Chap. infer that "shortly after" meant within five years, and the demurrer of the mortgagee was overruled (u). It must XXXVIII. clearly appear that the possession vested for the statutory § 4 (ii). period (x). Unless the statutory period has elapsed, the mere delay of the Laches. mortgagor in taking proceedings to determine that a conveyance, on the face of it absolute, is really a mortgage, is no bar to an action claiming a declaration to that effect, and redemption (y). tories. iii.-Discovery.-A mortgagee is compellable in an action for Interrogaredemption to furnish particulars of the amount claimed to be due on the mortgage (s). And if he admits his liability to be redeemed he is bound to state, in answer to interrogatories, not only the amount due, but also what securities he held for the debt (a). Where the mortgage was made since the 31st of December, 1881, the mortgagor is entitled, so long as his right to redeem subsists, at his own cost, to inspect and take copies or abstracts of, or extracts from, the documents of title in the mortgagee's custody or power relating to the mortgaged property (b). In cases not falling within the above enactment, the mort- Production of title deeds, gagee was not in general bound to produce the title deeds unless &c. he was redeemed (c). Under special circumstances, however, the mortgagee has been ordered to produce the mortgage deed at the hearing for the purpose of proof, but not for any other purpose (d). A mortgagee, who is ordered to produce a deed, must produce everything which depends upon it (e). Therefore, in a suit to set aside a conveyance of an equity of redemption, it was held that the defendant must with the deed produce a receipt for the mortgage money which he had obtained after the date of the conveyance. If a mortgagee plead the Statute of Limitations (ƒ), he is in (u) Baker v. Wetton, 14 Sim. 426. (x) Green v. Nicholls, 4 L. J. Ch. 118. Douglas v. Culverwell, 4 De G. F. & J. 20. See Rochefoucauld v. Boustead, (1897) 1 Ch. 196. (2) Bridgewater v. De Winton, 33 L. J. Ch. 238. (a) West of England, &c. Bank v. VOL. I.-C. Nicholls, 6 Ch. D. 613; Elmer v. Creasy, (b) 44 & 45 Vict. c. 41, s. 16. (d) Beaumont v. Foster, 5 L. J. Ch. 4. 3 c Chap. the same position as to the liability to produce his deeds as any XXXVIII. other defendant who cannot shelter himself under a mortgage § 4 (iii). title. If a mortgagee take a conveyance of the equity of redemption from a trustee with notice of the trust, he must produce the conveyance in a suit by the cestuis que trust for redemption, though one of the trusts was for sale (g). And a cestui que trust is entitled to inspect mortgages in which trust funds are invested, though the mortgagors object (h). Ordinary form of decree. Declaration of right to redeem. SECTION V. DECREE FOR REDEMPTION. i.-Form of Decree.-The ordinary form of judgment in a redemption action in its simplest form directs an account to be taken of what is due to the defendant under and by virtue of his mortgage, and for the costs of the action (such costs to be taxed, &c.), and that, upon the plaintiff paying the defendant what shall be certified to be due to him within six months, the defendant shall reconvey the mortgaged property free from incumbrances and deliver up all deeds, but that, in default of payment within the time fixed, the action shall be dismissed, with liberty to apply (i). If the right to redeem is disputed, the judgment will be prefaced by a declaration, affirming the right to redeem. And the judgment may also declare, where necessary, the rights and priorities as well of the several incumbrances as of any person who has paramount claims on the estate (k); and may further direct that the necessary accounts be taken in a particular manner, as, where necessary, that rests be made (1), and that the amount due from the mortgagee on account of his receipts be applied first in payment of interest and then of the principal of the mortgage security (m). (g) Smith v. Barnes, L. R. 1 Eq. 65. (h) Gough v. Offley, 5 De G. & S. 653. (i) Seton, 1926. For form of decree for redemption of a mortgage of a pension, see James v. Ellis, 19 W. R. 319. (k) Jones v. Griffith, 2 Coll. 207. See as to rests, post, Chap. LIV., Sect. V. (iv). (m) See Thorneycroft v. Crockett, 2 H. L. C. 246. Chap. Where in a redemption action the mortgagee fails to appear, and the mortgagor takes out a summons under r. 1 of Ord. XV., XXXVIII. for proper accounts, the order must be restricted to accounts of the sum due by the mortgagor, and of the rents due by the mortgagee; the rest of the decree must be adjourned (n). It may also be directed, in a proper case, that the amount due to each mortgagee in respect of his own debt be added to whatever he may have paid for the redemption of preceding incumbrancers, together with all sums to which the Court may consider him to be entitled for improvements, or payments made in respect, or for the protection, of his security or of the estate. § 5 (i). tion. The time allowed by the judgment for redemption is, as a Time allowed general rule, six months, as in an action for foreclosure (o); but for redempas in a redemption action the mortgagor takes the initiative, he may, under special circumstances, be put upon terms, as by being ordered to pay the estimated amount due for principal, interest, and costs into Court by a shorter date. As a general rule, the time for payment will not be enlarged in a redemption action as in an action for foreclosure, unless special grounds for such indulgence are shown. The difference in principle between the two classes of cases is that the plaintiff in a redemption action comes into Court professing that his money is ready and asking for his estate in return, but a foreclosing mortgagee calls upon the Court to act against a person unwilling to pay (p). But where, by a bonâ fide mistake, a plaintiff in a redemption action failed to pay the money into Court by the time fixed, the Court extended the time so as to include the actual date of lodgment (2). default. If, accordingly, the mortgagor do not pay the sum due at the Effect of time appointed in the redemption suit, he will not be allowed to redeem, although he tender the money before the motion to dismiss the action (), unless, as it seems, good cause is shown. for the delay (s). But where in a redemption action an order was made giving leave to the plaintiff to lodge the mortgage moneys in Court, and directing that in default of such lodgment within two (n) Clover v. Wilts, &c. Soc., 53 L. J. Ch. 622. (0) Post, Chap. XLIX., Sect. IV. (iii). (p) Moosielski v. Wakefield, 17 Ves. 417; Faulkner v. Bolton, 7 Sim. 319. (a) Collinson v. Jeffery, (1896) 1 Ch. 644. (r) Faulkner v. Bolton, 7 Sim. 319. Chap. XXXVIII. § 5 (i). Successive redemptions. Tenant for life and remainderman. Contribution by tenant for life on re remainder months from the date of the order, the action be dismissed; owing to a bona fide mistake of the plaintiff's solicitor this period was allowed to lapse, but the money was lodged within two months from the date on which the order was passed and entered the Court extended the period allowed by the order so as to include the latter date (t). Redemption, where there are several parties entitled, will be decreed according to the priorities of the claimants; that is, if there are several mortgagees, the Court will decree in detail that the second shall redeem the first, the third the second, and so on (u). If the equity of redemption be limited to uses, the remainderman may bring his action to redeem (x); but he must give the first tenant for life and intermediate remaindermen an option of redeeming according to their priorities (y). The tenant for life has the first option to redeem; and if he procures an assignment of the mortgage, or if the mortgagee purchases the interest of the tenant for life, it seems that the remainderman cannot, without the consent of the tenant for life or his assignee, redeem the mortgage (*). The tenant for life can interest during his life (a); only be compelled to keep down the but if the tenant for life refuse to demption by redeem, the remainderman may, by redeeming the mortgage and ejecting the tenant for life, and taking possession of the profits, or by bringing an action of foreclosure, compel the tenant for life to come in and contribute, or give up the possession of the estate (b). man. It was formerly the rule that the tenant for life should pay one-third, and the remainderman two-thirds (c); and in one case it was decreed that the tenant for life should contribute two-fifths, and the remainderman three-fifths (d). The usual (t) Collinson v. Jeffery, (1896) 1 Ch. 644. (u) Archdeacon v. Bowes, M'CI. 149. (x) See Corbett v. Barker, 1 Anst. (z) Raffety v. King, sup.; Ravald v. Russel, Yo. 9, 21; Prout v. Cock, (1896) 2 Ch. 808. (a) Ante, p. 660. (b) Hayes v. Hayes, 1 Ch. Ca. 224; Cornish v. Mew, 1 Ch. Ca. 271; Clyat v. Batteson, 1 Vern. 404; Ballett v. Sprainger, Prec. Ch. 62; Rowel ̧v. Walley, 1 Rep. in Ch. 116. And see 3 Anst. 757. (c) Rowel v. Walley, 1 Rep. in Ch. 116. (d) James v. Hales, 2 Vern. 268. course is a reference to Chambers to ascertain the amount of contribution. In an action for redemption of an annuity, the principle of the common order is applied (e). Chap, XXXVIII. § 5 (i). Redemption of annuity. Motion to dismiss action for redemp ii.-Dismissal of Action for Redemption.-The suit for redemption will be dismissed on motion of course, upon production of the certificate of the amount due, and of an affidavit of attend- tion. ance and non-payment of the money (f), even though after the time fixed for payment the mortgagor have tendered the principal and interest, with an additional sum for interest to the day of tender (g), unless under special circumstances (h). But it seems proper in such a case to move upon notice. action. If the money be not duly paid and the redemption action be Effect of disaccordingly dismissed, the mortgagee thereupon becomes entitled missal of to hold the estate free from the mortgage debt in respect of which default has been made. A final decree dismissing an action for the redemption of a legal mortgage is equivalent to a decree for foreclosure (i). But this rule does not apply to the dismissal of an action for the redemption of an equitable mortgage by deposit of title deeds (k); and the dismissal of a redemption action for want of prosecution has not the effect of a decree for foreclosure, but leaves the mortgagor at liberty to commence a fresh action for redemption (7). The dismissal of an order for redemption will bind not only Who bound the mortgagor and his heirs, but also a purchaser of the equity by dismissal. of redemption after commencement of the action (m), provided the action is duly registered as a lis pendens (n). Where, pending a suit by a mortgagor for redemption, the plaintiff became insolvent, and his assignees were not made parties to the suit, it was held that the assignees were not bound by the foreclosure occasioned by the dismissal of the mortgagor's bill to redeem, in consequence of his failing to pay the amount found due at the time appointed (0). (e) Moorev. Rowe, and Byne v. Vivian, cited Seton, 2117. (f) Stuart v. Worrall, 1 Bro. C. C. 581; Proctor v. Oates, 2 Atk. 140; Newsham v. Gray, 2 Atk. 287. (g) Faulkner v. Bolton, 7 Sim. 319; the report in 4 L. J. Ch. 81 is in correct. (h) Collinson v. Jeffery, (1896) 1 Ch. 644. (i) Cholmley v. Oxford, 2 Atk. 267; Bishop of Winchester v. Paine, 11 Ves. 194, 199; Inman V. Wearing, 3 De G. & S. 734; Ord. XVIII. r 2. (k) Marshall v. Shrewsbury, L. R. 10 (1) Hansard v. Hardy, 18 Ves. 460. |