
    Bigelow versus Willson.
    Where a right in equity of redeeming mortgaged land is attached on mesne process and afterwards sold on execution, a second mortgage made in the interval between the attachment and sale is valid; and the second mortgagee, oí* his assignee, may redeem the right in equity so sold.
    Whether the same may be done by a purchaser, at a sale on execution, of the right of redeeming the second mortgage, quaere.
    
    In computing the time allowed by St. 1815, c. 137, § 1, for redeeming a right in equity sold on execution, which is, “ within one year next after the time of exe* outing, by the officer to the purchaser, the deed thereof,” the day on which the deed is executed is to be excluded.
    Writ of entry. The parties submitted the action to the determination of the Court upon a case stated. The material facts are the following.
    On the 22d of January, 1816, one Wyman mortgaged the demanded premises to J. and L. Pond. On the 28th of December, 1819, Wyman’s right in equity of redeeming the land was attached on mesne process, at the suit of one Prescott, and on the 6th of November, 1820, the lien created by the attachment still continuing, was sold on the execution in that suit to the tenant; to whom the officer gave a deed of it after sunset on the day of the sale.
    On the 21st of August, 1820, Wyman mortgaged to the same mortgagees all his remaining interest in the demanded premises. Afterwards, on the 2d of September, 1820, his right in equity of redeeming this second mortgage was attached in sundry actions against him, and on the 21st of May, 1821, was sold by virtue of the executions in those actions to the demandant, to whom the officer gave a deed the next day.
    On the 5th of November, 1821, before sunset, the demand-ant tendered to the mortgagees the amount secured by the second mortgage, and requested an assignment of the mortgage, claiming the right to redeem by reason of the sale and deed to him before mentioned ; but the mortgagees refused to accept the money tendered. Afterwards, on the' same day, before sunset, the demandant tendered to the tenant such sum, with interest, as the tenant had paid for the right in equity of redeeming the first mortgage ; but the tenant refused to accept it.
    
      On the 6th of the same November, the mortgagees assigned to the demandant the second mortgage ; and he afterwards, on the same day, before sunset, made another tender to the tenant, similar to the one previously made to him, and requested him to release to the demandant the right in equity of redeeming the first mortgage, the demandant claiming the right to make the tender by reason of the assignment of the second mortgage ; which money so tendered the tenant refused to accept.
    On the 15th of August, 1822, the demandant offered to pay, and tendered to the tenant such sums of money, with the interest, as the tenant had paid to the mortgagees on the first mortgage, deducting the excess of rents and profits received by the tenant above the repairs, &c. made by him ; the demandant claiming the right of redeeming the right- purchased by the tenant, by reason of the sale and deed before mentioned to the demandant, the tender to the mortgagees, and the assignment of the second mortgage.
    If the Court should be of opinion that the demandant was entitled to recover, the tenant was to be defaulted; if otherwise, the demandant was to become nonsuit.
    The parties further agreed that the demandant, if it should be deemed necessary, might so amend as to change his writ and declaration into a bill in equity ; or otherwise, that the Court might decree in the same manner as if the matter were pending on any bill in equity, if such should be considered as a proper and legal remedy.
    The arguments were transmitted to the justices in the vacation, in-writing.
    
