Chap. In an action by a second mortgagee to redeem a first mortXXXVIII. gagee and foreclosure the mortgagor, the proper form of judgment is, that in default of the plaintiff redeeming, the action is to stand dismissed with costs (p). § 5 (ii). Dismissal of action by puisne mort gagee; Where one person has mortgaged his estate as a surety for another, the judgment is so framed as to give the surety the full -by surety. benefit of his rights against the estate of the principal debtor, and the right of redemption being given to both, it is ordered that if the money be paid by the principal debtor, the estates shall be conveyed to their respective owners; but if the money be paid by the surety, both estates are conveyed to him, and he, of course, holds that which belonged to his principal, subject to redemption by him; if neither principal nor surety redeem both, their estates are foreclosed (q). Dismissal of infant's action. Decree for redemption on terms. If the plaintiff be an infant, and bring his action to redeem, and a day is given for that purpose, and default made in payment, and the action consequently dismissed, it does not seem clear whether the infant will be bound, or will have six months after he comes of age to show cause (†). The right of redemption being a creature of equity must be subject to the rules of equity. The Court, therefore, will make terms with the mortgagor, if necessary, before it permits him to redeem; and the decree for redemption will be either absolute or conditional, as suits the circumstances of the case. Of this, an instance occurs (s) in which a mortgagee having purchased the estate for a valuable consideration, a third party made adverse claim to the right of redemption, but was desirous of having the validity of the mortgage tried at law before he should redeem: the Court held that he ought to declare whether he would redeem or not before he disputed the title, and that if he would redeem he ought to pay the defendant all his principal money, damages, and costs, which he refusing, the Court dismissed the bill: and in another case (t), in which an infant heir of a mortgagor, by his guardian, having fruitlessly endeavoured by proceedings at law to overthrow the mortgagee's title, brought his bill to redeem, (p) Hallett v. Furze, 31 Ch. D. 312. (9) Beckett v. Micklethwaite, 6 Madd. 199; Aldworth v. Robinson, 2 Beav. 287. (r) See Gregory v. Molesworth, 3 Atk. 625; Napier v. Effingham, 2 P. Wms. 401. As to the right of an infant de fendant to a foreclosure action to a day to show cause, see post, Chap. XLIX., Sect. VI. (i). (s) Smith v. Valence, 1 Rep. in Ch. 90. And see Goodtitle v. Bailey, Cowp. 601. (t) Ramsden v. Langley, 2 Vern. 536. Chap. the Court would not allow redemption, unless the mortgagor would pay a sum of money which the mortgagee, on his oath, XXXVIII. declared he had paid above his taxed costs in defending the § 5 (ii). title at law, and the Court also allowed him his costs of taking out administration to the mortgagor as principal creditor. several in Where there are several incumbrancers, and the mortgagor's Dismissal of action for redemption is dismissed, the last incumbrancer becomes action where quasi mortgagor, and the others become first and subsequent cumbrancers. incumbrancers according to their priorities (u). sale. iii.-Order for Sale in lieu of Redemption.-The conduct of a Conduct of sale is always in the discretion of the Court, but, in a redemption action where a sale is prayed, it seems that the conduct will be given to the plaintiff, on the ground that he is more interested in obtaining the best price for the property (c). The sale may be ordered to be made out of Court (y); a reserve price may be fixed to cover the amount due on incumbrances; and the plaintiff may be ordered to give security for the costs of the sale (z). By sect. 30 of the Trustee Act, 1893 (a), it is enacted as Trustee Act, follows: for sale on mortgage of land. 1893, s. 30. "Where any Court gives a judgment or makes an order directing Vesting order the sale or mortgage of any land, every person who is entitled to or consequential possessed of the land or entitled to a contingent right therein [as on judgment heir, or under the will of a deceased person for payment of whose debts the judgment was given or order made], and is a party to the action or proceeding in which the judgment or order is given or made, or is otherwise bound by the judgment or order, shall be deemed to be so entitled or possessed, as the case may be, as a trustee within the meaning of this Act; and the High Court may, if it thinks expedient, make an order vesting the land or any part thereof for such estate as that Court thinks fit in the purchaser or mortgagee or in any other person." This section virtually re-enacts (b) the repealed provisions contained in sect. 29 of the Trustee Act, 1850 (c), and sect. 1 of the Trustee Act, 1852 (d). (u) Cottingham v. Earl of Shrewsbury, 3 Ha. 637. (x) Brewer v. Square, (1892) 2 Ch. 111. (y) Davies v. Wright, 32 Ch. D. 220 (foreclosure action); Brewer v. Square, sup. (z) Woolley v. Colman, 21 Ch. D. 169; Brewer v. Square, sup. (a) 56 & 57 Vict. c. 53. The words in brackets are repealed by Trustee (6) The only material variations are: (c) 13 & 14 Vict. c. 60. Chap. XXXVIII. § 5 (iii). The power of the Court to make vesting orders is not confined to cases of persons under disability (e), it extends to the case of a person of unsound mind, but not found lunatic (ƒ). Where property is sold in lots, the purchasers may apply for a vesting order, and the costs of each purchaser will be paid out of the proceeds of his particular lot, not out of the fund in Court generally (g). Formerly, applications under the Trustee Acts had to be made by petition, but such applications may now be made by summons in Chambers (h). iv.