CHAP. XXXVIII.

SECTION III.

JURISDICTION IN ACTIONS FOR REDEMPTION.

of actions for

i.-General Jurisdiction.-By the Judicature Act, 1873 (u), Assignment actions for redemption are assigned to the Chancery Division of redemption to the High Court of Justice.

Chancery
Division.

By the County Courts Act, 1888 (x), the County Courts have Jurisdiction jurisdiction in all actions for redemption, where the mortgage of County or charge does not exceed 5007. in amount.

Courts in redemption actions. Action to set

An action by a mortgagor to set aside a sale and conveyance by the mortgagee of the mortgaged property is an action for aside sale by redemption within the meaning of this Act (y).

mortgagee.

In what action may County Court

An action for redemption brought in a County Court must be commenced, where both the mortgagee and mortgagor dwell or carry on business in one or more of the metropolitan districts, be brought. either in the district in which the mortgagee dwells or carries on business, or in that in which the mortgagor dwells or carries on business (). Elsewhere, in England and Wales, the action must be commenced in the Court within the district in which the lands, tenements, or hereditaments, or any part thereof, are situate.

The jurisdiction of the County Court is not affected by the Jurisdiction fact that the mortgagor has become bankrupt (a).

ii. Jurisdiction to order Sale in lieu of Redemption.-By sect. 25 of the Conveyancing and Law of Property Act, 1881 (b), it is enacted as follows:

not affected by bankruptcy of mortgagor.

"(1.) Any person entitled to redeem mortgaged property may Sale of have a judgment or order for sale instead of for redemption in mortgaged an action brought by him either for redemption alone, or for sale property in alone, or for sale or redemption, in the alternative.

"(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

action for foreclosure,

&c.

CHAP. XXXVIII. 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.

When order

"(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.

66

(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 the Act.

"(6.) The enactment described in Part II. of the Second Schedule to this Act (c) is hereby repealed.

"(7.) This section does not extend to Ireland."

The Chancery Amendment Act (d), which enabled the Court to direct a sale in lieu of foreclosure, did not extend to actions brought by the mortgagor for redemption.

It will be observed that this section applies to foreclosure actions as well as to actions for redemption. Its application to the former class of cases will be considered later (e).

An order for sale may, apparently, be made under this section may be made. in a redemption action at any time before the final decree for

redemption (ƒ).

The order may be made on an interlocutory application before the trial of the action (g).

(c) 15 & 16 Vict. c. 86, s. 42, which gave jurisdiction only to order sale in lieu of foreclosure.

(d) 15 & 16 Vict. c. 86, s. 48.

(e) See post, p. 1016.

(f) Union Bank of London v. Ingram, 20 Ch. D. 463 (foreclosure action). (g) Woolley v. Colman, 21 Ch. D. 169.

CHAP. XXXVIII.

SECTION IV.

PROCEDURE AND PRACTICE IN AN ACTION FOR REDEMPTION.

indorsement

i. How a Redemption Action must be commenced.-The Form of Rules of the Supreme Court give the form of indorsement on of writ. writs to be used, with such modification as may be necessary, in actions for redemption claiming to have an account taken of what, if anything, is due on the mortgage, and to redeem the property comprised therein (h).

The plaintiff in a redemption action may now claim by his writ an order either for redemption alone, or for sale alone, or for sale or redemption in the alternative (¿).

action to be

an action for

By Ord. XVII. r. 2 of the Rules of 1875, it was provided No cause of that no cause of action (with certain exceptions) should, unless joined with by leave of the Court, be joined with an action for recovery of recovery of land. The question whether actions for foreclosure or redemption were actions for recovery of land within the meaning of the rule gave rise to some conflict of judicial opinion ().

Now, however, by Ord. XVIII. r. 2 of the Rules of the Supreme Court, it is provided as follows::

land.

"No cause of action shall, unless by leave of the Court or a Recovery of judge, be joined with an action for the recovery of land, except land. claims in respect of mesne profits or arrears of rent or double value in respect of the premises claimed, or any part thereof, and damages for breach of any contract under which the same or any part thereof are held, or for any wrong or injury to the premises claimed.

"Provided that nothing in this order contained shall prevent Joinder of any plaintiff in an action for foreclosure or redemption from ask- claim for possession in

(h) R. S. C., App. A., s. 1 (5).

(i) 44 & 45 Vict. c. 41, s. 25, set out ante, pp. 725, 726.

(k) Cf. Tawell v. Slate Co., 3 Ch. D. 629, and Hoar v. Loe, W. N. (1884) 241.

action for foreclosure or redemption.

CHAP. XXXVIII. ing for or obtaining an order against the defendant for delivery of the possession of the mortgaged property to the plaintiff on or after the order absolute for foreclosure or redemption, as the case may be, and such an action for foreclosure or redemption and for such delivery of possession shall not be deemed an action for the recovery of land within the meaning of these rules.