      L. Bigelow, for the demandant, contended,
    that by the St. 1798, c. 77, § 3, which provides that “ all rights in equity of redeeming real estate mortgaged ” shall be liable to be taken in execution, the right of redeeming the second mortgage was liable to be taken in execution and sold, and that the purchaser stood exactly in the place of the debtor, as it respects the redemption of the estate. The demandant, then, had a right to redeem the second mortgage, and, having done it, or offered to do it, he had a right of redeeming from the tenant the right purchased by him. By such a course no one can be injured, and creditors of the mortgagor will be enabled to obia™ satisfaction of their debts. But if any technical objection should prevail over the literal and equitable construction of the statute, the debtor, or those who are willing to speculate upon his embarrassments, may avail themselves of funds which ought to be distributed among creditors.
    It is believed that the question now presented has never undergone a judicial decision. The case of Kelly v. Beers, 12 Mass. Rep. 387, merely decides that the, right, which Ue debtor has, by the statute, to redeem from the purchaser on a sale on execution, is not liable to be taken and sold on execution. A sufficient reason for this is, that the statute has not made it liable. But if the debtor should convey in mortgage this statute right, the grantee would have a right to redeem from the purchaser, and the debtor from the grantee. It was, however, the right of redeeming a mortgage, and not the right of redeeming from a sale, which was purchased by the demandant, and upon which purchase his title may be founded.
    Another ground upon which the demandant rests his action is, the assignment of the second mortgage, and the tender to the tenant. By virtue of that assignment, the demandant became entitled to redeem the estate in the same manner that the debtor, or the mortgagee, might have done ; and the only question is, whether the offer to redeem the right in equity sold on execution to the tenant was made, as required by St. 1815, c. 137, § 1, “ within one year next after the time of executing, by the officer to the purchaser, the deed thereof.” If the day on which the deed was executed is excluded in the computation, the tender was seasonably made.
    To prove that this day should be excluded, he cited Pugh v. The Duke of Leeds, Cowp. 714 ; Ex Parte Fallon et ux., 5 D. & E. 283 ; Thomas v. Popham, Dyer, 218 ; S. C. Moore, 40 ; Watson v. Pears, 2 Campb. 294 ; Lester v. Garland, 15 Ves. 254, and Mercer v. Ogilvie, there cited ; Dowling v. Foxall, 1 Ball & Beat. 192. The word time, in the statute, must be considered as synonomous with day, because the law knows no division less than a day ; and then the following cases apply. Clayton’s case, 5 Co. 1 ; Barwick’s case, 5 Co. 94 ; Osbourn v. Rider, Cro. Jac. 135 ; Llewelyn 
      v. Williams, ibid. 258 ; Bacon v. Waller, 3 Bulstr. 204 , Cornish v. Cawsy, Aleyn, 77 ; Norris v. The Hundred of Gawtry, Hob. 139 ; Bellasis v. Hester, 1 Ld. Raym. 280; Cramlington v. Evans, 2 Vent. 307. Unless the day of executing the deed to the tenant be excluded, the debtor would not have one year to redeem, as the statute intends ; for, the deed being executed after sunset, no tender could be made on that day. Bac. Abr. Tender, D ; Avery v. Stewart, 2 Connect. Rep. 84 ; Portland Bank v. Maine Bank, 11 Mass. Rep. 204. Where money is to be paid, the time of payment is to be computed exclusive, of the terminus a quo. Chitty on Bills, (5th ed.) 338, and authorities there cited ; Henry v. Jones, 8 Mass. Rep. 453 ; Avery v. Stewart, 2 Connect. Rep. 69.
    
      J. Davis, for the tenant.
    After the sale and conveyance to the tenant by the officer, no estate remained in Wyman upon which a creditor could levy an execution. A right in equity cannot be sold on more than one execution, for the officer is not authorized to sell a part, but must sell the whole, subject to no other incumbrance upon it than what existed at the time of making the attachment, except the debtor’s right of redeeming from the sale. This is the view which the legislature have taken of the provisions in St. 1783, c. 57, § 4, and St. 1798, c. 77, § 4 ; for by St. 1804, c. 83, § 6, the officer making sale of a right in equity is directed to apply the surplus money, if any, to the satisfaction of other executions, which he may have against the debtor, and if he has none, then to pay it over to the debtor. And this Court have taken the same view of the subject in Kelly v. Beers, 12 Mass. Rep. 387, where it is ruled, that after such sale the debtor’s right of redemption is not an estate in the land, but rather a personal privilege to keep his land if he does not wish to part with it at its full value. As no estate existed in the debtor, upon which an execution could be levied, at the time when the demandant took his deed, the deed is inoperative.
    The second mortgage did not convey such an interest as will authorize the mortgagees or their assigns to redeem. The attachment of Prescott being antecedent to this mortgage, the title of the tenant commenced before that of the demandant. 
      Jill the right in equity (which consisted of all the debtor’s remaining interest in the land after the first mortgage) was sold by the officer and purchased by the tenant, saving the debtor’s right of preemption. This being a personal right, and not an estate, nothing remained after the attachment (the tenant’s title relating back to that time) which could pass by deed. That the debtor’s right of preemption is a personal privilege appears not only from the case of Kelly v. Beers, but also from St. 1815, c. 137, § 1, which recognizes the right of the “ execution debtor ” alone to redeem a right in equity sold on execution ; and as all power to redeem is derived from the stat ute, a stranger to its provisions cannot successfully claim the right. It follows that the demandant has no right to redeem, first, because he took no estate by virtue of the second mortgage, and secondly, because, whether he took an estate or not, he was not the “ execution debtor.”
    