-Costs. In a suit for redemption, the plaintiff pays his own costs, and the defendant adds his to his mortgage debt (i). The mortgagee is entitled to the costs of action, and to all costs properly incurred by him in reference to the mortgaged property, or the recovery of the mortgage debt, or otherwise relating to questions between him and the mortgagor (k). Where taxation of the costs of the mortgagee is sought after payment, the application must be against the mortgagee, and not against his solicitor (). In the decree for redemption, the costs of a prior foreclosure suit must be provided for (m). (e) Beckett v. Sutton, 19 Ch. D. 646. 167. (g) Ayles v. Cox, 17 Beav. 504. (i) The question as to what costs considered fully, post, Chap. LIV., Sect. IV. (k) National Provincial Bank v. Games, 31 Ch. D. 582. (1) Re Abbott, 4 L. T. 576. (m) Ainsworth v. Roe, 14 Jur. 874. CHAPTER XXXIX. OF THE STATUTES OF LIMITATION IN BAR OF REDEMPTION. i.—Application of the Statutes to Claims for Redemption.-The Statutory limit to entry statute 21 Jac. I. c. 16, s. 1, enacted that no entry into any lands, on lands tenements, or hereditaments should be made but within twenty under statute years after the right or title to the same should accrue or descend. This section was superseded by the statute 3 & 4 Will. IV. c. 27, and was ultimately repealed by the Statute Law Revision Act, 1863. adopted in The older statute did not affect claims which could only be Analogous brought in a Court of Equity (a). But even prior to the statute principles 3 & 4 Will. IV. c. 27, the time within which the equity of equity. redemption of land or rents would be allowed was a matter for consideration; and after considerable conflict of opinion, it was settled that the Courts of Equity would be regulated in this respect by analogy to the old Statute of Limitations, and that after twenty years' abandonment by the mortgagor (b), the right of redemption should be lost, unless the mortgagor could bring his case within one of the exceptions mentioned in that statute, namely, imprisonment, infancy, coverture (c), or being beyond the seas (not having absconded), or nonsane memory; in any one of which cases, the Courts, by further analogy to that statute, gave ten years after the disability was removed (d). But if the time once began to run, a subsequent legal disability, by analogy to the decisions at law, would not have been sufficient to stop it (e). (a) Bonney v. Ridgard, 1 Cox, 149. (b) Corbett v. Barker, 1 Anst. 138; 3 Anst. 755; Bonney v. Ridgard, sup.; Hovenden v. Lord Annesley, Sch. & L. 636; Marquis Cholmondeley v. Lord Clinton, 2 J. & W. 191; Harrison v. Hollins, 1 S. & St. 471. (e) Price v. Copner, 1 S. & St. 347. (d) White v. Ewer, 2 Vent. 340; Belch v. Harvey, 3 P. Wms. 287, n. (e) Floyd v. Mansel, Gilb. Eq. Rep. 185; St. John v. Turner, 2 Vern. 418; Knowles v. Spence, Mos. 225; 1 Eq. Ca. Abr. 315, pl. 5; Corbett v. Barker, 1 Anst. 138. Chap. By the statute 3 & 4 Will. IV. c. 27, s. 28, the law on this XXXIX.(i.) subject was made clear and precise, and the period within which suits for redemption of mortgaged lands or rents must be brought was fixed at twenty years next after the mortgagee took possession, or from the last written acknowledgment of the mortgagor's title or of his right to redemption. Stat. 3 & 4 Repeal. No statutory limit to suits for redemption of mortgaged personalty. Analogy of principle of statute of Jac. I. not applied. This section has been repealed by the Real Property Limitation Act, 1874 (ƒ); but its provisions have been substantially re-enacted, the general period of redemption being reduced to twelve years. As regards the redemption of mortgages of personalty other than leaseholds, the Statutes of Limitation have no direct application. The statutes 3 & 4 Will. IV. c. 27, s. 28, and 37 & 38 Vict. c. 57, s. 7, apply only to land and rents; and there is no similar provision in any Statute of Limitation with reference to personal property (g). The statute 21 Jac. I. c. 16, s. 3, does indeed bar claims after six years to (among other actions) an action for account, and it might be said that a suit for redemption necessarily involves a claim for an account from the mortgagee in possession. But in this statute, the term "action" must be strictly construed as meaning an action at law (h); and the Judicature Acts did not alter or touch the Statutes of Limitation at all, and these statutes still apply to the circumstances which constituted the actions named in it (i). It is obvious that the circumstances of a mortgage transaction would not have supported an action for account at common law under the former practice, and therefore the Act of Jac. I. does not apply, and consequently there is no statutory limitation of time within which a claim must be brought to redeem mortgaged personalty other than leaseholds. But the Court has, in several recent cases, recognized and applied, with respect to equitable claims to personalty, the principle that where there is a remedy in equity corresponding or analogous to a remedy at law, which is subject by statute to a limit in point of time, equity will act by analogy to the statute, and impose on the remedy it affords a similar limit (k). It (f) 37 & 38 Vict. c. 57, s. 9. (g) See London and Midland Bank v. Mitchell, (1899) 2 Ch. 161. (h) See, per Jessel, M. R., in Re Greaves, Bray v. Tofield, 18 Ch. D. 551, at p. 554. (i) Per Brett, L. J., in Gibbs v. Guild, 9 Q. B. D. 59, C. A., at p. 67. See Re Sharpe, Masonic, &c. Ass. Co. v. Sharpe, (1892) 1 Ch. 154, C. A., at p. 167. (k) Knox v. Gye, L. R. 5 H. L. 674; |