482 Rothschild v. Railway Co., 84 Hun, 103, 32 N. Y. Supp. 37; Jackson v. Hull, 10 Johns. (N. Y.) 481; Hughes v. Edwards, 9 Wheat. 489; Torrey v. Cook, 116 Mass. 163. But see Felton v. West, 102 Cal. 266, 36 Pac. 676.
483 Holmes v. Railway Co. (N. J. Sup.) 29 Atl. 419; Hargreaves v. Menrealprop.-16 such a proceeding cannot be maintained while foreclosure is pending without consent of the court.484 After foreclosure sale the creditor may sue on the mortgage debt for any deficiency which may remain unsatisfied.485 As an auxiliary remedy, the mortgagee may obtain the appointment of a receiver to take charge of the mortgaged premises whenever the mortgage is insufficient and the mortgagor is insolvent,486 and in some cases when the mortgagor is impairing the security by committing waste.487 And the mortgagor may secure the appointment of a receiver when the mortgagee in possession is insolvent, and is committing waste.488
140. The principal forms of foreclosure employed in the several states are:
(a) By entry and possession (p. 243).
(b) By writ of entry (p. 244).
(c) By an equitable proceeding', under which there may be
(1) A strict foreclosure, or
(2) A decree of sale (p. 248).
There is great variety in the modes of foreclosure in use in the several states, and but little uniformity in detail in the states where the same method is used. Jurisdiction to foreclose mortgages was ken, 45 Neb. 668, 63 N. W. 951; Powell v. Patison, 100 Cal. 236, 34 Pac. 677; Winters v. Mining Co., 57 Fed. 287.
484 in re Moore, 81 Hun, 389, 31 N. Y. Supp. 110; Meehan v. Bank, 44 Neb. 213, 62 N. W. 490.
485 Globe Ins. Co. v. Lansing, 5 Cow. (N. Y.) 880; Lansing v. Goelet, 9 Cow. (N. Y.) 346; Hunt v. Stiles, 10 N. H. 466. But see Bassett v. Mason, 18 Conn. 131.
486 Rider v. Bagley, 84 N. Y. 461; Douglass v. Cline, 12 Busb (Ky.) 60S; Ogden v. Chalfant, 32 W. Va. 559, 9 S. E. 879.
487 Cortleyeu v. Hathaway, 11 N. J. Eq. 39; Stockman v. Wallis, 30 N. J. Eq. 449.
488 2 Jones, Mortg. (5th Ed.) § 1517. And see Boston & P. R. Corp. v. New York & N. E. R. Co., 12 R. I. 220.
Originally in courts of equity, and this jurisdiction is very generally retained.489 In a number of states the subject is fully coverod by statutory provisions,490 while in others the proceedings are left to the inherent powers of the court. Equitable mortgages are foreclosed in the same way as mortgages in the usual form.491
Foreclosure by Entry and Possession.
In some of the New England states,492 foreclosure is effected by an entry on the mortgaged premises, and the holding possession for a limited time, after which all right of redemption is barred.493 After the expiration of this time the mortgagee takes an absolute estate, and becomes entitled to all the rents and profits. The entry must be peaceable, and in the presence of two witnesses, who are to make a certificate of the fact, and the certificate is to be recorded. But a certificate of the mortgagor who consents to the entry, if duly recorded, has the same effect.495 An entry on part of the land is good,496 and, when several parcels are covered by the same mortgage, an entry on one is sufficient.497 Possession under the entry may be constructive.498 Although the estate of the mortgagee becomes absolute by the failure of the mortgagor to redeem within the time allowed, this effect may be waived by the acceptance of payment after the time for redemption has passed.499 The rights acquired by the entry may be assigned before the time for redemption has expired.500 Foreclosure by this method, when complete, operates as a discharge of the mortgage debt, to the amount of the value of the land.501
489 2 Jones, Mortg. (5th Ed.) § 1443.
490 l stim. Am. St Law, art 192; 2 Jones, Mortg. (5th Ed.) c. 30.
491 Sprague v. Cochran, 144 N. Y. 104, 38 N. E. 1000.
492 These are Maine, New Hampshire, Massachusetts, and Rhode Island.
493 This Is three years in all the states except New Hampshire, where only one year is allowed for redemption. 2 Jones, Mortg. (5th Ed.) § 1239; 1 Stim. Am. St Law, § 1921.
495 1 stim. Am. St Law, § 1921; 2 Jones, Mortg. (5th Ed.) §§ 1259, 1261. 496 Lennon v. Porter, 5 Gray (Mass.) 318; Colby v. Poor, 15 N. H. 19S. But see Spring v. Haines, 21 Me. 126.
497 Bennett v. Conant, 10 Cush. (Mass.) 163; Green v. Pettingill, 47 N. H. 875; Shapley v. Rangeley, 1 Woodb. & M. 213, Fed. Cas. No. 12,707.
498 Ellis v. Drake, 8 Allen (Mass.) 161; Fletcher v. Cary, 103 Mass. 475; Deming v. Comings, 11 N. H. 474.
499 Joslln v. Wyman, 9 Gray (Mass.) 63; Mcneil v. Call, 19 N. H. 403; Chase v. Mclellan, 49 Me. 375.
500 Deming v. Comings, 11 N. H. 474.
Foreclosure by Writ of Entry.
In the same states a mortgage may also be foreclosed by a writ of entry.502 The proceeding is essentially the same as that by entry and possession, except a writ of entry is brought to secure the possession. This must always be the method where a peaceable entry is impossible. A legal interest in the land is necessary to sustain the action, and the writ must be brought against the tenant of the freehold.503 But the mortgagor may always be joined as defendant, though he has assigned all his interest.504 If the plaintiff is successful, a conditional judgment is rendered,-that, unless defendant pays the amount due within two months, the plaintiff shall have possession; and this possession, when acquired, has the same effect as possession acquired by peaceable entry,-that is, the mortgagor has still three years within which to redeem.505