      489
    
      But, admitting that he had a right to redeem, he did not, as assignee of the second mortgage, make his tender in season. The computation here is to be from an act done, and the day on which it is done is to be included, Bellasis v. Hester, 1 Ld. Raym. 280 ; The King v. Adderley, 2 Doug. 463, and Norris v. The Hundred of Gautris, there cited ; Glassington v. Rawlins, 3 East, 407 ; Presbrey v. Williams, 15 Mass. Rep. 193. There is no difference between the expressions, u from executing,” and “ from the time of executing ” ; and in Bellasis v. Hester, where the expression was “ a confectioned it was held that the day of making was included.
    
    
      Bigelow, in reply.
    Because the statute, which gives the debtor a right to redeem, does not expressly provide that he may assign that right, it is argued that it is not assignable ; but the assignable quality of a thing' cannot depend on an express authority to the owner to assign in- the conveyance to him. The language of the Court m Kelly v. Beers is, that “ a debtor, after a sale, has not, strictly speaking, any interest or estate in the land ; he has only a possibility, or right to an estate, on payment of a certain sum of money.” “ The right of redemption, which is reserved to him, is not so much a valuable interest, as it is a personal privilege to keep his own land.” Now if this right partakes enough of a valuable interest, however small, to render it alienable, or is not so much a personal privilege as to destroy its alienable quality, it is all that is contended for. Whatever may be the presumption of law, it is a w ill known fact, that this right is often a valuable one, as the right of redeeming a mortgage is often sold for less than its value. No stronger objections can be urged against the alienation of this right than can be urged against the alienation of various other rights and interests which are indisputably alienable. A possibility, or a contingent interest in lands, is assignable. Selwin v. Selwin, 1 W. Bl. 222, 251 ; S. C. 2 Burr. 1131 ; Roe v. Griffiths, 1 W. Bl. 605 ; Roe v. Jones, 1 H. Bl. 30; S. C. 3 D. & E. 88. The right of the debtor to redeem from a sale may be likened to the interest which a mortgagee has before entry for condition broken, or to that of the mortgagor after such entry, both of which are alienable. Goodwin v. Richardson, 11 Mass. Rep. 469. It is not like a right of entry, after a disseisin, which, being in the nature of a chose in action, is not assignable in law. In such case there are adverse claims, which necessarily lead to litigation. But the purchaser of a right in equity sold on execution can set up no title, without admitting at the same time that the estate is liable to be redeemed from him. If it should be conceded, however, that Wyman’s right of redeeming from the sale is a chose in action and not assignable in law, yet the Court, exercising its powers as a court of chancery, may protect the equitable interest which the assignee now claims. Master v. Miller, 4 D. & E. 340 ; 2 Bl. Comm. 442 ; Anderson v. Van Allen, 12 Johns. Rep. 343 ; Dix v. Cobb, 4 Mass. Rep. 508; Gould v. Newman, 6 Mass. Rep. 239 ; Brown v. Maine Bank, 11 Mass. Rep. 153 ; Crocker v. Whitney, 10 Mass. Rep. 316 ; Cutts v. Perkins, 12 Mass. Rep. 206 ; Dawes v. Boylston, 9 Mass. Rep. 227. If the demandant had no right to redeem in his own name, he must be considered as the agent of Wyman, and the tenant was bound to release either to Wyman or his assignee. It could make no difference with the tenant from whose hands he received the money, nor to whom he released the estate, whether to Wyman or his assignee; and a release to either would have inured to the benefit of the demandant. Adams v. Frothingham, 3 Mass. Rep. 352 ; Porter Vl Hill, 9 Mass. Rep. 34.
   The opinion of the Court was delivered at this term, by

