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Author: Admin | 2025-04-28
Which country does not recognize the existence of what we call an equity of redemption, which was the case of our common law, and if a mortgage was given and duly perfected according to the lex situs, I feel no doubt that our Courts would restrain the mortgagee from exercising the rights given by the foreign law and would treat the transaction in the sense in which that word is used by us. In doing this our Courts would not in any way interfere with the lex situs, but would by injunction, and if necessary by process of contempt, restrain the mortgagee from asserting those rights.[11]Farwell LJ gave a concurring judgment. He postulated the issue thus: "The sole question is, Is there a right to redeem?"[12] He cited with authority ex parte Pollard (1840) Mont & Ch 239 at 250: "the courts of this country, in the exercise of their jurisdiction over contracts made here, or in administering equities between parties residing here, act upon their own rules, and are not influenced by any consideration of what the effect of such contracts might be in the country where the lands are situate, or of the manner in which the courts of such countries might deal with such equities". Accordingly, he held that the court could not allow the insertion of a clog which would defeat the equitable right to redeem.Kennedy LJ also gave a concurring judgment. He accepted that the law of the foreign country would govern the title to
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