a premium of insurance, unless there is an agreement to that effect.(1) If the mortgagee is in virtual possession of the premises by taking the rents, he must account for what he has received, or might have received, without his wilful default, or with ordinary care and diligence.(2) If he has gone into possession personally, he shall be charged with an occupation rent.(3) This is fixed at the full value,(4) and Lord Redesdale has held that an agreement between mortgagee and mortgagor fixing a rent, was not to be supported.(5) At least in favor of others, it would not prevent an inquiry. Where, upon taking possession, the premises were in so ruinous a condition that no rent could have been obtained for them, and repairs to buildings had been allowed by the court on the ground of necessity, and that they were substitutions only for the former, the court charged the mortgagee with an occupation rent, only from the time of the repairs being completed.(6) As to rents accrued before a mortgagee takes possession actually or by notice to the tenants to pay to him, it is fully settled that he cannot recover them against the mortgagor.(7) If a mortgagee in possession pays rents to the mortgagor after notice of a second mortgage, he will be compelled to repay them.(8) Rents. 6 It will be noticed that by the terms of the English order of Proceedings reference, the master is to appoint a time and place at which the amount is to be paid. The master fixes this in his report (1) Faure v. Winans, Hopkins' Rep. 263; Saunders v. Frost, 5 Pickering. (2) Bulstode v. Bradley, 3 Atk. 582; Rowe v. Wood, 2 Jac. & Walk. 556; Burnet v. Claghry, in Chancery, January, 1821, Office, &c., Masters in Chancery, 242; Webber v. Hunt, 1 Mad. Rep. 13; Moore v. Aylett, 1 Hen. &. Mumf. 29; Williams v. Price, cited 3 Powell on Mortgages, p. 949, a. (3) Knowles v. Chapman, at the Rolls 1815, Seaton's Forms, 149; Marshall v. Cave, cited post. (4) Marony v. O'Dea, 1 B. & B. 118; Trimleston v. Hamill, Ibid. 385. (5) Webb v. Rooke, 2 Sch. & Lef. 661. (6) Marshall v. Cave, 1824, cited 3 Powell on Mortgages, 957, a. (7) Coleman v. St. Albans, 3 Vesey, 32; Drummond v. Same, 5 Vesey, 438; Mead v. Lord Orrery, 3 Atk. 244; Thomas v. Brigstocke, 4 Russell, 64. (8) Barney v. Sewell, 1 Jac. & Walk. 650. on report. of the amount due. That amount is computed to a day six months after the date of the report.(1) A power of attorney is then usually given to receive the amount, and if not paid, an affidavit is made of the attendance and default, and the court will then, on a motion, of course make an order that the defendant redeem absolutely.(2) It was once held that if the money was not paid by the time appointed by the master, the mortgagor was absolutely foreclosed. But now upon the default, a further order is necessary.(3) The English court extends the time for this payment of the money, very indulgently. The case of Edwards v. Cunliffe, 1 Mad. Rep. 287, is a leading authority upon this point. See also, Office, &c., Masters in Chancery, 219. In the exchequer however, the enlargement of the time is not a matter of course.(4) And Lord Eldon has expressed his regret that the court has so far varied the agreement of the parties. (Reynolds v. Pitt, 19 Vesey, 140.) In Ireland and Scotland this rule does not exist; on this account money is in these counties more frequently lent on bond and mortgage than in England. 3 Powell on Mortgages, 999, n. If exceptions are taken to the report, the time will be enlarged until they are disposed of, and this although the time has expired.(5) In the case of Wilkes v. Wells, in Chancery, January, 1834, counsel varied in some particulars from the English course. The defendant was an alleged lunatic, and a guardian ad litem had been duly appointed. The cause being brought to a hearing, a decretal order was made referring it to a master to report the amount due to the complainant for taxes and assessments paid by him, and also the amount due upon the bond and mortgage, dated the day of mentioned in the bill of complaint, with an account of rents and profits; that the complainant's costs be taxed, and specified in the report. And if the amount was paid within six months after service of a copy of the report (1) See the form, 2 Harr. Pr. 162. and of the decree upon the guardian, that the complainant execute a proper conveyance of the premises, and cancel and satisfy the mortgage of record, &c.(1) See the decree, Appendix, No. 264. After the report had been made and confirmed, an affidavit of service and of the default in paying the amount was made, and on motion of course an order was made making the foreclosure absolute. See Appendix, No. 265. The case of Benedict v. Gilman, (4 Paige, 58,) may perhaps furnish a guide for the practice in most cases. By the decree in that case, the defendants were to elect to redeem within thirty days after service of a copy of the decree, and serve a written notice thereof upon the solicitor of the complainant. If such election was made, a reference was ordered to ascertain the amount due upon the principles declared in the decree. But if such election was not made, they were to be strictly foreclosed. See Appendix, No. 264. By the adoption of this course a reference need never be had except such an election is made. But I presume an affidavit should be made of the omission to elect, upon which the court should be applied to for a final order to make the foreclosure absolute. It was before observed that in England a foreclosure is to perfect without such order. For the form of such an order, see Appendix, No. 265. If an election is made, the master's report should be brought on in the usual manner, and then the court will fix, in the decree upon that report, the time for the payment of the money, and insert the usual clause barring a redemption, unless the money is paid. It would be proper, or at least prudent, in such a case, to apply for a final order making the foreclosure absolute, as was done in Wilkes v. Wells, before referred to. Appendix, No. 265. 