Sec. 211. Concurrent remedies of the mortgagee, p. 349. Sec. 212. Possession as between mortgagor and mortgagee, p. 350. