Mortgages («).

Action for Foreclosure or Sale.

1. The plaintiff is mortgagee of lands belonging to the defendant.

Rights of (a) Until the day appointed by the mortgage deed for payment arrives, mortgagee. the mortgagee is not entitled to enforce his securities, but when that day, which is usually six months after the date of the deed, is come, and default has been made in payment, the mortgagee may enforce payment, and the mortgagor may claim to redeem. It has been said that the rule that no man is to be vexed by a multiplicity of suits does not apply to mortgagors, and there is authority for saying that after default in payment the mortgagee may pursue concurrently all his legal and equitable remedies. He may sue the mortgagor upon his personal covenant, he may appoint a receiver of the rents and profits of the mortgaged estate, or ask the Court to make the appointment, he may bring ejectment to recover possession of the mortgaged property, and he may sue for foreclosure. But it may well be doubted whether a mortgagee who was guilty of this oppressive exercise of his strict rights would not be visited by the Court with the deprivation of his costs.

Powers of

If the mortgagee should sue upon the covenant the action would have nothing peculiar about it, and judgment might generally be obtained under R. S. C. Order XIV. This course is, however, seldom taken.

Large powers of appointing a receiver of the rents and profits of the appointing mortgaged estate have been conferred upon mortgagees by the Conveyreceiver. ancing and Law of Property Act, 1881, ss. 19-25, thus obviating the necessity which previously existed of applying to the Court, but the process of liquidating through the intervention of a receiver, who is treated as the agent of the mortgagor and not of the mortgagee, is so rare that it is seldom resorted to except as ancillary or supplemental to a foreclosure action.

Rights to an order

for sale.

There may be cases in which a mortgagee finds it desirable or necessary to enter upon or obtain possession of the mortgaged property, but such a course is open to the objection that for twelve years the mortgagee will have to keep accounts as mortgagee, not knowing whether he will be redeemed or not, and may after the lapse of time, when contradiction is difficult, be charged with "wilful default," while his prospects of being allowed for the cost of permanent improvements of the property are always doubtful.

Sometimes a mortgagee who desires to obtain payment of his debt transfers his debt and security to a third person, but this course is not advisable without the concurrence of the mortgagor, for, if that be wanting, there is some doubt as to the right of the mortgagee to charge the costs of the transfer of the mortgage against the mortgagor, and the mortgagor will not be bound by any statement of accounts arrived at behind his back by the mortgagee and the transferee.

The usual practice is for a mortgagee who cannot obtain payment except by realising his security to proceed to foreclosure or sale. The Court has for some time had a limited power of ordering a sale of the mortgaged property in suits affecting mortgage securities, but the law in this respect has been revolutionised by the Conveyancing and Law of Property Act, 1881. S. 25 enacts :--

(1.) Any person entitled to redeem mortgaged property may have a judgment or order for sale instead of for redemption in an action brought by him either for redemption alone, or for sale alone, or for sale or redemption, in the alternative.

2. The following are the particulars of the mortgage :-
(a) (Date) January 1, 1882. The plaintiff was the mort-
gagee, and the defendant the mortgagor.

(2.) In any action, whether for foreclosure, or for redemption, or for sale, or for the raising and payment in any manner of mortgage money, the Court, on the request of the mortgagee, or of any person interested either in the mortgage money or in the right of redemption, and notwithstanding the dissent of any other person, and notwithstanding that the mortgagee or any person so interested does not appear in the action, and without allowing any time for redemption or for payment of any mortgage money, may, if it thinks fit, direct a sale of the mortgaged property, on such terms as it thinks fit, including, if it thinks fit, the deposit in Court of a reasonable sum fixed by the Court, to meet the expenses of sale and to secure performance of the terms.

(3.) But, in an action brought by a person interested in the right of redemption and seeking a sale, the Court may, on the application of any defendant, direct the plaintiff to give such security for costs as the Court thinks fit, and may give the conduct of the sale to any defendant, and may give such directions as it thinks fit respecting the costs of the defendants, or any of them.

(4.) In any case within this section the Court may, if it thinks fit, direct a sale without previously determining the priorities of incumbrancers.

(5.) This section applies to actions brought either before or after the commencement of this Act.

(7.) This section does not extend to Ireland.

The Court may exercise its power to direct a sale at any time before foreclosure absolute. (Union Bank of London v. Ingram, 20 Ch. Div. 463.) Of course the power of the Court to direct a sale does not, any more than a power of sale in the mortgage deed, affect the right of foreclosure (Slade v. Rigg, 3 Hare, 35); but unless the security is insufficient, and the mortgagor refuses to provide the expenses of a sale, the Court prefers sale to foreclosure.

Terms on which sale ordered.

Foreclosure has always been the right of the legal mortgagee. As to Right to equitable mortgages, there has been some controversy, but the better foreclosure. opinion seems to have been that where the mortgage gave the mortgagee

a right to call for a conveyance of the legal estate, he was entitled to foreclosure; but that where it merely created a charge or lien on the estate, his remedy was sale.

