139. Foreclosure will be treated under the folio-wring heads:
(a) When the right to foreclose accrues (p. 239).
(b) When the right to foreclose is barred (p. 240).
(c) Decree for deficiency (p. 241).
(d) Personal remedies (p. 241).
(e) Receivers (p. 241).
(f) Kinds of foreclosure (p. 242).
When the Right to Foreclose Accrues.
By the early common law, a mortgagee's interest became absolute by breach of the condition in the defeasance; but, after the right to an equity of redemption became established,465 some proceeding had to be taken before the mortgagee could make the land available for the satisfaction of the mortgage debt,
462 1 Stim. Am. St. Law, § 1905.
463 Remington Paper Co. v. O'dougherty, 81 N. Y. 474.
464 Stim. Am. St Law, § 1902; Crawford v. Simon, 159 Pa. St. 5S5, 28 Atl 491; Spaulding v. Sones (Ind. App.) 39 N. E. 526; Jones v. Trust Co. (S. D.) 03 N. W. 553; Walker v. English (Ala.) 17 South. 715. There are in some states similar provisions as to the entry of credits. Loeb v. Huddleston (Ala.) 16 South. 714.
465 See ante, p. 183.
The right to enforce a mortgage exists as soon as there is a breach by nonpayment at the time fixed, or by failure of performance of the condition of the mortgage, whatever it may be.466 But a surety or indorser of the mortgage note cannot foreclose a mortgage given to indemnify him, until he has actually paid the note.467 When, however, the condition of the mortgage is to save harmless, foreclosure proceedings may be begun on the failure of the mortgagor to pay the note when due.468
When the Right to Foreclose is Barred.
The courts have applied the statute of limitations, by analogy, to proceedings for the foreclosure of mortgages.469 And in some states there are special statutory provisions on the subject.470 The right to foreclose is never barred by lapse of time, unless the mortgagor has been in possession without the payment of principal or interest.471 Such a bar to foreclosure may be waived by recognition of the mortgage as still existing.472 Discharge of the debt by the statute of limitations does not discharge the mortgage lien,473 except in a few states.474 A decree for deficiency cannot be had in a foreclosure suit after the debt is barred,475 nor can an equitable lien for purchase money be enforced after the debt itself is bar466 Harding v. Manufacturing Co., 34 Conn. 458; Trayser v. Trustees of As-bury University, 39 Ind. 556; Gladwyn v. Hitchinan, 2 Vern. 135.
467 Burt v. Gamble, 98 Mich. 402, 57 N. W. 261; Lewis v. Richey, 5 Ind. 152; Francis v. Porter, 7 Ind. 213; Dye v. Mann, 10 Mich. 291. Cf. Kramer v. Bank, 15 Ohio, 25:;.
468 Thurston v. Prentiss, 1 Mich. 193.
469 Ray v. Pearce, 84 N. C. 485; Cleveland Ins. Co. v. Reed, 1 Biss. 180, Fed. Cas. No. 2,889.
470 See 1 Sum. Am. St. Law, § 1928; 2 Jones, Mortg. (5th Ed.) § 1193. And see In re Tarbell, 160 Mass. 407, 36 N. E. 55.
471 Locke v. Caldwell, 91 111. 417; Chouteau's Ex'r v. Burlando, 20 Mo. 482.
472 Schifferstein v. Allison, 123 111. 662, 15 N. E. 275; Blair v. Carpenter, 75 Mich. 167, 42 N. W. 790; Carson v. Cochran, 52 Minn. 67, 53 N. W. 1130.
473 Thayer v. Mann, 19 Pick. (Mass.) 535; Michigan Ins. Co. v. Brown, 11 Mich. 265; Mott v. Maris (Tex. Civ. App.) 29 S. W. 825.
474 Pollock v. Maison, 41 111. 516; Duty v. Graham, 12 Tex. 427; City of Ft. Scott v. Schulenberg, 22 Kan. 648; Lord v. Morris, 18 Cal. 482.
475 Hulbert v. Clark, 57 Hun, 558, 11 N. Y. Supp. 417; Slingerland v. Sherer, 46 Minn. 422, 49 N. W. 237.
§§ 138-139) red 476 The statute begins to run from the time the condition 16 broken.477
Decree for Deficiency.
In almost all the states, and in the federal courts, a decree for a deficiency of the mortgage debt may be rendered in the foreclosure suit.478 And for this purpose, in most states, third persons liable for the debt may be joined as defendants.479 But such a judgment cannot be rendered against one who has not been made a party.480 When the mortgagor or principal debtor is dead, no judgment for the deficiency can be rendered against his personal representative. The deficiency must be proved against his estate.481
The proceedings for enforcing a mortgage, and the personal remedies against the debtor, are concurrent.482 But, in most states where judgment for the deficiency may be given on foreclosure, a personal action for the debt cannot be maintained against the debtor while foreclosure proceedings are pending,483 and in some states
476 Borst v. Corey, 15 N. Y. 505; Littlejohn v. Gordon, 32 Miss. 235.
477 The mortgagor, or the one holding under him, being in possession. Nevitt v. Bacon, 32 Miss. 212. See Coyle v. Wilkins, 57 Ala. 108.
478 Grand Island Savings & Loan Ass'n v. Moore, 40 Neb. 686, 59 N. W. 115; Flentham v. Steward, 45 Neb. 640, 63 N. W. 924; Shumway v. Orchard (Wash.) 40 Pac. 634. To authorize such a judgment against a grantee, he must have assumed the mortgage. Blass v. Terry, 87 Hun, 563, 34 N. Y. Supp. 475; Williams v. Maftzger, 103 Cal. 438, 37 Pac. 411; Green v. Hall, 45 Neb. 89. 63 N. W. 119. Cf. Farmers' Loan & Trust Co. v. Grape Creek Coal Co., 13 C. C. A. 87, 65 Fed. 717.
479 palmeter v. Carey, 63 Wis. 426, 21 N. W. 793, and 23 N. W. 586; 2 Jones, Mortg. (5th Ed.) § 1710. But not in the absence of a statute permitting it. Id. But see Hilton v. Bank, 26 Fed. 202.
480 Williams v. Follett, 17 Colo. 51, 28 Pac. 330. Such as a nonresident who has not appeared. Schwinger v. Hickok, 53 N. Y. 280 (a mortgagor); Blumberg v. Birch, 99 Cal. 416, 34 Pac. 102.
481 Leonard v. Morris, 9 Paige (N. Y.) 90; Pechaud v. Rlnquet, 21 Cal 76. And see Mutual Ben. Life Ins. Co. v. Howell, 32 N. J. Eq. 146; Null v. Jones, 5 Neb. 500.