S. 25. MORTGAGES. Action respecting Mortgage. 25.-(1.) Any person entitled to redeem mortgaged Action respecting Mortgage. property may have a judgment or order for sale instead Sale of mort- of for redemption in an action brought by him either gaged property for redemption alone, or for sale alone, or for sale or redemption, in the alternative. in action for foreclosure, &c. (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. For an order under this subs., see Weston v. Davidson, W. N. 1882, p. 28. (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. (6.) The enactment described in Part II. of the Second 15 & 16 Vict. Schedule to this Act is hereby repealed. c. 86, s. 48. (7.) This section does not extend to Ireland. As to this section, see observations on s. 5, ante. The result of decisions (see Morgan's Chancery Acts, 196, 197, 5th ed.) was to give a very limited operation to the 48th section of 15 & 16 Vict. c. 86, now repealed (see second schedule, Part II.), and replaced by this section. An order for sale may be made under this section notwithstanding a judgment nisi for foreclosure has been given (Union Bank of London v. Ingram, W. N. 1882, p. 10), but not, of course, after foreclosure absolute. SS. 25, 26 (1), (2). MORTGAGES. Action respecting Mortgage. Former law as to judgment for sale. Sale notwith for foreclosure. Form of order An order for sale need no longer direct the sale to be made, as has standing nisi been the practice before this Act (see Seton on Decrees, pp. 1396, 802, 4th ed.), subject to the incumbrances of such of the incumbrancers under Act. as do not consent (see the suggested minutes of judgment, post.) The sum to meet their charges will be paid into Court under s. 5, and any whose charges cannot be so provided for must be made parties. The owner of, or any incumbrancer on, an incumbered estate can under this section bring an action for sale and application of the proceeds (see note to s. 5, ante), but before commencing an action for redemption or sale he should be certain that he can provide the requisite deposit or security for costs, otherwise he may find himself foreclosed. If If the mortgagee asks for a sale under this section, the course of proceeding will be much the same as before the Act in a similar case. the mortgagor asks for a sale instead of being foreclosed as defendant, or bound to redeem as plaintiff, the course of proceeding is new, and must be settled. It is presumed that a sum to pay expenses of sale will be required to be deposited or secured by the mortgagor, and probably also where the mortgagor is plaintiff, a sum to pay the mortgagee's costs of the action. Either the conduct of the sale should be given to the mortgagee or the reserve price should not, unless he consents, be fixed at a sum less than sufficient to pay his principal, interest, and costs. If this price is not reached, he should at once be entitled to foreclosure. He is clearly entitled to the estate, instead of his debt, if the estate will not produce more. Another course would be to give the conduct of the sale to the mortgagor, where he is plaintiff, with leave for the mortgagee to bid. The mortgagee can thus acquire the estate in place of all or part of his debt: see the suggested minutes of judgment, post. V. STATUTORY MORTGAGE. Course where sale asked by mortgagee. Where by mortgagor. STATUTORY statutory mortgage in 26.-(1.) A mortgage of freehold or leasehold land may be made by a deed expressed to be made by way of Form of statutory mortgage, being in the form given in Part I. of the Third Schedule to this Act, with such variations schedule. and additions, if any, as circumstances may require, and the provisions of this section shall apply thereto. (2.) There shall be deemed to be included, and there S. 26 (2); S. 27 (1), (2). STATUTORY MORTGAGE. Forms of statutory transfer of mortgage in schedule. shall by virtue of this Act be implied, in the mortgage deed First, a covenant with the mortgagee by the person expressed therein to convey as mortgagor to the effect following (namely): That the mortgagor will, on the stated day, pay to the mortgagee the stated mortgage money, with interest thereon in the meantime, at the stated rate, and will thereafter, if and as long as the mortgage money or any part thereof remains unpaid, pay to the mortgagee interest thereon, or on the unpaid part thereof, at the stated rate, by equal half-yearly payments, the first thereof to be made at the end of six calendar months from the day stated for payment of the mortgage money. Secondly, a proviso to the effect following (namely): That if the mortgagor, on the stated day, pays to the mortgagee the stated mortgage money, with interest thereon in the meantime, at the stated rate, the mortgagee at any time thereafter, at the request and cost of the mortgagor, shall re-convey the mortgaged property to the mortgagor, or as he shall direct. 27.—(1.). A transfer of a statutory mortgage may be made by a deed expressed to be made by way of statutory transfer of mortgage, being in such one of the three forms (A.) and (B.) and (C.) given in Part II. of the Third Schedule to this Act as may be appropriate to the case, with such variations and additions, if any, as circumstances may require, and the provisions of this section shall apply thereto. (2.) In whichever of those three forms the deed of transfer is made, it shall have effect as follows (namely): (i.) There shall become vested in the person to whom the benefit of the mortgage is expressed to be transferred, who, with his executors, administrators and assigns, is hereafter in this section designated the transferee, the right to demand, sue for, recover, and give receipts for the mortgage money, or the unpaid part thereof, and the interest then due, if any, and thenceforth to become due thereon, and the benefit of all securities for the same, S. 27 (2), (3), and the benefit of and the right to sue on all covenants with the mortgagee, and the right to exercise all powers of the mortgagee: (ii.) All the estate and interest, subject to redemption, of the mortgagee in the mortgaged land shall vest in the transferee, subject to redemption. (3.) If the deed of transfer is made in the form (B.), there shall also be deemed to be included, and there shall by virtue of this Act be implied therein, a covenant with the transferee by the person expressed to join therein as covenantor to the effect following (namely): That the covenantor will, on the next of the days by the mortgage deed fixed for payment of interest, pay to the transferee the stated mortgage money, or so much thereof as then remains unpaid, with interest thereon, or on the unpaid part thereof, in the meantime, at the rate stated in the mortgage deed; and will thereafter, as long as the mortgage money, or any part thereof, remains unpaid, pay to the transferee interest on that sum, or the unpaid part thereof, at the same rate, on the successive days by the mortgage deed fixed for payment of interest. (4.) If the deed of transfer is made in the form (C.), it shall, by virtue of this Act, operate not only as a statutory transfer of mortgage, but also as a statutory mortgage, and the provisions of this section shall have effect in relation thereto, accordingly; but it shall not be liable to any increased stamp duty by reason only of its being designated a mortgage. A transfer of a mortgage, although further security is given, is only chargeable with duty as a transfer (33 & 34 Vict. c. 97, s. 109; Wale v. Commissioners of Inland Rev., 4 Ex. D. 270). (4); S. 28. STATUTORY 28. In a deed of statutory mortgage, or of statutory Implied transfer of mortgage, where more persons than one are covenants, joint and expressed to convey as mortgagors, or to join as cove- several. nantors, the implied covenant on their part shall be deemed to be a joint and several covenant by them; and where there are more mortgagees or more trans (1). STATUTORY SS. 28, 29, 30 ferees than one, the implied covenant with them shall be deemed to be a covenant with them jointly, unless the amount secured is expressed to be secured to them in shares or distinct sums, in which latter case the implied covenant with them shall be deemed to be a covenant with each severally in respect to the share or distinct sum secured to him. Form of reconveyance of statutory mortgage in schedule. TRUST AND MORTGAGE ESTATES ON DEATH. Devolution of trust and mortgage estates on death. 29. A re-conveyance of a statutory mortgage may be made by a deed expressed to be made by way of statutory re-conveyance of mortgage, being in the form given in Part III. of the Third Schedule to this Act, with such variations and additions, if any, as circumstances may require. The object of ss. 26-29 is to enable mortgages, transfers of mortgage, and reconveyances to be made in very short forms. The forms are given in the third schedule, and will probably be only used in quite simple cases, and for loans on small properties. VI. TRUST AND MORTGAGE ESTATES ON DEATH. 30.-(1.) Where an estate or interest of inheritance, or limited to the heir as special occupant, in any tenements or hereditaments, corporeal or incorporeal, is vested on any trust, or by way of mortgage, in any person solely, the same shall, on his death, notwithstanding any testamentary disposition, devolve to and become vested in his personal representatives or representative from time to time, in like manner as if the same were a chattel real vesting in them or him; and accordingly all the like powers, for one only of several joint personal representatives, as well as for a single personal representative, and for all the personal representatives together, to dispose of and otherwise deal with the same, shall belong to the deceased's personal representatives or representative from time to time, with all the like incidents, but subject to all the like rights, equities, and obligations, as if the same were a chattel real vesting in them or him; and, for the purposes of this section, the personal representatives, for the time being, of the deceased, |