The Court does not decree foreclosure against the Crown, but usually directs a sale (Reeve v. Att.-Gen., 2 Atk. 223; Rogers v. Maule, 1 M. & C. C. C. 4), and the rule is the same where the mortgagee's duty conflicts with his interest, as where he became executor to the mortgagor. (Lucas v. Seale, 2 Atk. 56.)

The practice in sales by the Court is now regulated by R. S. C. Order LI., rr. 1-6, by which it is enacted: If the decree for foreclosure is made, payment must be made of the amount found due by the chief clerk's certificate at the appointed day, together with subsequent interest and costs, otherwise the foreclosure will be made absolute. But there are many cases in which the time for payment has been enlarged where the day has been allowed to slip by owing to accident, mistake, or surprise (Fisher on Mortgages, p. 1055); and if, after the foreclosure has been made absolute, the mortgagee should sue the mortgagor upon his personal covenant, he will thereby "open the foreclosure," i, e., the mortgagor will then be entitled to redeem. (Dashwood v. Blythway, 1 Eq. Cas. Abr. 317.) And upon the same principle, if the mortgagee should sell the foreclosed estate, he cannot afterwards sue the mortgagor upon his

Onus of

proving negligence usually on the plaintiff.

Injuries caused by mere acci

dent not

actionable.

Any neg. ligence not enough.

When neg

ligence may be inferred from the mere fact

of the occurrence.

The plaintiff claims :

(1) Sale of the said bonds.

(2) Application of the proceeds in payment of his debt.
(3) Distribution of the surplus among the parties entitled.

Negligence (a).

1. Claim by Plaintiff for Personal Injuries and Damage to

Carriage.

1. The plaintiff has suffered damage from personal injuries to the plaintiff, and damages to his carriage, caused by the

(a) A person is liable for his or her own negligence, or for the negligence of a servant, causing actual injury or loss to another. But it is not enough that the plaintiff has been injured, and so injured by the act of the defendant. To found an action there must be negligence on the part of the defendant, directly bringing about the injury; and the onus of proving such negligence, except in a few cases where the law presumes it. lies on the plaintiff.

Where the injury is the result of mere accident, no action lies; thus, where the coachman was driving in the middle of the road, and not on his own side, but there were no other coaches on the road, and the horses took fright and overturned the coach, this was held to afford no evidence

of negligence (Wakeman v. Robinson, 1 Bing. 213); so where an injury was inflicted by a horse on which the defendant was riding, and there was no proof that he omitted to do anything in his power to prevent the accident, the plaintiff was nonsuited. (Hammack r. White, 11 C. B. N. S. 588; L. J. 31 C. P. 129: Manzoni v. Douglas, 50 L. J. Ch. 289; 6 C. P. Div. 145: Tillett v. Ward, 10 Q. B. Div. 17.)

Any act of negligence on the part of the defendant is insufficient. The negligence must in some way connect itself or be connected by evidence with the accident." (Jackson v. The Metropolitan Ry. Cô. 3 App. Cases, 193; 37 L. T. N. S. 670, per Lord Cairns.) It is not sufficient to prove some act of negligence, unless it be proved that such negligence was the direct cause of the injury complained of.” (Ibid.) The pleader is referred to the case cited—Jackson v. The Metropolitan Ry. Co-as the most recent and most authoritative exposition of the law on this subject.

It has been said that the onus lies on the plaintiff of proving negiigence; but the accident may take place under such circumstances as to be prima facie evidence of negligence, for the happening of something that would not happen if ordinary skill and care were used is evidence of negligence (Gee v. Metropolitan Railway Co., L. R. 8 Q. B. 175, per Brett, J.), as where a collision takes place between two trains of the same company. (Skinner v. L. § Brighton Ry. Co., 5 Exch. 787.) So proof that a stage-coach broke down raises a presumption that the accident arose either from the unskilfulness of the driver or the insufficiency of the coach. (Christie v. Griggs, 2 Camp. 79.) So, where B., walking in a street in front of the house of a flour-dealer, was injured by a barrel of flour falling upon him from an upper window, it was held that the mere fact of the accident was evidence to go to the jury in an action against the flour-dealer. (Byrne v. Bvadle, L. J. 33 Ex. 13. See also Sett v. London Dock Co., L. J. 34 Ex. 17, 220, Ex. Ch. ; Kearney v. L., Brighton, & S. C. Ry. Co., L. R. 6 Q. B. 759; White v. France, 2 C. P. Div. 308; 46 L. J. C. P. 823.) It is the absolute duty of an occupier of premises,

defendant or his servant on the 15th of January, 1882, negligently driving a cart and horse in Fleet Street.

2. Particulars of expenses :Charge of Mr. Smith, surgeon

Charge of Mr. Jones, coach-maker.

