#### Driver v. J. T. Fargason Company. Bank of Commerce & Trust Company v. Driver.

Opinion delivered May 23, 1927.

*118 J. T. Goston, for Driver.

A. F. Barham, and Gautney •& Dudley, for Bank and Fargason.

Hart, C. J.,

(after stating the facts). The principal question raised by the appeal involves the right to redeem what is called the Driver home place from the mortgage foreclosure decree, and that question is settled by the provisions of the deed of trust. As will He seen from our statement of facts, the deed of trust contains an express provision that the home place of 320 acres shall not be sold until all the other property is exhausted, and that the mortgagor shall have one year from the date of sale to redeem said 320 acres- known as the home place, upon which he resides. This provision was as much a part of the deed of trust as any other provision contained in it and was just as binding upon the parties. The chancellor recognized the validity and binding force of this provision of the deed of trust in the foreclosure decree. It was there expressly provided that the mortgagor should have the right to redeem the 320 acres known as the home place within one year from the date of sale under the foreclosure decree, in compliance with the provisions of the deed of trust on this point. No appeal was taken by the trustees from the foreclosure decree, *119and that part of the decree providing that the mortgagor might redeem the 320 acres known as the home place is just as valid and binding upon the parties as the other provisions of the decree. It is well settled that there may he a redemption of a portion of the mortgaged land with the consent of the mortgagee. 2 Jones on Mortgages, 7 ed., § 1072; Kerse v. Miller, 169 Mass. 44, 47 N. E. 504; and Dougherty v. Kubat, 67 Neb. 269, 93 N. W. 317. To the same effect see Union Mutual Life Ins. Co. v. Kirschoff, 27 N. E. 91, 133 Ill. 368; Potter v. Brown, 50 Mich. 436, 15 N. W. 540; Heald v. Jarcline (N. J. Ch.), 21 Atl. 586; Cox v. Ratcliffe, 105 Ind. 374, 5 N. E. 5; and Oertel v. Pierce, 116 Minn. 266, Ann. Cas. 1913A, page 854, and case-note,- 133 N. W. 797. The record shows that the right of redemption from the sale in the case at bar was exercised within the period of time stipulated in the deed of trust.

It is next insisted that, even if William Walter Driver, the mortgagor, had the right to redeem, no such right existed in favor of Abner Driver. The record shows that William Walter Driver conveyed the home place, comprising '320 acres, to Abner Driver in consideration of $500, which was paid him. This quitclaim deed gave to Abner Driver the right to redeem said home place, provided he complied with the terms of the mortgage. It does not make any difference whether or not the consideration was actually paid as recited in the quitclaim deed or whether the consideration was an adequate oné. So long as the lien of the mortgage was recognized, it did not concern the mortgagee whether William Walter Driver continued to hold himself the equity of redemption or gave it to Abner Driver. Bradley v. Snyder, 14 Ill. 263, 58 Am. Dec. 564:

•This court has held that one who purchases mortgaged land from the mortgagor succeeds to the latter’s equity of redemption from the mortgage. Scott v. Henry, 13 Ark. 112; Cohn v. Hoffman, 56 Ark. 119, 19 S. W. 233; and Livingston v. New England Mortgage & Security Co., 77 Ark. 379, 91 S. W. 752.

*120It will be observed that the language of the deed of trust provides that the home place shall not be sold until all other property is exhausted, and, if it must be sold, the mortgagor shall have one year from the date of sale to redeem it. This means that the mortgagor shall have the right to redeem the. home place from the sale under the mortgage and not from the mortgage itself. Therefore, in exercising the right to redeem, Driver was only required to pay into court what the home place sold for if it had been sold separately, as provided in the mortgage. The record, however, shows that the home place was not sold separately after the other property had been sold, as provided in the mortgage, but the whole of the mortgaged land was sold together. Now, the whole of the mortgaged land comprised about 3,390 acres, and the home place consisted of 320 acres. All of this was sold for the sum of $230,000. The court costs in the foreclosure decree amounted to $3,777.55. Abner Driver deposited a certified check in the amount of $21,000, asking the court to apply the whole or so much as was necessary thereof to the redemption of the home place. The chancery court was of the opinion that the proportionate pa,rt of the amount all the lands sold for, including the proportionate part of the cost which should be borne by the home place, amounted to $19,392.62. The balance of the $21,000 was ordered to be returned to Driver. • In arriving at the amount necessary to redeem the home place, the court apportioned the costs of the case, including the cost of sale and the total cost of the foreclosure proceedings.

It is earnestly insisted that the court erred in not charging the whole of the cost of the foreclosure proceedings against Driver and in computing the whole.cost and fixing the amount to be paid by him for the redemption of the home place. We do, not agree with counsel in this contention. Courts of equity will, in awarding costs, take into consideration the circumstances of the particular case before it, the situation or conduct of the parties, *121and exercise tlieir discretion -with reference to these points. McCauley v. Arkansas Rice Growers’ Co-op. Assn., 171 Ark. 1155, 287 S. W. 419, and Temple v. Lawson, 19 Ark. 148.

Courts of .equity, by virtue of the discretion vested in them, have power in a proper case to apportion the costs between the parties, and their action will not be» disturbed, unless it appears from the facts disclosed by the record that there was a clear abuse of discretion. In the case at bar no such abuse of discretion is shown. The express terms of the mortgage provided that all the other property should be sold before the home place, and the mortgagor was given the right to redeem it from the mortgage sale. Instead of carrying out the provisions of the mortgage, the mortgagee caused all of the land to be sold in bulk, and the sale was confirmed in that way. There would have had to have been a foreclosure of the land in the deed of trust in any event, and all of it should have been sold before the home place was sold. Not having done so, it became necessary for the court to fix the amount at which the home place would likely have been sold had the provisions of the deed of trust been carried out. It would be inequitable to tax the whole cost of the foreclosure against this tract of land. Indeed, it is probable that no foreclosure would have been necessary as to it. The parties might have agreed upon its value. In any event, it is in accordance with the principles of equity .to apportion the costs, and it cannot be said that the chancellor abused his discretion in the amount of cost awarded as the proportionate part necessary to be taxed agiainst the home place in fixing the amount for which it might he redeemed.

Again, it is insisted that Abner . Driver gave a check when he first offered to redeem the home place. We do not deem it necessary to discuss this phase 'of the case at length. Whether he had the money in the bank with which to pay the check at the time he gave it or not, it is certain that he paid into the court the amount necessary *122to redeem the laud. The record shows that, when he first applied to the mortgagees to redeem the land, they denied this right to redeem. Under these circumstances it made hut little difference whether he had the money . at the time or not. As we have just seen, he did have the amount necessary to redeem the land when it was fixed by the court. Indeed, before that time, he had *paid into the depository of the court the sum of $21,000 to he used in redeeming the land.

We have carefully considered the matter in all its bearings and have given consideration to all the'arguments made by learned counsel in their briefs. The conclusion we have reached on the whole case, after considering all the evidence and law applicable thereto, is that in No. 9708 the decree should be modified so as to allow a redemption of the home place as herein provided; and the decree in No. 10074 allowing the redemption of the home place was correct, and will therefore be affirmed.

It is so ordered.