shall, as far as may be, operate in the like manner and with all 44 & 45 Vict. the like incidents, effects, and consequences, as if such variations 0.41, s. 19.

or extensions were contained in this act.

(3.) This section applies only if and as far as a contrary intention is not expressed in the mortgage deed, and shall have effect subject to the terms of the mortgage deed and to the provisions therein contained.

(4.) This section applies only where the mortgage deed is executed after the commencement of this act.

(z) An equitable mortgagee selling under this section can only sell his interest under the mortgage (Re Hodson and Howe, 35 Ch. Div. 668). This section does not give power to sell fixtures apart from the freehold (Re Yates, Batcheldor v. Yates, 38 Ch. Div. 112). The power of sale given by this section is not incorporated in a bill of sale in the statutory form (Calvert v. Thomas, 19 Q. B. Div. 204); nor does it apply in the case of debentures of a joint-stock company (Blaker v. Herts Co., 41 Ch. D. 399). (a) When a foreclosure action is pending, it is desirable that the appointment of a receiver should be made, not by the mortgagee but by the court (Tillett v. Nixon, 25 Ch. D. 238).

20. A mortgagee shall not exercise the power of sale conferred Regulation of by this act unless and until

exercise of

(i.) Notice requiring payment of the mortgage money has power of sale. been served on the mortgagor or one of several mortgagors, and default has been made in payment of the mortgage money, or of part thereof, for three months after such service (b); or

(ii.) Some interest under the mortgage is in arrear and unpaid for two months after becoming due; or

(iii.) There has been a breach of some provision contained in the mortgage deed or in this act, and on the part of the mortgagor, or of some person concurring in making the mortgage, to be observed or performed, other than and besides a covenant for payment of the mortgage money or interest thereon.

(b) A notice under sub-sect. 1 does not prevent a sale under subsects. 2 and 3, as soon as the conditions of those sub-sections are fulfilled (Farrar v. Farrars, Limited, 40 Ch. D. 395). As to notices, see sect. 67, post, p. 619.

A notice under sub-sect. 1, given by a mortgagee holding several mortgages executed by the same mortgagor, who has excluded sect. 17 of this act, does not affect the mortgagee's right to consolidate (Griffith v. Pound, 45 Ch. D. 553).

21.-(1.) A mortgagee exercising the power of sale conferred Conveyance, by this act shall have power, by deed, to convey the property receipt, &c. sold, for such estate and interest therein as is the subject of the on sale. mortgage, freed from all estates, interests, and rights to which the mortgage has priority, but subject to all estates, interests, and rights which have priority to the mortgage; except that, in the case of copyhold or customary land, the legal right to admittance shall not pass by a deed under this section, unless the deed

S.

Q Q

44 & 45 Vict. is sufficient otherwise by law, or is sufficient by custom, in that

c. 41, s. 21.

Mortgagee's receipts, discharges, &c.

behalf (c).

(2.) Where a conveyance is made in professed exercise of the power of sale conferred by this act, the title of the purchaser shall not be impeachable on the ground that no case had arisen to authorize the sale, or that due notice was not given, or that the power was otherwise improperly or irregularly exercised; but any person damnified by an unauthorized, or improper, or irregular exercise of the power shall have his remedy in damages against the person exercising the power (d).

(3.) The money which is received by the mortgagee, arising from the sale, after discharge of prior incumbrances to which the sale is not made subject, if any, or after payment into court under this act of a sum to meet any prior incumbrance, shall be held by him in trust to be applied by him, first, in payment of all costs, charges, and expenses, properly incurred by him, as incident to the sale or any attempted sale, or otherwise; and secondly, in discharge of the mortgage money, interest, and costs, and other money, if any, due under the mortgage; and the residue of the money so received shall be paid to the person entitled to the mortgaged property, or authorized to give receipts for the proceeds of the sale thereof.

(4.) The power of sale conferred by this act may be exercised by any person for the time being entitled to receive and give a discharge for the mortgage money.

