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will be held liable differs in different States; but it is generally based on the rental value of the premises. 1 ning with the land, and action for breach trict court. A new undertaking was given, may be brought by the personal represen- prospective in form, and containing no tative. Hurt V. Dougherty, 3 Sneed language which indicated an intention to (Tenn.), 418.

extend the liability of the obligors for the 1. A judgment may be rendered on the use of the premises back of the time when bond against the obligors jointly, for whal- the undertaking was executed. Held, that ever amount the sureties are liable under the sureties thereto were not liable for the the evidence, to be assessed by the jury. use and occupation of the premises prior Spear v. Lomax, 42 Ala. 576.

to the time when the undertaking was B forcibly dispossessed A from land, given, and that testimony concerning the and erected improvements thereon. A same was admissible. Henrie i. Buck obtained judgment in a suit of forcible en (Kan.), 18 Pac. Rep. 228. try and detainer, and B appealed, giving In an action against the sureties upon the usual bond to pay double the rental an undertaking, wherein they admit the value of the lot. A prevailed in the dis- execution of the same, but deny any trict court, and B gave a super sedeas liability thereunder, the jury trying the bond, and took the case to the supreme case should, under the Civil Code, Kansas, court by writ of error, where A also pre- SS 267, 288, return a general verdict vailed. Pending the suit, B attempted to assessing the full amount of recovery to remove his improvements, and A ob- which plaintiff is entitled. Henrie 7. Buck tained an injunction and gave an injunc. (Kan.), 18 Pac. Rep. 228. tion bond. The injunction was finally dis- In Tennessee, it was held that no judgsolved on the ground that A was suffi- ment could be rendered on the appeal ciently protected by the appeal bond. B bond for rents accrued, pending the apbrought suit on the injunction bond, and peal. Ladd v. Riggle, 6 Heisk. (Tenn.) A set up the appeal and supersedeas bonds 620. by way of counter-claim. Held, that A Judgment for Costs. — Upon an appeal was entitled to double the rental value of from a justice of the peace, in an action the lot and the improvements, and that of forcible entry and detainer, the appelthis liability was not affected by the super late court, upon dismissing the appeal, sedeas bond. Coonradt v. Campbell, 29 has no jurisdiction to enter juagment for

costs against the security in the appeal In an appeal from the judgment of bond. Such a judgment would be void, a justice, in an action of forcible en- and an execution and sale of lands under try, the undertaking given by the ap- it would confer no title upon the purpellant was found insufficient by the dis- chaser. Keary v. Baker, 33 Mo. 603.

184

Kan. 391.

Sale, 249.

FORECLOSURE OF MORTGAGES. 1. Definitions, 185.

VII. Conduct of Sale, 246. 1. Strict Foreclosure, 185.

VIII. Sale Not Within Statute of 2. Foreclosure by Entry and Pos

Frauds, 248. session, 186.

IX. Duty of Officer Conducting 3. Foreclosure by Sale, 186.

Sale, 248. 4. Various Modes Considered, 186. X. Rights, Relations, and ObliII. When the Right of Fore

gations of Purchaser at the closure Accrues, 188. III. When Right of Foreclosure XI. Report of Sale, and Action is Barred, 197.

Thereon, 254. IV. Foreclosure by Sale the Pre- 1. Opening the Biddings. 254. vailing Mode, 204.

2. Confirmation of the Sale, 257. 1. Nature of the Remedy, 204. 3. Setting Aside Sale, and Resale, 258. V. Proceedings in Foreclosure XII. Judgment for Deficiency, 264. Sales, 205,

[205. XIII. Disposition of the Proceeds 1. In what Courts to be Brought,

of Sale, 269. 2. Parties in Foreclosure Suits, XIV. Remedies Against the Pur3. Pleadings, 229.

[206.

chaser, 272. 4. Defences, 230.

XV. Rights of the Purchaser, 273. 5. Proceedings Before Sale, 231. XVI. Appeal, 277. 6. Receiver, 234.

[Sale, 240.

XVII. Foreclosure in Power of Sale VI. Decree for Foreclosure and

Mortgages, 278. 1. Conclusiveness of Decree, 245. XVIII. Foreclosure of Chattel Mort2. By Whom the Sale Should be

gages, 278. Made, 245. I. Definition. - Foreclosure in its most comprehensive sense is a proceeding on the part of the mortgagee, or other owner of the mortgage claim, either judicial or in pais, by means of which the property mortgaged is applied, either directly or through its proceeds, towards the payment of the mortgage debt by the barring or foreclosing of the mortgagor's right to redeem.1

Foreclosure is of four kinds: Strict foreclosure, foreclosure by entry and possession, foreclosure by advertisements, and foreclosure by sale."

