This section is from the book "Dart's Treatise On The Law And Practice Relating To Vendors And Purchasers Of Real Estate", by J. Henry Dart . Also available from Amazon: A treatise on the law and practice relating to vendors and purchasers of real estate.
(p) Girdlestone v. Lavender, (1852) 9 Ha. App. liii.; Campbell v. Moxhay, (1854) 18 Jur. 641.
(q) Laslelt v. Cliffe, (1854) 2 Sm. & G. 278; and see Woodford v. Brooking, (1874) 17 Eq. 425.
(r) Boydell v. Manby, (1852) 9 Ha. App. liii. ; Bellamy v. Cockle, (1854)
18 Jur. 465 ; 23 L. J. Ch. 456 ; and see Whitfield v. Roberts, (1859) 5 Jur. N. S. 113 ; 28 L. J. Ch. 431.
(s) Corsellis v. Patman, (1867) 4 Eq. 156.
(t) Newman v.Selfe, (1864) 33 Beav. 522 ; 33 L. J. Ch. 527 ; and see Woodford v. Brooking, sup., where judgment went against him by default.
(u) Wickham v. Nicholson, (1854)
19 Beav. 38.
Now, under s. 25 of the Conv. Act, 1881, which has repealed s. 48 of the Chancery Procedure Act, 1852, any person entitled to redeem mortgaged property may have a judgment or order for sale instead of for redemption in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 sale alone, or for sale or redemption in the alternative ; and 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 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 direct a sale of the mortgaged property, on such terms as it thinks fit, including at its discretion 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. Nor, by sub-s. 4, is it necessary that the priorities of incumbrancers should be determined prior to the sale. "Where the action is brought by a person interested in the right of redemption, and he seeks a sale, the Court may, by sub-s. 3, on the application of any defendant, direct the plaintiff to give such security for costs as it thinks fit, and may give the conduct of the sale to any defendant, and may give such directions as it thinks fit concerning the costs of any of the defendants. The above provisions, by sub-s. 5, apply to actions brought either before or after 1882.
Sale under Conv. Act;
(x) Button v. Sealy, (1858) 4 Jur. N. S. 150 ; see, too, Macrae v. Eller~ ton, (1858) ib. 967. Where the decree was simply for foreclosure, liberty might he reserved to apply in chambers for a sale : Greenongh v. Littler,
(1880) 15 Ch. D. 93.
(y) Whitfield v. Roberts, sup. For forms, see Seton, 6th ed., Forms 3 and 4, pp. 1912 - 4.
(z) Hewitt v. Namon, (1858) 7 W. R. 5 ; 28 L. J. Ch. 49.
Under this s. an order for sale may be made at any time before the order for foreclosure has been made absolute (a), even on the motion for making the foreclosure order absolute (b) ; and it may be made on an interlocutory application before the trial (c), or on motion for judgment in default of appearance or of defence (d), and the sale may be directed to take place out of Court (e). The discretionary power given by the s. is, however, to be exercised judicially ; and, accordingly, where the first mortgagees asked for foreclosure, and produced evidence to show that a sale would not realize the amount of their mortgage, the Court refused to order a sale at the instance of the mortgagor and subsequent mortgagees (f). A sale maybe directed without the plaintiff's consent, although the mortgaged property is only an equity of redemption, there being prior mortgagees not parties to the action (g). Where a defendant mortgagor did not appear, and the second mortgagee made default in pleading, a sale of only so much of the property as would be sufficient to satisfy what was due on the plaintiff's mortgage, the amount to he first certified, was directed (h). It seems that the fact that a mortgaged property can only he sold in lots is a sufficient reason for refusing a sale, if the first mortgagee objects (i).
Order for sale when made.
(a) Union Bank of London v. Ingram, (1882) 20 Ch. D.463 ; 51 L.J. Ch. 508.
(b) Weston v. Davidson, (1882) W. N. 28. In this case the Court ordered the defendant (the mortgagor) to deposit 150/., and to pay the costs of the application, within a month.
(c) Woolley v. Cohnan, (1882) 21 Ch. D. 169 ; 51 L. J. Ch. 854, where a reserved price was fixed, and the conduct given to the mortgagor, he being ordered to pay 150l. as security. But in Davies v. Wright, (1886) 32 Ch. D. 220, the mortgagor having been given the conduct of the sale, was not ordered to give security.
SeeBrewer v. Square, 1892, 2 Ch. 1ll; 61 L. J. Ch. 516, where mortgagor ordered to give security for 100/. ; and Woolley v. Cohnan and Davies v. Wright, sup. considered. As to the conduct of the sale generally, see inf. p. 1161.
(d) Wade v. Wilson, (1882) 22 Ch. D. 235 ; 52 L. J. Ch. 399 ; Oldham v. Stringer, (1884) 33 W. It. 251.
(e) Woolley v. Cohnan, sup. ; Brewer v. Square, sup.
(f) Merchant Banking Co. v. London § Hanseatic Bank, (1886) 55 L. J. Ch. 479.
(g) Cripps v. Wood, (1882) 51 L. J. Ch. 584.
Where a mortgagee or mortgagor, whether legal or equitable, or a person entitled to, or having property subject to, a legal or equitable charge, or a person having the right to foreclose or redeem any mortgage, whether legal or equitable, requires only a sale, foreclosure, delivery of possession by the mortgagor, redemption, reconveyance, or delivery of possession by the mortgagee, he may obtain such relief by means of an originating summons (k) ; and, unless he wishes to combine other relief with one of those above enumerated, he will not be allowed the costs of proceeding by an action (/).
Sale or foreclosure may be obtained in chambers.
Under the old practice, an immediate sale would not be ordered, unless all parties interested in the equity of redemption were before the Court and gave their consent; and, as in the case of foreclosure, a day was in the first instance fixed for payment; and in default of payment a sale was directed (m). Where, however, the mortgaged property consisted of leaseholds, the rents of which were insufficient to keep down the interest and other charges upon it, an immediate sale was ordered at the instance of the first mortgagee (n) ; so, also, in other cases where special circumstances made this the most desirable course (o) ; but this discretionary power was exercised (unless with consent) only under special circumstances-e.g., where there was such a complication of interests that the common decree could not be conveniently worked out (p) - and was exercised for the general benefit of the estate, and not so as to operate injuriously or oppressively on any person interested (q). The jurisdiction under the Conv. Act is also discretionary ; and the discretion to order an immediate sale will not apparently be exercised in cases where the defendant does not appear. In such cases the practice still seems to be to postpone the sale till after the certificate; thus one month seems in one case (r) to have been allowed after the certificate; in another (s), three. Where the writ only asked for foreclosure, and the defendant did not appear, an order was made for foreclosure, with liberty to apply in chambers for a sale, on giving the mortgagor notice of the intention to do so (t). Where the mortgagor appeared but put in no defence, an immediate order for sale was made (u).