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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 may be brought by the personal representative. Hurt v. Dougherty, 3 Sneed (Tenn.), 418.

1. A judgment may be rendered on the bond against the obligors jointly, for whatever amount the sureties are liable under the evidence, to be assessed by the jury. Spear v. Lomax, 42 Ala. 576.

B forcibly dispossessed A from land, and erected improvements thereon. A obtained judgment in a suit of forcible entry and detainer, and B appealed, giving the usual bond to pay double the rental value of the lot. A prevailed in the district court, and B gave a supersedeas bond, and took the case to the supreme court by writ of error, where A also prevailed. Pending the suit, B attempted to remove his improvements, and A obtained an injunction and gave an injunction bond. The injunction was finally dissolved on the ground that A was sufficiently protected by the appeal bond. B brought suit on the injunction bond, and A set up the appeal and supersedeas bonds by way of counter-claim. Held, that A was entitled to double the rental value of the lot and the improvements, and that this liability was not affected by the supersedeas bond. Coonradt v. Campbell, 29 Kan. 391.

trict court. A new undertaking was given, prospective in form, and containing no language which indicated an intention to extend the liability of the obligors for the use of the premises back of the time when the undertaking was executed. Held, that the sureties thereto were not liable for the use and occupation of the premises prior to the time when the undertaking was given, and that testimony concerning the same was admissible. Henrie v. Buck (Kan.), 18 Pac. Rep. 228.

In an action against the sureties upon an undertaking, wherein they admit the execution of the same, but deny any liability thereunder, the jury trying the case should, under the Civil Code, Kansas, §§ 267, 288, return a general verdict assessing the full amount of recovery to which plaintiff is entitled. Henrie 7. Buck (Kan.), 18 Pac. Rep. 228.

In Tennessee, it was held that no judgment could be rendered on the appeal bond for rents accrued, pending the appeal. Ladd v. Riggle, 6 Heisk. (Tenn.) 620.

Judgment for Costs. Upon an appeal from a justice of the peace, in an action of forcible entry and detainer, the appellate court, upon dismissing the appeal, has no jurisdiction to enter judgment for costs against the security in the appeal bond. Such a judgment would be void, and an execution and sale of lands under it would confer no title upon the purchaser. Keary v. Baker, 33 Mo. 603. 184

In an appeal from the judgment of a justice, in an action of forcible entry, the undertaking given by the appellant was found insufficient by the dis

FORECLOSURE OF MORTGAGES.

I. Definitions, 185.

1. Strict Foreclosure, 185.

2. Foreclosure by Entry and Pos-
session. 186.

3. Foreclosure by Sale, 186.

4. Various Modes Considered, 186. II. When the Right of Foreclosure Accrues, 188. III. When Right of Foreclosure is Barred, 197.

IV. Foreclosure by Sale the Pre-
vailing Mode, 204.

1. Nature of the Remedy, 204.
V. Proceedings in Foreclosure
Sales, 205.
[205.
1. In what Courts to be Brought,
2. Parties in Foreclosure Suits,
3. Pleadings. 229.
[206.

4. Defences, 230.
5. Proceedings Before Sale, 231.
6. Receiver, 234. [Sale, 240.
VI. Decree for Foreclosure and
1. Conclusiveness of Decree, 245.
2. By Whom the Sale Should be
Made, 245.

1. In Hilliard on Mortgages, it is defined as "The process by which a mortgagee himself acquires or transfers to a purchaser an absolute title to the property of which he has previously been only the conditional owner or upon which he has previously had a mere lien or incumbrance.' Vol. 2, p. I. This definition is too narrow. See Rapalje & L. Law Dict., vol. I. p. 530.

""

VII. Conduct of Sale, 246.

VIII. Sale Not Within Statute of
Frauds, 248.

IX.

Duty of Officer Conducting
Sale, 248.

X.

Rights, Relations, and Obli-
gations of Purchaser at the
Sale, 249.