Wilde J.

Whatever doubts may exist as to some questions raised on this statement of facts, certain points appear sufficiently clear, and are so decisive of the merits of the case, as to render' the examination of more doubtful matter unnecessary.

The demandant claims title on two grounds. 1. By virtue of an assignment of the second mortgage. 2. By the sheriff’s sale of the equity of redemption of the second mortgage.

On one or both of these grounds his counsel contend that he has a good right to recover in this action ; or if not, that he is entitled to a bill in equity, he having duly tendered the money due to the tenant, who was the purchaser of the equity of redeeming the first mortgage, and who has since obtained the title of the first mortgagee to the demanded premises.

From the principles laid down in the case of Parsons v. Welles et. al., 17 Mass. Rep. 419, it is clear that the demand-ant cannot maintain ejectment, the legal estate being in the ten ant, and that his only remedy, if he has any, is by a bill in equity. And the parties agree, that if the Court should be of opinion that this is the proper remedy, it may be substituted for the present action.

Considering the case, then, as depending on the rules and principles of equity, we are first to determine whether the plaintiff is entitled to redeem by virtue of the assignment of the second mortgage. It is objected, that the second mortgagee, after the sale of the equity to the tenant, had no such right, and therefore could assign none ; and that if he had any such right, it was not by law assignable.

He had no right to redeem, it is said, because, first, he took nothing by the mortgage ; and secondly, not being the execution debtor, he had no right to redeem, whatever other right he might have acquired by the mortgage. But the equity of redemption certainly passed by the second mortgage ; and by the assignment also, unless the sheriff’s sale to the tenant prevented. The attachment did not change the estate of the debtor, or take away his power of alienation, and the creditor acquired no property thereby; he had only a 1 en ; and the debtor might legally convey the property subject to the lien. This 1 en the purchaser might discharge by payment of the debt before execution executed, or he might afterwards redeem the estate, if it were by law redeemable.

But it has been argued that nothing passed by the second mortgage, because the tenant’s title by law relates back to the time of attachment, which was prior to the mortgage, and therefore the debtor had no estate to convey. This position we think cannot be maintained, for if it could, it would follow that the tenant might maintain an action for any trespass committed in the intervening time between the attachment and the sale, which clearly he cannot do. We consider, therefore, the tenant’s title as commencing at the time of the sale. This point, however, is not very material, because the attachment constituted a lien on the land, which would have defeated the title under thé second mortgage, but for the right of redemption reserved to the debtor by the statute.

The question, then, is, whether this is a mere personal right, or a right transmissible and assignable. According to the literal construction of the statute, the debtor alone can redeem, yet it is hard to believe that so strict a construction can be conformable to the intention of the legislature ; for this would not only shut out assignees from the benefit of the provision, but also executors, administrators and heirs ; which would be in a high degree unreasonable. If the right reserved to the debtor was an important right to him, and the legislature certainly so considered it, it was equally important to his heirs and others holding the estate under him. We must therefore suppose that the legislature intended to extend the provision to all those who might be injured by the sale of the estate for an inadequate price. But whether the statute will admit of this construction or not is immaterial, provided the right reserved to the debtor is by law assignable.