I. Strict Foreclosure is a proceeding in equity, instituted by the mortgagee, for the purpose of requiring the mortgagor to pay the debt within a time to be specificd in the decree ; otherwise, to be forever barred of his right to redeem ; and by virtue of which the mortgagee becomes invested with the absolute title to the land after the expiration of the time limited for redemption.3

1. In Hilliard on Mortgages, it is de- might be obtained, in the nature of a fined as “ The process by which a mort. foreclosure, by which, aíter certain judicial gagee himself acquires or transfers to a proceedings, the absolute dominion of purchaser an absolute title to the prop- the property would be passed to the erty of which he has previously been mortgagee. 2 Story Eq. Jur., $ 1024. only the corditional owner upon The severity of the proceeding has been which he has previously had a mere lien mitigated by enlarging the time from one or incumbrance." Vol. 2, p. 1. This specified period to another within which definition is too narrow. See Rapalje & the mortgagor may redeem, as the chan. L. Law Dict., vol. I. p. 530.

cellor's discretion may be moved by the 2. These various modes of procedure, peculiar equities of the case. Perine 7'. except that by advertisement, were de- Dunn, 4 Johns. Ch. (N. Y.) 140. rived from the civil law. 2 Story Eq. Origin of Strict Foreclosure. --As early as Jur., SS 1008, 1009, 1024.

the reign of Charles I., courts of equity 3. By the civil law, “in cases where a began to interpose, at the instance of the sale could not be made effectual, a decree mortgagor, to relieve him from the hard.

or

2. Foreclosure by Entry and Possession is of two kinds: An act in pais, on the part of the mortgagee, by his entering upon the mortgaged lands and holding them for a reasonable time, during which he receives the rents, and must apply them on the debt, and within which the mortgagor may redeem, but, if the mortgagor fails, the right to redeem becomes foreclosed, and the mortgagee becomes invested with the absolute estate in the land ;1 a judicial proceeding by writ of entry, in which a conditional judgment is entered providing that, upon default of the mortgagor to perform the conditions of the mortgage within a specified time, possession of the premises shall be delivered to the mortgagee and the right to redeem be forever barred.

3. Foreclosure by Sale is a judicial proceeding instituted by the mortgagee, for the extinction of the equity of redemption and for a sale of the premises; in which, upon the default of the mortgagor to redeem within the time limited in the decree, a sale of the mortgaged premises is ordered ; and in which, at the sale made in pursuance of the decree, the purchaser gets title to the land, freed from the equity of redemption. [But there may be, and frequently are, cases of foreclosure sales where the sale is made subject to redemption.]

4. Various Modes Considered. In all these various modes of foreClosure the mortgagee, or purchaser in case of sales, becomes the absolute owner of the land (except in the special class of cases where the sale is subject to redemption); and the land or its proceeds becomes either payment in full of the debt or payment pro tanto, according to its value, or amount realized upon the sale.3

Strict foreclosure is very rarely resorted to in the American courts. In a large majority of the States it is not recognized. It

ship of the assertion of the legal rights of Clinton, 2 Jac. & Walk. 191. This time the mortgagee, by permitting him to re- has been greatly shortened in the Amer. deem after condition broken, and after the ican States where this mode of procedure mortgagee had entered into possession, is still recognized. 2 Jones on Mori. upon the payment or tender of the debt (2d Ed.), SS 1114, 1145, and note 2. within a reasonable time, to be specified 2. The purchaser gets the title as in the decree. And out of this arose the against all the parties to the foreclosure custom of mortgagees--thus anticipating suit, and only against these; and, therethe exercise of such right by the mort- fore, if persons having an interesi in the gagor-of themselves filing a bill to equity of redemption-subsequent enforeclose the right to redeem, by obtain cumbrances or others-have not been ing a decree requiring the mortgagor to brought in as parties to the suit, he buys pay the debt within a time to be specified subject to their rights and interests. in the decree, or to be forever barred, Wiltsie on Mortgage Foreclosure, $ 61; and the mortgagee's estate thereupon to 2 Jones on Mort. (2d Ed.), SS 1396,1.431. become absolute. Such was the origin 3. Briggs v. Richmond, Pick. of strict foreclosure in the English courts. (Mass.) 392; Johnson z'. Candage, 31 Me. 2 Jones on Mort. (2d Ed.), S 1538. 28: Spencer v. Harford, 4 Wend. (N. Y.)

