So long as the final order of foreclosure remains in force, it is a complete bar to the right to redeem; but the mortgagor may apply to set aside the order and to be allowed to redeem.

(b) Collinson v. Jeffrey, [1896] 1 Ch. 644.

(c) Nanny v. Edwards, 1827, 4 Russ. 124; Jones v. Creswicke, 1839, 9 Sim. 304; Eyre v. Hanson, 1840, 2 Beav. 478; Patch v. Ward, 1867, L.R. 3 Ch. 203, at p. 212; Idington v. Trusts and Guarantee Co., 1917, 11 A.L.R. 337, 34 D.L.R. 86.

(d) Gilmour v. Myers, 1868, 2 Chy. Ch. (Ont.) 179.

(e) G. v. V. 1867, 2 Chy. Ch. (Ont.) 33.

(f) Cameron v. Cameron, 1869, 2 Chy. Ch. (Ont.) 375. See Ford v. Steeples, 1844, 1 U.C. Jur. pt. 1, 282; Street v. O'Reilly, 1868, 2 Chy. Ch. (Ont.) 270; Cahuac v. Durie, 1869, 2 Chy. Ch. (Ont) 394.

In Campbell v. Holyland (g) Jessel, M.R. said:-

"The court made various orders-interim orders fixing a time for payment of the money-and at last there came the final order which was called foreclosure absolute, that is, in form, that the mortgagor should not be allowed to redeem at all; but it was form only, just as the original deed was form only; for the courts of equity soon decided that notwithstanding the form of that order they would after that order allow the mortgagor to redeem. That is although the order of foreclosure absolute appeared to be a final order of the court, it was not so, but the mortgagee still remained liable to be treated as mortgagee, and the mortgagor still retained a claim to be treated as mortgagor, subject to the discretion of the court. Therefore, everybody who took an order of foreclosure absolute knew that there was still a discretion in the court to allow the mortgagor to redeem."

Where third parties have not acquired rights to the property, and the mortgagee can be recompensed in money, the foreclosure may be opened and the time for redemption extended, but some reasonable excuse must be shown by the applicant for not having redeemed by the time fixed.

Where it was shown that the money was ready, but owing to illness and accident could not be paid at the exact time, this was held to be a sufficient ground (h). Relief was given in a case in which it was shown that the mortgagee had repeatedly stated, before' and after the decree absolute, that he wanted the money not the property, and the mortgagor was under a reasonable belief that the mortgagee would extend the time for payment, and the value of the property considerably exceeded the mortgage debt (i). A foreclosure was opened eighteen months after the final order, where the mortgagor was illiterate, and had no solicitor in the cause, and misunderstood the object of the bill which was the only paper served on him, the value of the property appearing to be three times the amount of the mortgage debt (j).

(g) 1877, 7 Ch. D. 166, at p. 171.

(h) Jones v. Creswicke, 1839, 9 Sim. 304.

(i) Thornhill v. Manning* 1851, 1 Sim. N.S. 451; cf. Trinity College v. Hill, 1884, 10 O.A.R. 99; Scottish American Investment Co. v. Brewer, 1901, 2 O.L.R. 369.

Where there has been actual, positive fraud, and not mere constructive fraud, on the part of the mortgagee, or where he has insisted on rights which upon due investigation are found to have been overstated, this relief may be afforded to the mortgagor (k).

Relief has been granted even as against a purchaser from the mortgagee after the final order of foreclosure, but there must be strong grounds for disturbing the purchaser. Thus, if the purchaser bought the lands within a short time after the final order was made and with notice of the fact that they were of much greater value than the mortgage debt, the foreclosure might be opened as against him, but the court would be disinclined to interfere with a person who purchased the lands many years after the date of the order and without notice of any circumstances which might lead to opening the foreclosure (l).

Where the decree directed foreclosure, and a final order was made dismissing the bill instead of foreclosing the plaintiff, and where, further, the report of the master allowed the plaintiff only six weeks to redeem, although the decree gave him six months, it was held that these were such irregularities as to give notice to the purchaser from the mortgagee that there was something unusual in the proceeding, and the mortgagor was allowed to redeem (m).

The mortgagor must make his application to open the foreclosure within a reasonable time. What is a reasonable time will depend upon the nature of the property (n).

(j) Piatt v. Ashbridge, 1865, 12 Gr. 105; see Ford v. Wastell, 1847, 6 Hare 229.

(k) Patch v. Ward, 1867, L.R. 3 Ch. 203. (l) Campbell v. Holyland, 1877, 7 Ch.D. 166. (m) Johnston v. Johnston, 1882, 9 O.P.R. 259. (n) Campbell v. Holyland, 1877, 7 Ch.D. 166.

The terms are in the discretion of the court. The mortgagor must satisfy the court that he will be able to redeem if further time is allowed, and he may be required to pay the interest and costs by an early date; or to pay the costs forthwith; or to give security for costs in the event of default (o).

The fact that the mortgagee has obtained a final order of foreclosure will not, as a general rule, preclude him from suing on the covenant provided that he is in a position to re-convey the mortgaged property. The mortgagor who is sued on the covenant acquires a new right to redeem, although he has parted with the equity of redemption, and is entitled to a reconveyance on payment of the debt (p). If the mortgagor offers to pay the mortgage, and if the mortgagee -declines to receive the money, the court would restrain him from afterwards suing for the mortgage debt (q). If after a mortgagee has obtained a final order of foreclosure he has mortgaged the estate, that fact alone will not deprive him of the right to sue for the mortgage money, if at the time of bringing the action he has paid off the mortgage created by himself, and is in a position to reconvey the estate; neither does the fact of his having allowed the premises to fall into decay prevent him from so suing (r).

If a mortgagee obtains foreclosure before realizing on collateral securities he thereby deprives himself of the benefit of such securities (s).

(o) See Trinity College v. Hill, 1885, 8 O.R. 286; Holford v. Yate, 1855, 1 K. & J. 677; Whitfield v. Roberts, 1861, 7 Jur. N.S. 1268; Howard v. Macara, 1859, 1 U.C. Chy. Ch. 27.

(p) Lockhart v. Hardy, 1846, 9 Beav. 349, 18 R.C. 434; Palmer v. Hendrie, 1859, 27 Beav. 349; Kinnaird v. Trollope, 39 Ch.D. 636; Bank of Toronto v. Irwin, 1881, 28 Gr. 397; Chatfield v. Cunningham, 1892, 23 O.R. 153. See also chapter 23, Action on the Covenant, Sec. 227, as to the principle that the mortgagee is not entitled to enforce the covenant for payment unless he is in a position to restore the mortgaged property.

(q) Munsen v. Hauss, 1875, 22 Gr. 279.

(r) Munsen v. Hauss, supra.