Swift v. Kirby’s Empirical Analysis

Citation profile

3 federal appellate · 6 state decisions

Most-quoted passages

The sentences later courts lift from this opinion, ranked by how many decisions quote each — the parts of the opinion doing the work. These counts are smaller than the citation total above because most of the 12 citing decisions cite the case generally; a passage count includes only decisions quoting that exact language verbatim.

1. “The “idea” that the phrase equity of redemption represented, originated when mortgages were used as security instruments, prior to the advent of the deed of trust, and when courts of equity decided to relieve debtors of the harshness of the law of mortgages that vested full title in the mortgage immediately upon default. The remedy provided by the courts allowed the debtor to redeem at any time between default and consummation of a foreclosure sale. All authorities agree that that right was the original meaning of the equity of redemption. However, with the advent of the right of redemption created by statute in the various states, the right of redemption continued to be referred to in many states, as in Tennessee, as the “equity of redemption.” Although no reported case in Tennessee has so held, the courts of our sister states have, without exception, held that the equity of redemption cannot be waived in the mortgage instrument or at any time prior to default.... The purpose of that principle of law was to prevent the creditor-mortgagee from thwarting the grant of the equity of redemption by courts of equity to relieve the harshness of the mortgage instruments vesting of fee simple title in the mortgage upon the instant of default. As is relevant to the case at bar it is not necessary that we adopt that rule. It is sufficient to observe that no rule exists in Tennessee validating a waiver in a mortgage or deed of trust, the effectiveness of which is limited to the period be”

   1 later decision quote this exact passage
   e.g. Webb Mtn, LLC v. Executive Realty Partnership (In Re Webb Mtn, LLC)

2. “Right of redemption — Waiver.—Real estate sold for debt shall be redeemable at any time within two (2) years after such sale: (1) Where it is sold under execution; (2) Where it is sold under any decree, judgment, or order of a court of chancery, whether founded upon a foreclosure of a mortgage, or a deed of trust, or otherwise, unless, upon application of the complainant, the court orders that the property be sold on a credit of not less than six (6) months, nor more than two (2) years; and that, upon confirmation thereof by the court, no right of redemption or repurchase shall exist in the debtor or the debtor’s creditor, but that the title of the purchaser shall be absolute; and (3) Where it is sold under a deed' of trust or mortgage without a judicial sentence, unless the right of redemption is expressly waived by the deed or mortgage; and a waiver of the “equity of redemption,” or waiver using words of similar import, shall be sufficient to waive the right of redemption afforded by this section in all deeds of trust and mortgages, whether heretofore or hereafter existing.”

   1 later decision quote this exact passage
   e.g. Webb Mtn, LLC v. Executive Realty Partnership (In Re Webb Mtn, LLC)

3. “So we have the terms, “redemption” and “equity of redemption,” which belonged to a system of law that gave the legal estate, defeasibly before default and absolutely afterwards, to the mortgagee, and which, while that system prevailed, were descriptive of the mortgagor’s right to go into equity, on the condition of his paying his debt, to redeem a forfeited estate and demand a re-conveyance. These descriptive words yet sur vive, and are in use, although the ideas they once represented have long since become obsolete.”

   1 later decision quote this exact passage
   e.g. Webb Mtn, LLC v. Executive Realty Partnership (In Re Webb Mtn, LLC)