after six and before the expiration of nine
months. The owner may redeem a lienor redemptioner.
The Kansas law is substantially the same as that of Iowa. The statute
explicitly negatives revival of liens. Kans. Rev. St. I923, ? 60-3439, ff. Case
v. Lanyon, 62 Kans. 69; Sigler v. Phares, 105 Kans. II6.
A number of statutes provide concurrent periods of redemption for own-
ers and lienors and make lienor redemptioners subject to re-redemption by the
owner. Cal. Code Civ. Proc., I923, ?? 702, 703, and statutes copied from that.

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sale and puts pressure on the junior lienors during the peri
their right of redemption, but reserving to them the advantage
flow from further time with an opportunity to finance a redem
If under these conditions they can make nothing out of their se
it is because there is nothing there.
From the point of view of the owner who is not personally

this statute would be more generous than those existing statutes
which are construed to revive prior liens. It may be less generous
than those statutes which have been so construed as to enable the
redemptioner to wholly exclude junior lienors, in that it gives the
lienors the first opportunity to redeem. But we believe that in this
respect our proposal is quite just, and we believe that a conviction
that junior lienors should not be redeemed out of the property has
been a factor in the decisions that liens are revived upon redemption
by the owner. If it be objected that under this scheme the junior
lienors might redeem the property up to such a figure as to prohibit
redemption by the owner, we would answer that this is merely be-
cause his property has been applied in satisfaction of the liens upon
it, which surely is not wrong.
With respect to the mortgagor or a grantee who is personally

liable, much the same arguments could be made pro and con, as in
the case of the owner who is not personally liable. If it be objected
that the redemptioner who is personally liable should not be able to
get the land free from liens, we would think that, after we have put
the property through a sale surrounded by every device for en-
couraging bidding by the lienors and have then subjected it to redemp-
tion by the junior lienors at their own valuation, it is fair to say
that we have wrung out of the property all the value which the
lienors can reasonably claim from it. Nevertheless, if the lienors re-
duce their claims to judgment against the redemptioner, they may
yet see satisfaction.
A troublesome situation is presented when the ownership of the

property is divided. If it is divided among persons each owning part
of the land in severalty, a sale of the land in similar parcels makes
possible independent redemption by each owner, but where the di-
vision of ownership is along other lines, as between co-tenants or be-
tween life tenant and reversioner, and in all cases where the land is

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sold in one parcel, partial redemption could not be conveniently

worked out.89 Each part owner, then, must be given the right to
redeem the whole and it is difficult to work out for this case successive
periods of redemption, as is done with successive liens. Whatever
effect we give to the redemption, whether nullification of the sale in
the fullest sense or succession of the redemptioner to the rights of
the purchaser, the result is unsatisfactory. In the former
case, the party not redeeming enjoys a windfall at the
expense of the redemptioner, and the prospect of this must
be a serious discouragement to redemption by either. The other
solution invites a race of diligence, with somewhat unfair rewards to
the winner.90 If we had to choose between these, we would not hesi-
89Redemption of parcels sold separately would probably be permitted

everywhere without explicit provision. Tinkcom v. Lewis, 2I Minn. I32. The
New York statute of I828 allowed the owner of an undivided interest to re-
deem for a proportionate part of the price (II Rev. St., 1828, p. 37I, ?48)
this provision is still retained in the law of New York and several other
states. Such proportional redemption compels the purchaser to take an undi-
vided interest at a proportional price although everyone knows that an undi-
vided interest is not worth, either for use or sale, a proportionate part of the
value of the fee simple. This is unfair to the purchaser unless we can say
that he should have taken account of this possibility when he bought, and, if all
purchasers took account of it, we would have another quite unnecessary im-
pediment to bidding.
90No court has given the redemptioner the title of the purchaser. Butler
v. Brown, 205 Ill. 606, took the other horn of the dilemma. Other courts have
worked out the problem by statutory nullification of the sale plus equitable
subrogation of the redemptioner to the lien of the purchaser as a means of
securing contribution. Union Nat. Bank v. McConaha, 14 Ind. App. 82; Moore
v. Smith, 95 Mich. 7I; Kopp v. Thele, 104 Minn. 267; Powers v. Sherry, II5
Minn. 290.
For almost all situations the effect of redemption is purely a problem in
statutory construction, but no one can doubt that in some cases, by reason of
the relations of the parties, it may be controlled by overlying principles of
equity. Thus if a junior mortgage was held in trust and the trustee redeemed
from a sale under a prior mortgage and acquired title thereby, all would agree
that he held the title in trust for his cestui. So equitable principles of surety-
ship may over-reach the rule of the statute. Note 85, supra. So in our pres-
ent case, there being a confidential relation of a sort between the parties and
one being compelled to make a payment the benefit of which enures to the
other, equity should prevent the unjust enrichment which the rule of the stat-
ute would produce. See generally, on contribution between cotenants, Tiffany,
Real Property (2d ed.) ? 200.