Report of Sale, and Action
Thereon, 254.

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.

2. These various modes of procedure, except that by advertisement, were derived from the civil law. 2 Story Eq. Jur., SS 1008, 1009, 1024.

3. By the civil law. "in cases where a sale could not be made effectual, a decree

XI.

1. Opening the Biddings, 254.
2. Confirmation of the Sale, 257.

3. Setting Aside Sale, and Resale, 258. XII. Judgment for Deficiency, 264. XIII. Disposition of the Proceeds of Sale, 269.

XIV. Remedies Against the Purchaser, 272.

XV. Rights of the Purchaser, 273.
XVI. Appeal, 277.

XVII. Foreclosure in Power of Sale
Mortgages, 278.
XVIII. Foreclosure of Chattel Mort-
gages, 278.

1. 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 specified 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."

might be obtained, in the nature of a foreclosure, by which, after certain judicial proceedings, the absolute dominion of the property would be passed to the mortgagee. 2 Story Eq. Jur., § 1024. The severity of the proceeding has been mitigated by enlarging the time from one specified period to another within which the mortgagor may redeem, as the chancellor's discretion may be moved by the peculiar equities of the case. Perine z. Dunn, Johns. Ch. (N. Y.) 140.

Origin of Strict Foreclosure. As early as the reign of Charles I., courts of equity began to interpose, at the instance of the mortgagor, to relieve him from the hard

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.]2

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 the mortgagee, by permitting him to redeem after condition broken, and after the mortgagee had entered into possession, upon the payment or tender of the debt within a reasonable time, to be specified in the decree. And out of this arose the custom of mortgagees-thus anticipating the exercise of such right by the mortgagor of themselves filing a bill foreclose the right to redeem, by obtain ing a decree requiring the mortgagor to pay the debt within a time to be specified in the decree, or to be forever barred, and the mortgagee's estate thereupon to become absolute. Such was the origin of strict foreclosure in the English courts. 2 Jones on Mort. (2d Ed), § 1538.

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1. The ordinary limitation of time within which a mortgage was redeemable after the mortgagee had entered upon the premises was twenty years. Corbett v. Barker, I Anst. 138; Cholmondeley v.

Clinton, 2 Jac. & Walk. 191. This time has been greatly shortened in the American States where this mode of procedure is still recognized. 2 Jones on Mort. (2d Ed.), § 1144, 1145, and note 2.

2. The purchaser gets the title as against all the parties to the foreclosure suit, and only against these; and, therefore, if persons having an interest in the equity of redemption-subsequent encumbrances or others-have not been brought in as parties to the suit, he buys subject to their rights and interests. Wiltsie on Mortgage Foreclosure, § 61; 2 Jones on Mort. (2d Ed.), $$ 1396,1431.

3. Briggs V. Richmond, 10 Pick. (Mass.) 392; Johnson v. Candage, 31 Me. 28; Spencer v. Harford, 4 Wend. (N. Y.) 381; Globe Ins. Co. v. Lansing, 5 Cow. (N. Y.) 381; Hatch v. White, 3 Gall. (U. S.) 152; Tooke v. Hartley, 2 Dick. 785; 2 Jones on Mort. (2d Ed.) §

950.

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is permitted, in exceptional cases, in Alabama, California,2 Illinois, Minnesota, New York, and Wisconsin 6 In Connecticut and Vermont 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. If the debt is paid, the property is to be restored to the mortgagor and proper conveyance made;10 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 În 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

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13. Paris v. Hulett. 26 Vt. 308; Edgerton v. Young. 43 Ill. 470; Vansant v. Allman, 23 Ill. 30; Spencer v. Harford, 4 Wend. (N. Y.) 381; Morgan v. Plumb, 9 Wend. (N. Y.) 287; Bassett v. Mason, 18 Conn. 136; New Haven Pipe Co. v. Work, 44 Conn. 230; Smith v. Packard, 19 N. H. 575; Newell v. Wright, 3 Mass. 150; Amory v. Fairbanks, 3 Mass. 562.