1. The ordinary limitation of time 381; Globe Ins. Co. v. Lansing, 5 Cow. within which a mortgage was redeemable (N. Y.) 381; Hatch v. White, 3 Gall. after the mortgagee had entered upon the (U. S.) 152; Tooke v. Hartley, 2 Dick. premises was twenty years. Corbett v. 785; 2 Jones on Mort. (2d Ed.) $ Barker, I Anst. 138; Cholmondeley v. 950.

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is permitted, in exceptional cases, in Alabama,' California, ? Illinois, Minnesota, 4 New York, 5 and Wisconsin 6 In Conneeticut' and Vermonts it is the usual mode of procedure.

The pleadings in strict foreclosure suits are substantially the same as in other suits in equity; and all persons having an interest in the mortgaged premises should properly be made parties. The decree bars the equity of redemption unless the mortgaged debt be paid by a day certain, designated in the decree.9 If the debt is paid, the property is to be restored to the mortgagor and proper conveyance made ;1° if there is failure to pay, the title will be vested absolutely in the mortgagee, and a writ of assistance or other ap propriate process issued to put the mortgagee in possession.11 in the latter particular, the practice in the American courts differs from that in the English courts, where the decree merely forecloses the mortgagor's equity of redemption, and leaves the mortgagee to his legal remedies to obtain possession. 12

It is only where the land is of sufficient value to pay the debt that a strict foreclosure operates as a satisfaction of it ; otherwise, it is a payment pro tanto. 13

Foreclosure in pais by entry and possession, exists in only four of the

American States, viz., Maine, New Hampshire, Massachusetts, and Rhode Island. In each of these States it is regulated by statute. 14

1. Hitchcock v. U. S. Bank, 7 Ala. 386. 14. 2 Jones on Mort. (2d Ed.), SS 12382. Goodenow v. Ewer, 16 Cal. 461. 1246. In Jones v. Bowler & Stone, 74 Me.

3. Stephens v. Birchneil, 27 Ill. 445; 310, it was held that it would not suffice Sheldon v. Patterson, 55 Ill. 507.

that a consent in writing to enter had 4. Heyword v. Judd, 4 Minn. 483. been given the mortgagee; there must be

5. Benedict v. Gilman, 4 Paige (N. an actual entry upon the premises after Y.) 58; Blanco v. Foote, 32 Barb. (N:Y.) such written consent; and that the mort535.

gagee sending a lease, signed by him6. Landon v. Burke, 36 Wis. 378. self, to the mortgagor, who took the 7. Genl. Laws 1877, SS 1417-1428. lease, but did not sign it, and continued

8. G, S. 1862, ch. 29, SS 74-79, ch. in possession, is not such actual entry; it 40. SS 7-11; Paris v. Hulett, 26 Vi. 308. cannot be regarded as the entry of the

It does not prevail in Missouri. O'Fal mortgagee, or that the mortgagor is holdlon v. Clopton, 89 Mo. 284.

ing possession for the mortgagee; that a 9. The time is within the discretion purchaser from the mortgagee, becoming of the court. Johnson v. Donnell, 15 such after the lapse of a year from the give Ill. 97; Clark v. Rayburn, 8 Wall. (U. ing of the written consent, stood in the poS.) 318.

sition of the mortgagee, as he had notice 10. Kendall v. Treadwell, 5 Abb. (N. from the records that his vendor had acY.) Pr. 16.

quired title through a mortgage, and con11. Landon v. Burke, 36 Wis. 378; Bus- sequently such purchaser took only such well v. Peterson, 41 Wis. 82.

title as his vendor could convey. The 12. Sutton v. Stone, 2 Atk. 101; Seaton's mortgagor had made a seasonable deDecrees, 140.

mand, both on the mortgagee and his 13. Paris v. Hulelt, 26 Vt. 308; Edger- vendee, to render a true account of the ton v. Young, 43 Ill. 470; Vansanı v. All- amount due upon the mortgage, which man, 23 III. 30; Spencer v. Harford, 4 they refused to do. It was held that there Wend. (N. Y.) 381; Morgan v. Plumb, 9 had been no foreclosure, and that the Wend. (N. Y.) 287; Bassett v. Mason, 18 mortgagor was entitled to redeem. Conn. 136; New Haven Pipe Co. ?'. In case where the mortgagee, before Work, 44 Conn. 230; Smith v. Packard, the expiration of three years from the 19 N. H. 575; Newell v. Wright. 3 Mass. date of his entry upon the land for the 150; A mory v. Fairbanks, 3 Mass. 562. purpose of foreclosure of a mortgage