£10 10 0

14 5 6

£24 15 6

plaintiff claims £150 damages.

lamp overhanging the footway to prevent its becoming danger-
epublic, and he cannot shift the liability arising from such
himself by having employed a competent person to repair it.
Ashton, 1 Q. B. D. 314; 45 L. J. Q. B. 260.)

a person is liable for the act of a servant causing injury to
h liability only exists where the negligence was committed
on the servant was going about his master's business, and
rinjudiciously as it turns out in the event, as he thinks in
is employer. It is long since the law was laid down that
answerable for the wilful and malicious act of his ser-
V. Crickett, 1 East, 106.) Thus, where the defendant's
and not for the purpose of executing his master's
plaintiff's horses, and thereby produces the accident,
Mable; but where the servant, in the course of his
order to extricate himself from a difficulty, so strikes
Cciously, his master is liable. (Croft v. Alison, 4 B.
ant at the time of the accident is engaged on his
er is not responsible, as in the case of Storey v.
76. There the defendant's carman was directed
goods at a certain place, and the carman drove
the goods in it in an opposite direction, in order
business of his own, and it was held that the
an injury done by the cart while it was
arman. On the same principle, Sterens v.
was decided. But where a servant uses his
uster's business, and with his knowledge, the
rvant may on the same occasion do business
L. J. 26 C. P. 235.)

A master is

not liable

for the

wilful and malicious act of servant.

tractors.

erally liable for the negligence of a servant, Liability
Oce of another who contracts with him to for con-
contractor alone is liable, and not his
extend to protect one who is himself
id who engages another to do it for him,
which may be injurious to his neigh-
ex v. Percival, 8 App. Cases, 443,
Prate, 1 Q. B. Div. 321, In the
11 Q. B. D. 503, the defendant, a
staging outside a ship in his dock
was a workman
the ship, and
he negligent
e way, and
reversing
fendant.

Redemp tion suits.

Limitation

of right to redeeni.

(b) (Sum secured) £500.

(c) (Rate of interest) £5 per cent. per annum.

(d) (Property subject to mortgage) Deep Dene Farm, in the parish of St. James, in the county of Middlesex.

(e) (Amount now due) £572 10s.

personal covenant for any deficiency, because he could not, after the sale, restore the estate to the mortgagor if the latter should pay him his principal, interest, and costs. (Lockhart v. Hardy, 9 Beav. 349.) But it would be otherwise, we think, if the mortgagee had sold the estate, not as owner of a foreclosed estate, but as mortgagee under his power of sale. (Cf. Rudge v. Dickens, L. R. 8 C. P. 358.)

And a foreclosure will be opened if it has been obtained by perjury or fraud. (Loyd v. Mansell, 2 P. Wms. 73.)

Where a sale is ordered, it is usual to give the conduct of it to the person most interested in selling well, i. e., the mortgagee when the security is insufficient, and the mortgagor when the security is ample.

It is not necessary here to state the history of the mortgagor's right to redeem the mortgaged estate on payment of what may be found due to the mortgagee for principal, interest, and costs, an offer to pay which was formerly essential to the plaintiff's bill, but is now no longer necessary, being implied. In a redemption suit the mortgagor cannot question the title which he has conferred upon the mortgagee, nor can the mortgagee deny the title of the mortgagor. He is, however, at liberty to show that the plaintiff is not in fact the successor in title of the mortgagor. Other common defences to the action are release of the equity of redemption, statute of limitations, and possession under a foreclosure decree binding on the plaintiff. Under the statute 4 & 5 Wm. & M. c. 16, it would be a good defence that the mortgagor concealed a prior mortgage when he mortgaged to the defendant, but the disposition of the Courts has been to construe this statute strictly. (Kennard v. Futroye, 2 Giff. 81; Stafford v. Selby, 2 Vern. 589.)

It is a common stipulation in mortgage deeds that the mortgage money shall not be payable until a certain time has elapsed. By this means the right to redeem is suspended, but an agreement in the original mortgage deed that there should be no right of redemption would be void, as repugnant to the nature of a mortgage. (See Mr. Fisher's Treatise on Mortgages, p. 729, et seq.) The rule is "once a mortgage always a mortgage"; upon this principle equity disapproves attempts to limit the exercise of the right of redemption during the life of the mortgagor or of any one else. (Newcomb v. Bonham, Vern. 8.)

The right to redeem will be gone after the mortgagee has held possession of the property for twelve years without any acknowledgment of the mortgagor's title (Real Prop. Limitation Act, 1874, s. 7), and the time will not be extended on the ground of the plaintiff's disability. (Forster v. Patterson, 17 Ch. Div. 104.) It is to be noted that the acknowledgment, in order to save the statute, must be given to the mortgagor, or to some person claiming his estate, or to his agent, and must be in writing. In the case of a pledge, apart from the statutes relating to pawnbrokers, the right to redeem lasts throughout the pledgor's life and no longer. (Rateliff v. Daries, 1 Buls. 29.) The old rule that the right to redeem cannot be barred so long as the mortgagor holds possession of any part of the mortgaged premises no longer exists. (Kinsman v. Rouse, 17 Ch. Div. 97.)

As to the avoidance of unconscionable securities taken from expectant heirs, see Nevill v. Stenning, 15 Ch. Div. 679. The principle on which a Court of Equity has granted relief from an unconscionable bargain