It is now well settled, that a possibility coupled with an in terest is assignable. 3D. & E. 88 ; Shep. Touch. 239. Thus, a contingent interest in lands, before the contingency happens on which the estate is to vest, may be granted or assigned. So a man may grant that which he hath potentially, though n't actually. Bac. Abr. Grant, D. 3 ; Grantham v. Hawley, Hob. 132 ; 2 Roll. Abr. 47, 8. As if a person grants ah the tithe wool which he shall have, such a year, the grant is good in its creation, though it may happen that he shall have no tithe wool in that year. The right, however, assigned in this case more resembles the equity of redeeming a mortgage ; it was an existing right of redeeming the estate sold, not depending on a contingency, which might or might not happen ; and it was a valuable right secured by the statute. No case has been found to show that such a right is not assignable, nor can I perceive any good reason why it should not be. A right to redeem an equity may be assigned, as well as a right to redeem the legal estate. For a man may mortgage his lands by successive mortgages without limitation, and the puisne mortgagee will be entitled to redeem, however remote his title may be from the legal estate.

The case of Kelly et ux. v. Beers has been cited as an authority against the doctrine now laid down ; but the question, whether the right of a debtor to redeem after the sale of an equity was assignable or not, was not considered by the Court in that case. All that was there decided was, that such a right was not attachable or liable to be taken and sold on execution. And this question depended on the construction of certain statutes, which are not applicable to the question ol assignment.

But if it were admitted that the assignment is not valid in law, it is clearly good in equity ; and it is equally clear that the assignee may maintain a suit in a court of equity in his own name. All the authorities agree that choses in action are assignable in equity. The doctrine of the common law on this point, for the prevention of maintenance, has never been adopted by courts of equity, and has been almost explained away by courts of law, it remaining now only an objection to the form of action.

• Deciding this case, therefore, as a court of equity, we can have no doubt of the validity of the assignment, and that, if the tend ;r was made in season, the plaintiff may sustain a bill to redeem in his own name.

As to the question of the tender and the computation of time, there are many conflicting cases, which it is impossible to reconcile. As Lord Mansfield says, in the case of Pugh v. The Duke of Leeds, Cowp. 719, “ they are yes and no, and a medium between them.” Yet there are some principles which appear to be well settled, and which will serve as guides to the decision which it behaves us to pronounce on this point.

The first I shall mention is, that words are generally to be construed according to their legal sense or ordinary import ; and, if this be doubtful, the intention of the parties is to govern in cases of contract, and that of -the legislature when the question relates to the construction of a statute. If this intention is doubtful, such a construction is to be adopted, if the words will admit of it, as will save an estate, rather than create a for feiture.

Another principle appears to be well settled, viz. that the words “ from the date” and “ from the day of the date,” when used in a lease to designate the commencement of a term, have precisely the same meaning. This has been denied in some old cases, but these cases have been overruled, and the principle has been long established. It is laid down by Lord Coke, in his Commentary on Littleton, (Co. Lit. 46 b,) and by Lord Mansfield, in the case of Pugh v. The Duke of Leeds, in which he reviews all the cases on this point. It is also in strict conformity to the legal sense of the words. The date of a lease or other deed is not the hour or minute when the lease or deed was executed, but a memorandum of the day when the deed was delivered. This day in a legal sense is an indivisible point of time, there being no fraction of a day. Cowp. 720. On this old maxim of law, I infer that the words, “ time of executing the deed,” used in the statute, mean in legal acceptation the day of delivery, which is the same as “ the date,” or “ the day of the date.”

If these principles are correct, then I apprehend the weight of authority is most decidedly in favor of excluding the day in which the deed was executed. Before the case of Pugh v. The Duke of Leeds, all the cases agree that the words, “ from the day of the date,” are words of exclusion. So plain was this meaning thought to be, that leases depending on this rule of construction were uniformly declared void, against the manifest intention of the parties. Of this doctrine, thus applied, Lord Mansfield very justly complains, not, however, on the ground that the general meaning of the words had been misunderstood, but because the plain intention of the parties to the contract had been disregarded. All that was decided in that case was, that “ from the day of the date” might include the day, if such was the clear intention of the contracting parties ; and not that such was the usual signification of the words. I think, therefore, we are warranted by the authorities to say, that when time is to be computed from or after the day of a given date, the day is to be excluded in the computation. And that this rule of construction is never to be rejected, unless it appears that a different computation was intended. So, also, if we consider the question independent of the authorities, it seems to me impossible to raise a doubt. No moment of time can be said to be after a given day, until that day has expired.