(5.) The power of sale conferred by this act shall not affect the right of foreclosure.

(6.) The mortgagee, his executors, administrators, or assigns, shall not be answerable for any involuntary loss happening in or about the exercise or execution of the power of sale conferred by this act or of any trust connected therewith.

(7.) At any time after the power of sale conferred by this act has become exerciseable, the person entitled to exercise the same may demand and recover from any person, other than a person having in the mortgaged property an estate, interest, or right in priority to the mortgage, all the deeds and documents relating to the property, or to the title thereto, which a purchaser under the power of sale would be entitled to demand and recover from him.

(c) This section does not enable an equitable mortgagee to convey the legal estate (Re Hodson and Howe, 35 Ch. Div. 668).

(d) The fact that notice had not been given by the mortgagee under sect. 20 (i.) was held not to affect a purchaser (Re Thompson and Holt, 44 Ch. D. 492; see Re Tritton, 1891, W. N. 194).

22.-(1.) The receipt in writing of a mortgagee shall be a sufficient discharge for any money arising under the power of sale conferred by this act, or for any money or securities comprised in his mortgage, or arising thereunder; and a person paying or transferring the same to the mortgagee shall not be

concerned to inquire whether any money remains due under the 44 & 45 Vict. mortgage.

(2.) Money received by a mortgagee under his mortgage or from the proceeds of securities comprised in his mortgage shall be applied in like manner as in this act directed respecting money received by him arising from a sale under the power of sale conferred by this act; but with this variation, that the costs, charges, and expenses payable shall include the costs, charges, and expenses properly incurred of recovering and receiving the money or securities, and of conversion of securities into money, instead of those incident to sale.

c. 41, s. 22.

of insurance

23. (1.) The amount of an insurance effected by a mort- Amount and gagee against loss or damage by fire under the power in that application behalf conferred by this act shall not exceed the amount speci- money. fied in the mortgage deed, or, if no amount is therein specified, then shall not exceed two third parts of the amount that would be required, in case of total destruction, to restore the property insured.

(2.) An insurance shall not, under the power conferred by this act, be effected by a mortgagee in any of the following cases (namely):

(i.) Where there is a declaration in the mortgage deed that
no insurance is required:

(ii.) Where an insurance is kept up by or on behalf of the
mortgagor in accordance with the mortgage deed:
(iii.) Where the mortgage deed contains no stipulation
respecting insurance, and an insurance is kept up
by or on behalf of the mortgagor, to the amount in
which the mortgagee is by this act authorised to in-

sure.

(3.) All money received on an insurance effected under the mortgage deed or under this act shall, if the mortgagee so requires, be applied by the mortgagor in making good the loss or damage in respect of which the money is received.

(4.) Without prejudice to any obligation to the contrary imposed by law, or by special contract, a mortgagee may require that all money received on an insurance be applied in or towards discharge of the money due under his mortgage.

neration, and

24.-(1.) A mortgagee entitled to appoint a receiver under Appointment, the power in that behalf conferred by this act shall not appoint powers, remua receiver until he has become entitled to exercise the power of duties of sale conferred by this act, but may then, by writing under his receiver. hand, appoint such person as he thinks fit to be receiver.

(2.) The receiver shall be deemed to be the agent of the mortgagor; and the mortgagor shall be solely responsible for the receiver's acts or defaults, unless the mortgage deed otherwise provides.

(3.) The receiver shall have power to demand and recover all the income of the property of which he is appointed receiver, by action, distress, or otherwise, in the name either of the mort

44 & 45 Vict.

c. 41, 8. 24. gagor or of the mortgagee, to the full extent of the estate or interest which the mortgagor could dispose of, and to give effectual receipts, accordingly, for the same (e).

Sale of mortgaged

property in

(4.) A person paying money to the receiver shall not be concerned to inquire whether any case has happened to authorize the receiver to act.

(5.) The receiver may be removed, and a new receiver may be appointed, from time to time by the mortgagee by writing under his hand.