When the time for redemption after entry has expired without redemption having been made, the foreclosure becomes complete, the mortgagee becomes invested with the absolute title, and the debt is extinguished to the extent of the value of the land.1

Foreclosure by writ of entry exists only in those States where entry in pais is recognized. In this proceeding a conditional judg. ment is entered, providing that the mortgage debt be paid within a specified time; otherwise, that the mortgagee be put in possession.2

In order to have this remedy, a legal estate or interest in the land must exist in the mortgagee, his assignee, or representative, as it is a proceeding at law. The legal consequences of possession so obtained, upon the respective estates and interests of the parties in the premises, and upon the mortgage debt, are the same as in case of possession by act in pais.

II. When the Right of Foreclosure Accrues.—Ordinarily, the right to foreclosure accrues upon the maturity of the debt, and its non-payment;' but it may accrue upon the happening of any event

thereon, had received the proceeds of Spencer, 14 Mass. 409; Amidown v. other security held by him for the same Peck, 11 Metc. (Mass.) 467. debt, but not sufficient to liquidate it, this 3. 2 Jones on Mortg. SS 1247, 1280 does not, of itself, sufficiently evince an (2d Ed.). intent on his part to waive his right of 4. 2 Jones on Mortg. (2d Ed.), ch. foreclosure. Tompson v. Tappan, 139 29. Mass. 506.

Statutory Foreclosure.-For require. A certificate of entry,under Gen. Stats., ments under the Arkansas statute, see ch. 140, SS 1, 2, sworn to by the mort. Perkens & Sumner v. Keller & Angel, 43 gagee before himself as a justice of the Ark. 53. Under the Michigan statute, peace, is invalid, and of no avail for the Herbert v. Butte, 42 Mich. 489 Failure purpose of foreclosure. Judd v. Tryon, to serve tenant in possession, with no131 Mass. 345.

tice, does not prevent statutory foreWhere an assignee of a mortgage, in closure, under the laws of Minnesota, possession for breach of condition before from being effectual as to the mortforeclosure. had cut and carried away gagor, it appearing that the mortgagor, trees growing on the land, the heirs at who was in possession of a part of the law of the mortgagor cannot maintain land, although not residing on it, was trover against him for the same. Place duly served. Holmes v. Crummet, 30 et al. v. Sawtell, 142 Mass. 477.

Minn. 23; Miller v. Miller, 48 Mich. 311; A real estate mortgage gives only a Crater v. Smith, 42 N. J. Eq. 318; Bellien on the land and its rents and profits, mont v. Cornen, 48 Conn. 338. to be enforced, as in other cases, in the 5. See Kelly v. Bogardus, 51 Mich. 522; district court, even although the mortgage Wilkinson v. Flowers, 37 Miss. 579, 584; contain a stipulation which seems to give S. C., 57 Am. Dec. 78; James v. Fisk, 17 the mortgagee the right, after condition Miss. (I Smed. & M.) 144, 150; s. C., 47 broken, to take possession of the mort- Am. Dec. III. gaged premises and to receive the rents Necessity for Demand. -See Burnham and profits; it is not operative to transfer v. Allen, 67 Mass. (1 Gray) 496; Locklin the title to the mortgagee of the rents v. Moore, 57 N. Y. 362; Hills v. Place, 48 and profits. Seckler v. Delfs, 25 Kan. N. Y. 520; s. C., 8 Am. Rep. 558; 36 How. 159.

(N. Y.) Pr. 26; Pusey v. New Jersey & L. 1. 2 Jones on Mortg. $ 1264 (2d Ed.). R. Co., 14 Abb. (N. Y.) Pr. 439; Hirst

2. 2 Jones on Mortg. $ 1276 (2d Ed.); v. Brooks, 59 Barb. (N. Y.) 134: Gillett Doten v. Hair, 16 Gray (Mass.), 149; v. Balcom, 6 Barb. (N. Y.) 170; Caldwell Fletcher v. Carey, 103 Mass. 475; Palmer v. Cassidy, 8 Cow. (N. Y.) 271; Nelson v. Fowley, 5 Gray (Mass.).545; Holbrook v. Bostwick, 5 Hill (N. Y.), 307; S.C., 40 v. Bliss, 9 Allen (Mass.),69; Sparhawk v. Am. Dec. 310; Walcott v. Van Santvoord, Wills, 5 Gray (Mass.), 427; Walcott v. 17 Johns. (N. Y.) 248; s. C., 8 Am. Dec.

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