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tate to accept the latter, but the problem is susceptible of solut

equitable principles and we would propose a statutory provision by
which the party not redeeming might contribute to the expense of
redemption and participate in its benefits.91
There is one more point of view from which one may consider
the effect of our proposals. If, prior to the foreclosure sale, the
mortgagor has sold the land subject to outstanding liens, the pur-
chaser, whether he assumed the payment of the liens or not, presum-
ably paid for the land its value less the amount of the liens. Under
these conditions, the mortgagor has a well recognized equity of ex-
oneration and, upon paying the debts, is entitled to be subrogated to
the liens. If, then, upon foreclosure and redemption by the grantee,
the liens are entirely extinguished without the debts being satisfied,
the mortgagor's equity of exoneration seems to be destroyed, and this
might be thought to found an argument in favor of the revival of
liens. We believe, however, that the mortgagor will find his best
means of protection, aside from his privilege of paying the debts
before foreclosure or bidding in the property at the sale, in arrange-
ments which will cause the foreclosure sale to the produce the best
price, for these will be working all the time while redemption by the
grantee is an off chance.92
We submit that our proposals secure in the highest degree the ob-
ject of encouraging bidding at the sale. They do this by making re-
demption more inviting to the redemptioners and therefore more
imminent to the bidders, and by making the effect of redemption
upon the bidders more drastic. We submit that our proposals fully
observe the natural equities among the various interested parties.
And we submit that they leave the minimum of doubt as to the effect
91 A statute provision would not be absolutely necessary. Savage v. Brad-

ley, I49 Ala. I69; Smith v. Osborne, 86 Ill. 606; Eckert v. Schmitt, 6o Wash.
23. Tiffany, op. cit. ? 201, on acquisition by cotenant of adverse title. But it
might be advisable in order to remove doubts.
92A general provision for redemption by the "mortgagor and persons suc-
ceeding to the rights of the mortgagor" might give the mortgagor-grantor,
and even intermediate grantors, the right to redeem. Note 85, supra. And
the provision giving such redemptioner the title of the purchaser would render
such right of redemption beneficial without the necessity of resorting to a suit
in equity. If we were working out such a statute in detail, we would consider
specific provisions for these situations.

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866 MICHIGAN LAW REVIEW'
of a redemption, either upon the title to the land or the debt

to lienors.
If it be objected that our proposal is wholly novel and that it is

the function of the Uniform Act merely to codify existing law, chang-
ing it only in so far as is necessary to remove conflicting rules, we
would answer that codification in a strict sense is impossible in a
field which presents so many conflicting views as that before us.93
We also believe that the objection is less forceful when the existing
law is wholly statutory and half our states have no such law. And
we understand that the commissioners have more and more abandoned
the strict ideal of codification and are now entering with some
freedom upon the beneficent work of law improvement.
APPENDIX
FOURTH TENTATIVE DRAFT OF UNIFORM MORTG

SECTION I7. CERTIFICATE OF SALE, RECORD, EFFACT, AS EVI
sheriff making the sale, even after his term of office has expir
cessor in office, shall execute to the purchaser a certificate cont
(i) A description of the mortgage;

(2) A description of the premises sold;
(3) The price paid for each parcel sold;
(4) The time and place of the sale, and the name of the pu
(5) The time allowed by law for redemption.
Such certificate shall be recorded within twenty days after

when so recorded, upon expiration of the time for redemption
conveyance to the purchaser * * *
SECTION 21. WASTE DURING REDEMPTION PERIOD, RECEIVER. (i) Dur-

ing the period of redemption the mortgagor shall not commit waste, and the
purchaser shall have such action or remedy for waste, including injunction, as
he would have as owner of the premises. During such period the mortgagor
shall keep the premises in repair, shall use reasonable diligence to continue to
keep the premises yielding an adequate income, and shall out of the rents and
profits pay current taxes before a penalty accrues and interest due on any
93If codification is in order, the model for the act should be, not the Minne-
sota statute, which, with all its virtues, is quite distinctive, but the California
statute, which has been widely copied through the western states. But the
choice of the Minnesota model was wiser because it is a better act.