(6.) The receiver shall be entitled to retain out of any money received by him, for his remuneration, and in satisfaction of all costs, charges, and expenses incurred by him as receiver, a commission at such rate, not exceeding five per centum on the gross amount of all money received, as is specified in his appointment, and if no rate is so specified, then at the rate of five per centum on that gross amount, or at such higher rate as the court thinks fit to allow, on application made by him for that purpose.

(7.) The receiver shall, if so directed in writing by the mortgagee, insure and keep insured against loss or damage by fire, out of the money received by him, any building, effects, or property comprised in the mortgage, whether affixed to the freehold or not, being of an insurable nature.

(8.) The receiver shall apply all money received by him as follows (namely):

(i.) In discharge of all rents, taxes, rates, and outgoings what-
ever affecting the mortgaged property; and

(ii.) In keeping down all annual sums or other payments, and
the interest on all principal sums, having priority to
the mortgage in right whereof he is receiver; and
(iii.) In payment of his commission, and of the premiums on
fire, life, or other insurances, if any, properly payable
under the mortgage deed or under this act, and the
cost of executing necessary or proper repairs directed
in writing by the mortgagee; and

(iv.) In payment of the interest accruing due in respect of
any principal money due under the mortgage;

and shall pay the residue of the money received by him to the person who, but for the possession of the receiver, would have been entitled to receive the income of the mortgaged property, or who is otherwise entitled to that property.

(e) A mortgagor will be restrained from distraining for rent after a receiver has been appointed, even if such receiver has been negligent (Bayly v. Went, 51 L. T. 764). As to appointments by the court when this power could be exercised, see Tillett v. Nixon (25 Ch. D. 238).

Action respecting Mortgage.

25. (1.) Any person entitled to redeem mortgaged property may have a judgment or order for sale instead of for redemption

in an action brought by him either for redemption alone, or for 44 & 45 Vict. sale alone, or for sale or redemption, in the alternative. c. 41, s. 25.

&c.

(2.) In any action, whether for foreclosure, or for redemption, action for or for sale, or for the raising and payment in any manner of foreclosure, 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.

(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.

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

c. 86, s. 48.

(f) The powers given by sub-sects. 1 and 2 are distinct (Woolley V. Colman, 21 Ch. D. 173). It has been said that the order for sale under sub-sect. 1 is a matter of right (Clarke v. Pannell, 29 S. J. 147). The discretion referred to in sub-sect. 2 must be exercised judicially (Merchant Banking Co. v. London, &c., 55 L. J. Ch. 479). Where a mortgagee's notice Sale at request to pay off had expired and his power of sale was exerciseable, and the of mortgagor. mortgagor commenced an action for sale or redemption, an order for sale

was made on the application of the mortgagor, such sale to be conducted

by himself out of court, and to take place within three months (Brewer v.

Square, 1892, 2 Ch. 111). In a foreclosure action a sale was ordered at Of mortgagee. the request of the mortgagor upon his depositing 150l. in court to meet expenses of sale (Weston v. Davidson, 1882, W. N. 28). A sale has been ordered under sub-sect. 2, at the request of an equitable mortgagee by simple deposit (Oldham v. Stringer, 51 L. T. 895; 33 W. R. 251), and of a second mortgagee (Saul v. Pattinson, 54 L. T. 670; 55 L. J. Ch. 831). A sale may be ordered of so much only as will satisfy the plaintiff's claim (Wade v. Wilson, 22 Ch. D. 235). At the request of the mortgagee, orders for sale have been made without allowing time for redemption (Wade v. Wilson, sup.; Oldham v. Stringer, sup.); but such time will usually be given (Green v. Biggs, 52 L. T. 680). Three months have been given (Ib., Jones v. Harris, 55 L. T. 884). Ten days where the security was clearly insufficient (Charlewood v. Hammer, 28 S. J. 710; see Williams v. Owen, 27 S. J. 256).

The sale may be ordered out of court, a reserve price being fixed and Sale out of the purchase-money being paid into Court (Union Bank v. Ingram, 20 court.