14. 2 Jones on Mort. (2d Ed.). §§ 1238– 1246. In Jones v. Bowler & Stone, 74 Me. 310, it was held that it would not suffice that a consent in writing to enter had been given the mortgagee; there must be an actual entry upon the premises after such written consent; and that the mortgagee sending a lease, signed by himself, to the mortgagor, who took the lease, but did not sign it, and continued in possession, is not such actual entry; it cannot be regarded as the entry of the mortgagee, or that the mortgagor is holding possession for the mortgagee; that a purchaser from the mortgagee, becoming such after the lapse of a year from the giving of the written consent, stood in the position of the mortgagee, as he had notice from the records that his vendor had acquired title through a mortgage, and consequently such purchaser took only such title as his vendor could convey. The mortgagor had made a seasonable demand, both on the mortgagee and his vendee, to render a true account of the amount due upon the mortgage, which they refused to do. It was held that there had been no foreclosure, and that the mortgagor was entitled to redeem.

In case where the mortgagee, before the expiration of three years from the date of his entry upon the land for the 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 judgment is entered, providing that the mortgage debt be paid within a specified time; otherwise, that the mortgagee be put in possession.2

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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.1

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 other security held by him for the same debt, but not sufficient to liquidate it, this does not, of itself, sufficiently evince an intent on his part to waive his right of foreclosure. Tompson v. Tappan, 139 Mass. 506.

A certificate of entry, under Gen. Stats., ch. 140, 1, 2, sworn to by the mortgagee before himself as a justice of the peace, is invalid, and of no avail for the purpose of foreclosure. Judd v. Tryon, 131 Mass. 345.

Where an assignee of a mortgage, in possession for breach of condition before foreclosure. had cut and carried away trees growing on the land, the heirs at law of the mortgagor cannot maintain trover against him for the same. Place et al. v. Sawtell, 142 Mass. 477.

A real estate mortgage gives only a lien on the land and its rents and profits, to be enforced, as in other cases, in the district court, even although the mortgage contain a stipulation which seems to give the mortgagee the right, after condition broken, to take possession of the mortgaged premises and to receive the rents and profits; it is not operative to transfer the title to the mortgagee of the rents and profits. Seckler v. Delfs, 25 Kan. 159.

Spencer, 14 Mass. 409; Amidown v.
Peck, 11 Metc. (Mass.) 467.

3. 2 Jones on Mortg. SS 1247, 1280 (2d Ed.).

4. 2 Jones on Mortg. (2d Ed.), ch. 29.

Statutory Foreclosure.-For requirements under the Arkansas statute, see Perkens & Sumner v. Keller & Angel, 43 Ark. 53. Under the Michigan statute, Herbert v. Butte, 42 Mich. 489 Failure to serve tenant in possession, with notice, does not prevent statutory foreclosure, under the laws of Minnesota, from being effectual as to the mortgagor, it appearing that the mortgagor, who was in possession of a part of the land, although not residing on it, was duly served. Holmes v. Crummet, 30 Minn. 23; Miller v. Miller, 48 Mich. 311; Crater v. Smith, 42 N. J. Eq. 348; Belmont v. Cornen, 48 Conn. 338.

5. See Kelly v. Bogardus, 51 Mich. 522; Wilkinson v. Flowers, 37 Miss. 579, 584: s. c., 57 Am. Dec. 78; James v. Fisk, 17 Miss. (1 Smed. & M.) 144, 150; s. c., 47 Am. Dec. III.

Necessity for Demand.-See Burnham v. Allen, 67 Mass. (1 Gray) 496; Locklin v. Moore, 57 N. Y. 362; Hills v. Place, 48 N. Y. 520; s. c., 8 Am. Rep. 558; 36 How. (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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