As to the rule for computing time from any act done, which is laid down in several cases, and principally relied upon by the defendant’s counsel, it appears to me to be liable to several objections, admitting that it is applicable to this case.

1. In the first place, it is opposed to the maxim already noticed, that there is no fraction of a day. If a day is considered as an indivisible point of time, there can be no distinction between a computation from an act done, and a computation from the day in which the act was done. I admit that this maxim is a fiction of law, and that when it is material to dis tinguish, the truth may be shown ; for a fiction of law, introduced for the sake of convenience and justice, ought never to be allowed to work a wrong. Thus, when it is necessary to determine the priority'of two attachments, the precise time of each attachment may be shown ; and so in many other cases But this is only permitted for the furtherance of justice.

2. But if the precise time when an act was done might be shown, it would ne no argument for supporting the rule ; because, if the maxim or fiction of law be disregarded, there is no reason why the termination, as well as the commencement of a term, should not be shown, so that the term might be computed with mathematical certainty. It is said that the deed in this case was executed after sunset on the 6th of November, 1820, and that the tender was made before sunset on the 6th of November, 1821 ; so that in fact the tender was made within a year from the time of executing the deed ; yet the defendant would" resort to a fiction of law to prevent the plaintiff from showing the fact, or availing himself of the benefit of it, at the same time relying on a rule in opposition to this same fiction.

3. Cases may be supposed in respect to which the application of the rule would be absurd. For instance, if a day only were allowed the debtor to redeem, after an act done, and the act were done the last moment of the day, or even after sunset, the debtor could make no lawful tender at any time, and his right of redemption would be defeated by construction.

These are some of the objections to the rule in question, which incline us not to adopt it in this case. We do not con sider it as a well settled rule of law of binding authority. The decided cases are both ways. The rule seems to be founded on a distinction which has been long since exploded. It is said that if a lease be made to commence a confectione, which is an act done, the day of the date shall be included ; other wise, if it commences a die confectionis, or a die datüs. 1 Ld. Raym. 280 ; Co. Lit. 46 b. This subtlety was resorted to for the purpose of saving leases from the objection that they commenced in futuro; and thus the supposed rule was probably introduced. Most of the cases in which it has been adopted were such as to require the most favorable construction in conformity to it; and this reason is given for its adoption in the case of The King v. Adderley. And as many cases since decided cannot be reconciled with the rule, we must consider it as of doubtful authority, and as opposed to the justice of this case, and to the statute providing for the redemption of equities sold on execution.

Upon the whole, therefore, we are of opinion, that the plaintiff, as assignee of the second mortgage, was entitled to redeem, and that the tender was seasonably made.' This being the opinion of the Court, it is unnecessary to consider the validity of the attachment ‘ under which also he claims a right to recover. Let a bill in equity be filed. ' 
      
       After the sale on execution of an equity of redemption, the mortgagor has an interest remaining, which he may mortgage, and his right of redeeming this second mortgage is assignable and may be attached. Reed v. Bigelow, 5 Pick. 281. See also Clark v. Austin, 2 Pick. 528.
     
      
      
        Sims v, Hampton, 1 Serg. & R. 411; Rand v. Rand, 3 N. Hamp. R. 267; Windsor v. China, 4 Greenl. 304; Pease v. Norton, 6 Greenl. 233. See Wheeler v. Bent, 4 Pick. 167; State v. Jackson, 1 Southard, 323; Priest v. Tarlton, 3 N. Hamp. R. 93.
     