. See Amory v. Fairbanks, 3 Mass.
562 (1793); Coit v. Fitch, 1 Kirby
(Conn.) 254 (Super. Ct. 1787); 1 Glenn, Mortgages
436–437. Since 1836, a Massachusetts statute has provided that if the mortgagee recovers
on a deficiency after foreclosure, the right to redeem is reopened for a year. Mass. G.L.
, c. 244, §35. Later construction of this Act indicates that it created a right not
previously known at common law. Fennyery v. Ransom, 170 Mass.
303, 49 N.E.
620 (1898). It has not given rise to the difficulties about deficiency suits found
in England. See note 6
above; compare Ely v. Ely, 6 Gray
) 439 (1856). By Act of 1818, now Mass. G.L.
, c. 244, §36, it was provided that a mortgagor could recover a surplus in an action
at law. Presumably at common law any surplus was a windfall to the mortgagee. Thus,
the mortgagor could not ordinarily open the foreclosure merely because of a surplus.
See John J. Powell, Mortgages
457–461 (London, 1st edn., 1785).