7 Upon a bill of foreclosure the plaintiff not being in posses- Possession. sion, it is stated to be the rule, that the court will not put him in possession, but leaves him to an ejectment. On a bill for a redemption it is otherwise. And the position as to one of foreclosure may perhaps be questioned.(2) (1) It will be seen by the bill of complaint, Appendix, No. 263, that a master's deed had been executed in this case. (2) Sutton v. Stone, 2 Atk. 101. Mr. Justice Wright merely says 8 Conveyances. Notwithstanding the great difference between the doctrine of our courts of law and that of England, as to the estate of the mortgagee, I presume that the English chancery rule as to the necessity of a conveyance is not affected. Upon a foreclosure, a conveyance by the mortgagor is not necessary, unless where the title to the mortgage is defective, or the estate or interest intended to pass by it has not passed. In such cases, if the mortgagor has the power of curing the defect, he will be decreed to make the best title he can. See the cases in Powell on Mortgages, Vol. III, p. 965, n. F, and p. 988; also, Pye v. Daubus, 3 Bro. C. C., 598. SECTION III BILL FOR REDEMPTION OF A MORTGAGE. It would be difficult to define with accuracy the persons in whom a right to redeem a mortgage exists. Perhaps it is not too broad a position to assert, that every one who has a legal estate, or recorded lien, in and upon the premises, or who has any equitable interest in them, has this privilege.(1) "A mortgagee who is not in possession, may bring his bill against a mortgagor before admittance for a decree of foreclosure, and after he has obtained such a decree, may bring his ejectment for the possession' of the mortgaged premises." But in Yates v. Hambly, 2 Atk. 360, upon a redemption bill, Lord Hardwicke held that the party was not obliged to resort to ejectment, but should have a decree for possession here. To the same point is Miller v. Beatty, cited by Mr. Seaton, (on Decrees, p. 147.) But it appears to me, that the doctrine of the court in Kershaw v. Thomson, 4 Johns. Ch. Rep., 409, sanctions a decree for possession and a writ of assistance. If the provision of the Revised Statutes, (2 R. S., 312, § 57,) prohibiting the action of ejectment to a mortgagee, extends to the case of an absolute foreclosure, it would seem that the court must necessarily have the power to give possession by its ordinary process. See also 2 R. S., p. 191, § 158; and as to the mortgagee acquiring a new estate, and being a purchaser after the final order of foreclosure, see Thomas: v. Grant, 4 Mad. Rep. 438. (1) The right is in the mortgagor and all claiming under him; the An owner of part of an estate in mortgage, cannot separately redeem his part. The mortgagee is entitled to insist that the whole of the mortgaged premises shall be redeemed together; and for this purpose that all the persons interested in the several parts of the estate as mortgagors, should be made parties to . the bill.(1) The assignee of a partial interest in a mortgage, or the purchaser of a part of the mortgaged preinises, may file a bill to redeem, but he must pay off the whole debt. He cannot apportion it, and redeem the premises to the amount only of his interest.(2) If a second mortgagee bring a bill to redeem the first mortgage, he should make the mortgagor, or, if dead, his heir, a party, though it is not necessary to have his personal representative a party. The natural decree is, that the second mortgagee should redeem the first mortgagee, and that the mortgagor should redeem him, or stand foreclosed. It must therefore be necessary to have the real representative of the mortgagor before the court.(3) And the heir of the mortgagor must be made a party in such a case, although the second mortgage is only of part ground being an interest in, or a lien on land. It belongs to a volunteer; to the tenant of a mortgagor; to judgment creditors; tenants by elegit, statute merchant or staple in England; to the guardian of an infant, or committee of a lunatic; to the jointress, dowress, or tenant by the curtesy; to subsequent mortgagees. See Powell on Mortgages, Vol. I., 261, et passim. In general, the party seeking to redeem should have a legal title. But the right of an equitable incumbrance is also recognised; for example, if a man on his marriage, article that certain lands be settled on his wife for life with remainders over, and afterwards mortgages the same pre. mises to one who has no notice of the articles, and dies, his widow, who has an equitable estate for life, will be entitled to redeem: She is in* equity a purchaser under the articles.(1) (1) S. T. Plumer, in Cholmondely v. Clinton 2 Jac. & W. 189. (2) Palk v. Clinton, 12 Vesey, 48; Calkins v. Munsell, 2 Root's Rep. 333. (3) Lord Thurlow, in Tell v. Brown, 2 Br. C. R., 278. (1) Haymer v. Haymer, 2 Ventris, 343. See also Spregg v. Binkes, 5 Vesey, 587. Hiern ́v.' Mills, 13 Vesey, 114: |