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prior incumbrance, keep the premises insured for the protection of th

chaser, and in case of a leasehold pay the rent and other sums due und
lease, and failure to do so shall constitute waste. In case of danger of waste
a receiver of the premises may be appointed to take possession of and preserve
the property. After performing the duties above required of the mortgagor,
and paying the expenses of the receivership, the receiver shall pay to the mort-
gagor the balance of the proceeds.
(2) If a receiver might be appointed under this section, but is not ap-
plied for, the purchaser is entitled to receive the rents and profits of the prem-
ises from the person in possession as if he were a tenant, and if the premises
be unoccupied, may take possession, and shall be subject to the same duties
and liabilities for the care of the premises and for the application of the rents
and profits as would a receiver.
SECTION 22. TAXES, ETC. PAID BY PURCHASER, REPAYMENT. During the

period of redemption, the purchaser may pay any taxes on which any penalty
would otherwise accrue, the premiums upon any policy of insurance necessary
to keep the buildings upon the premises insured for protection of the pur-
chaser, any interest in default upon any prior incumbrance, and in case of a
leasehold, any accrued rent and any other sums due under the lease; and the
sums so paid, with interest at the mortgage rate after due, shall be a part of
the amount required to be paid to redeem from the sale. Such payments shall
be proved by the affidavit of the purchaser, or his attorney, which shall be
filed in the recording office, and a copy thereof forthwith furnished to the
sheriff at least ten days prior to the expiration of the mortgagor's redemption
period.
SECTION 23. REDEMPTION BY MORTGAGOR. (i) Within [one year] after

the sale, being the mortgagor's redemption period, the mortgagor may redeem
the premises sold, by paying to the purchaser or for him to the sheriff, the
sum for which the same were sold, with interest from the date of sale at the
rate of the mortgage debt after due, together with any further sums payable
pursuant to the preceding section; and a certificate of redemption shall be
executed and recorded as hereinafter provided.
(2) The sheriff shall forthwith pay to the purchaser or redemptioner

redeemed from the redemption money paid to the sheriff under this or the fol-
lowing section.
SECTION 24. REDEMPTION BY LIENOR. (i) If no such redemption be

made by the mortgagor, the lienor having the senior lien, legal or equitable,
upon the mortgaged premises, or some part thereof, subsequent to the mort-
gage, may redeem within ten days after the expiration of the mortgagor's re-
demption period, by paying the amount required of the mortgagor by the pre-
ceding section; and each subsequent lienor in succession, according to priority
of his lien, may also redeem within five days after the time allowed the prior
lienors, by paying the amount paid by the person from whom redemption is
made with interest, and the amount of all such liens prior to his own held

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by such person as are evidenced as required in this section. No lienor shall

be entitled to redeem, unless within the mortgagor's redemption period, he
files for record a notice of his intention to redeem, and the lien appears by
instruments duly recorded or is a judgment lien.
(2) The lienor redeeming shall pay to the person holding the right ac-
quired under the sale, or for him to the sheriff, the amount required to redeem,
and shall produce to such person or sheriff documents evidencing his right to
redeem as follows:
(a) the original mortgage, assignment or other document evidencing

the original lien and also any assignment thereof under which he claims
a right to redeem, with the certificate of record endorsed thereon, or a
certified copy thereof or of the record thereof or of any files evidencing
such lien or assignment, or a certified memorandum of the place of re-
cording or filing the same, or in case of a judgment, a certified copy of
the docket thereof, or if any such document is not entitled to be recorded
or filed, then the original thereof verified by the affidavit of himself or
some person acquainted with the signature of the assignor or maker; and
(b) an affidavit of himself or his agent showing the amount then

actually owing on his lien.
Forthwith after such redemption the lienor redeeming shall deposit such
documents with the sheriff who shall preserve the same in his office for one
year thereafter, for which service his fee shall be one dollar.
SECTION 25. CERTIFICATE OF REDEMPTION, RECORD. The person from

whom such redemption is made, or the sheriff to whom the money is paid,
shall execute to the person redeeming a certificate of redemption containing:
(i) The name of the person redeeming, and the amount paid by him;
(2) A description of the sale, and of the premises redeemed;
(3) A statement of the claim upon which such redemption is made, and,
if upon a lien, the amount claimed to be owing therof at the date of redemp-
tion.
If redemption be made by the mortgagor, his certificate shall be recorded

in the county where the sale is held, within four days after the expiration of
his redemption period, and, if made by a lienor, his certificate shall be re-
corded in such county within two days after his redemption. Unless so re-
corded, such certificate shall be void as against any person redeeming in good
faith from the person or lien so redeemed from.
The recording officer shall note on the margin of the record of the cer-
tificate of sale, a reference to each such certificate of redemption and the place
of its record.
SECTION 26. EFFECT oF REDEMPTION. If redemption be made by the mort-

gagor, it annuls the sale, if by a lienor, his certificate of redemption, duly re-