Alternative claim to set aside mort

gage.

Originating summons for

redemption.

Service of

summons.

"Provided also, that in case any mortgage security shall be foreclosed by reason of the default to redeem by any plaintiff in a redemption action, the defendant in whose favour such foreclosure has taken place may by motion or summons apply to the Court or a judge for an order for delivery to him of possession of the mortgaged property, and such order may be made thereupon as the justice of the case shall require."

The plaintiff in a redemption action may, without obtaining the leave of the Court or a judge under this rule, ask in the alternative for a declaration that the mortgage is void, and for delivery of possession of the land on that footing (1).

By Ord. LV. r. 5A of the Rules of the Supreme Court, any mortgagor, whether legal or equitable, or any person having the right to redeem any mortgage, whether legal or equitable, may take out as of course an originating summons returnable in the chambers of a judge of the Chancery Division for redemption, reconveyance and delivery of possession by the mortgagee.

Proceedings for redemption should therefore now generally be commenced by originating summons. Where the defendant in a redemption action commenced by writ disputed the plaintiff's title to redeem, and the plaintiff obtained judgment, it was held that the plaintiff was entitled to such costs only as would have been allowed on an originating summons attended by counsel, including the costs of witnesses examined in Court (m).

The persons to be served with a summons for redemption are to be such as would be the proper defendants to an action for the like relief (n); but service on other persons may be directed by the Court or a judge (o). If any of the defendants is out of the jurisdiction, an originating summons cannot be served on him, and accordingly in such case the action must be commenced by writ (p).

(1) Hunt v. Worsfold, (1896) 2 Ch. 224.

(m) Johnson v. Evans (No. 1), 60 L. T. 29.

(n) R. S. C., Ord. LV. r. бв.

(0) Ibid., r. 6.

(p) Re Busfield, Whaley v. Busfield, 32 Ch. D. 123, C. A.; Re Bullen Smith, Berners v. Bullen Smith, 57 L. T. 924,

ii.-Pleadings in Action for Redemption.-An action for re- CHAP. XXXVIII. demption not containing an offer to redeem was formerly demur- Offer to rable (q), and will be dismissed at the hearing, unless the plaintiff redeem. offer to redeem on the same terms as a decree for redemption (r), though the action is brought by a devisee of the mortgaged estate to have the mortgage paid off out of other assets (s), unless the charge is a trust deed to secure incumbrances (†).

If there is no offer to pay, the Court cannot order payment of what is found to be due (u).

A mortgagor is not entitled to a decree for redemption in an Mortgagor action which impeaches the mortgage securities and contains no the security. impeaching prayer for redemption; but such rule does not apply where the issues are not merely mortgage or no mortgage, but whether the defendant, by means of his acts subsequent to the impeached mortgage, had ceased to be mortgagee, and had become absolute owner (x).

And it would seem that the plaintiff might in the same action claim to have the mortgage deed set aside, or, in the alternative, to have redemption, if the deed should be upheld (y).

A mortgagee, in defending an action for redemption, may deny the title of the plaintiff to redeem, for, except as against a person who can show a good title to the estate of the mortgagor, the estate of the mortgagee is absolute (z). But where a mortgagee sets up a title adverse to the mortgage, he cannot, when he fails, fall back on the mortgage and claim the advantages of a mortgagee (a).

Conveyance by the mortgagor to the mortgagee of the equity Release of of redemption is a defence to an action of redemption (b).

An agreement by a mortgagor to give up the equity of redemption, is not binding unless in writing, by virtue of the Statute of Frauds. But a parol agreement between several mortgagees, having deficient securities, with the executors of a deceased mort

(q) Dalton v. Hayter, 7 Beav. 313; Inman v. Wearing, 3 De G. & S. 729; Tasker v. Small, 3 My. & Cr. 63.

(r) Goymour v. Pigge, 8 Jur. 526; Gordon v. Dunstone, 5 Moo. P. C. 393; Harding v. Tingey, 10 Jur. N. S.

872.

(s) Hughes v. Cook, 34 Beav. 407. (t) Jefferys v. Dickson, L. R. 1 Ch. A. 183.

(u) Hollis v. Bulpett, 13 W. R. 492.

(x) National Bank of Australasia v. United Hand-in-Hand Co., 4 App. Cas. 391.

(y) See R. S. C., Ord. XX. r. 6. And see Bagot v. Easton, 7 Ch. D. 1, C. A., and cases there cited.

(z) See ante, p. 654. And see Lomax v. Bird, 1 Vern. 182.

(a) Incorporated Soc. v. Richards, 1 Dr. & War. 258, 334.

(b) Howells v. Wilson, 34 L. J. Ch,

equity of redemption.