dismiss the action (7), unless, as it seems, good cause is shown CHAP. XXXVIII. for the delay (r). 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 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 (s). Redemption, where there are several parties entitled, will be Successive decreed according to the priorities of the claimants; that is, if redemptions. there are several mortgagees, the Court will decree in detail that the second shall redeem the first, the third the second, and so on (t). mainderman. If the equity of redemption be limited to uses, the remainder- Tenant for man may bring his action to redeem (u); but he must give the life and refirst tenant for life and intermediate remaindermen an option of redeeming according to their priorities (a). 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 (y). life on redemption by by tenant for remainder The tenant for life can only be compelled to keep down the Contribution interest during his life (z); but if the tenant for life refuse to redeem, the remainderman may, by redeeming the mortgage, and ejecting the tenant for life, and taking possession of the man. 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 (a). It was formerly the rule, that the tenant for life should pay CHAP. XXXVIII. one-third, and the remainderman two-thirds (b); and in one case it was decreed that the tenant for life should contribute two-fifths, and the remainderman three-fifths (c). The usual course now is a reference to chambers to state the amount of contribution (d). Redemption of annuity. Motion to dismiss action for redemp tion. Effect of dismissal of action. Who bound by dismissal. In an action for redemption of an annuity, the principle of the common order is applied (e). 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 attendance 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 (). But it seems proper in such a case to move upon notice. If the money be not duly paid and the redemption action be accordingly dismissed, the mortgagee thereupon becomes entitled 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 (j); 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 (). The dismissal of an order for redemption will bind not only the mortgagor and his heirs, but also a purchaser of the equity of redemption after commencement of the action (1), provided the action is duly registered as a lis pendens (m). 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 (b) Rowel v. Walley, 1 Rep. in Ch. 116. (f) Stuart v. Worrall, 1 Bro. C. C. (g) Faulkner v. Bolton, 7 Sim. 319; the report in 4 L. J. (N. S.) Ch. 81, is incorrect. (h) Collinson v. Jeffery, (1896) 1 Ch. 644. (i) Cholmley v. Countess of Oxford, 2 Atk. 267; Bishop of Winchester v. Paine, 11 Ves. 194, 199; Inman v. Wearing, 3 De G. & S. 734. (j) Marshall v. Shrewsbury, L. R. 10 Ch. A. 250. (k) Hansard v. Hardy, 18 Ves. 460. by the foreclosure occasioned by the dismissal of the mortgagor's CHAP. XXXVIII. bill to redeem, in consequence of his failing to pay the amount found due at the time appointed (»). In an action by a second mortgagee to redeem a first mort- Dismissal of action by gagee and foreclosure the mortgagor, the proper form of judg- puisne mortment is, that in default of the plaintiff redeeming, the action is gagee; to stand dismissed with costs (o). Where one person has mortgaged his estate as a surety for by surety. another, the judgment is so framed as to give the surety the full 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 (p). infant's If the plaintiff be an infant, and bring his action to redeem, Dismissal of and a day is given for that purpose, and default made in pay- action. ment, 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 (9). 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 (r) 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 (s), in which an infant heir of a mortgagor, by his (n) Wood v. Surr, 19 Beav. 551. (0) Hallett v. Furze, 31 Ch. D. 312. (p) Beckett v. Micklethwaite, 6 Madd. 199; Set. Dec. 3rd ed. p. 417; Aldworth v. Robinson, 2 Beav. 287. (q) See Gregory v. Molesworth, 3 Atk. 625; Napier v. Effingham, 2 P. Wms. VOL. I.-R. 401. As to the right of an infant de- (r) Smith v. Valence, Rep. in Ch. 601. (8) Ramsden v. Langley, 2 Vern. 536. Decree for redemption on terms. CHAP. XXXVIII. guardian, having fruitlessly endeavoured by proceedings at law to overthrow the mortgagee's title, brought his bill to redeem, the Court would not allow redemption, unless the mortgagor would pay a sum of money which the mortgagee, on his oath, declared he had paid above his taxed costs, in defending the title at law, and the Court also allowed him his costs of taking out administration to the mortgagor as principal creditor. Dismissal of action where several in Where there are several incumbrancers, and the mortgagor's action for redemption is dismissed, the last incumbrancer becomes cumbrancers. quasi mortgagor, and the others become first and subsequent incumbrancers according to their priorities (t). Conduct of sale. Trustee Act, 1893, s. 39. Vesting order on judgment for sale on mortgage of land. iii.-Order for Sale in lieu of Redemption.-The conduct of a 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 (u). The sale may be ordered to be made out of Court (x); 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 (y). By sect. 30 of the Trustee Act, 1893 (≈), it is enacted as follows: "Where any Court gives a judgment or makes an order directing consequential the sale or mortgage of any land, every person who is entitled to or possessed of the land or entitled to a contingent right therein [as 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 (a) the repealed provisions contained in sect. 29 of the Trustee Act, 1850 (b), and sect. 1 of the Trustee Act, 1852 (c). (t) Cottingham v. Earl of Shrewsbury, 3 Ha. 637. (u) Brewer v. Square, (1892) 2 Ch. 111. (x) Davies v. Wright, 32 Ch. D. 220 (foreclosure action); Brewer v. Square, sup. (y) Woolley v. Colman, 21 Ch. D. 169. (z) 56 & 57 Vict. c. 53. The words in brackets are repealed by the statute 57 Vict. c. 10, s. 1. (a) The only material variations are: (1) that the power to make vesting orders is given to the High Court generally, and not only to courts of equity; and (2) that the power is extended to cases where the Court orders a mortgage. (b) 13 & 14 Vict. c. 60. The power of the Court to make vesting orders is not confined CHAP. XXXVIII. to cases of persons under disability (d); it extends to the case of a person of unsound mind, but not found lunatic (e). 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 (ƒ). Formerly, applications under the Trustee Acts had to be made by petition, but such applications may now be made by summons in Chambers (g). iv.-Costs. In a suit for redemption, the plaintiff pays his own costs, and the defendant adds his to his mortgage debt (h). Where taxation of the costs of the mortgagee is sought after payment, the application must be against the mortgagee, and not against his solicitor (i). In the decree for redemption, the costs of a prior foreclosure suit must be provided for (k). The scale of taxation in a mortgage suit is regulated by the amount due at the commencement of the litigation, and not the amount of the original debt (1), and in administration suits, by the gross value of the estate to be administered (m); but the value of the equity of redemption only is estimated, not that of the entire mortgaged estate (n); and if the real value turns out to be less than the higher scale, in consequence of a sale by the mortgagee, the scale will be reduced accordingly (»). (d) Beckett v. Sutton, 19 Ch. D. 646. (e) Herring v. Clark, L. R. 4 Ch. A. 167. (f) Ayles v. Cox, 17 Beav. 504. (g) R. S. C., Ord. LV. r. 2 (8). (h) The question as to what costs are allowed to a mortgagee will be considered fully, post, Chap. LIV. Sect. iv. pp. 1174 et seq. (i) Re Abbott, 4 L. T. N. S. 576. (m) Re Reece's Estate, Gould v. Dum- (n) Re Sanderson, 7 Ch. D. 177. |