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corded, operates as an assignment to him of the right acquired by the

chaser at the sale, subject, however, to the rights of subsequent redeinp
If a lienor redeeming be the last redemptioner, his lien shall be satisfied in
the amount by which the fair value of the premises exceeds the sum which he
paid to redeem.
SECTION 27. ACTION To REDEEM. If an action is commenced prior to

the expiration of the time for redemption, to redeem from or to set aside the
mortgage or sale, the court shall in such action have control over the redemp-
tion from the sale, including the power to extend the time allowed for re-
demption by the mortgagor or any person entitled to redeem, to such time
and on such terms and conditions, as to security, possession of the premises
and otherwise, as may be equitable and just, to fix the manner and terms of
redemption from the sale and to permit redemption therefrom by anyone
equitably entitled to redeem, although not a redemptioner under the foregoing
provisions of this act. As a condition of extending the period of redemption,
a bond approved by the court shall be required sufficient in amount to pay the
costs of the action and all damages arising from such extension.
SECTION 28. RECOVERY OF POSSESSIONS. After the expiration of the

mortgagor's redemption period, the person holding the right acquired under
the sale may recover possession of the premises from the mortgagor or any
one holding under him, by an action [in unlawful detainer] as from a tenant
for the non-payment of rent, or by any other existing remedy.
SECTION 30. FORECLOSURIE OR INSTALLMENT. Where a mortgage is given

to secure the payment of money by installments, such installment or install-
ments, either for principal or interest, as are due at any time, may be taken
and deemed to be secured by a separate and independent mortgage, which may
be foreclosed in the same manner and with like effect as if a separate mortgage
were given for subsequent installments; and a redemption from any such sale
by the mortgagor shall have the like effect as if the sale for such installment
or installments had been made upon an independent mortgage.

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Redemption from Foreclosure Sale: The Uniform Mortgage Act

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REDEMPTION FROM FORECLOSURE SALE-

BY EDGAR NOBLE DURFEE*

Introduction-Equitable Redemption and Foreclosure.

A. Equitable Redemption. "Let mercy season justice," argued

*Professor of Law, University of Michigan.

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B. Equitable Foreclosure. "Let justice season mercy," is a

2Vernon v. Bethell, 2 Eden IIO; Peugh v. Davis, 96 U. S. 332; Pierce v.

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redemption, the mortgage should be foreclosed. This forecl

C. Sale in Equity. Strict foreclosure remained the normal pro-

? Goodman v. White, 26 Conn. 3I7.

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sale of the property in exceptional cases.10 In this country

Let us canvass the objections to strict foreclosure. By it, the

12This point made in Mussina v. Bartlett, 8 Port. 277, 287; Wilder v.

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controlled as to fully protect the mortgagor without unduly prejudic-

But objection to strict foreclosure did not come entirely from

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mercy, and the power of sale won recognition,23 and recognition, n

E. The Inherent Weakness of Foreclosure by Sale;-Reme-

inconvenience of foreclosure in equity is retained. The Uniform Act proposes

23Though following the earliest use of sale in particular cases of equita-

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fails to do so. Experience teaches that, even though all it

28Execution and foreclosure sales are commonly required to be for cash.

In the absence of statutory regulation, a power of sale may by express

We would think, then, that prayerful consideration should be given to the

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anyone except those who are already interested in the land as

29The mortgagee is not competent to purchase at a sale under a power

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The situation is so far from satisfactory that legislatu

Comparable to the statutory appraisal, which is applicable to

Another effort to eliminate under bidding is found in the

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General Frame and Purpose of Statutes on Redemption from

In an appendix, we present the redemption provisions of the

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of them including in this class the owner of the equity of r

There are obvious resemblances between the sort of redemption

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is barred by limitation) until foreclosure. It ceases then, for fore-

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Now let us consider the purpose and effect of this legislation.

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must be principally inferred from its effects. At first glan

It is clear, however, that redemption statutes have another pur-

44Either by sale or a new mortgage. Handbook, 1922, p. 270.

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excess value of the land by redemption from the sale. They

4SExcept he be very sure of the personal responsibility of his debtor, the

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Effect of Redemption from Sale.

A. Effect of Foreclosure Sale in the Absence of Redemptio

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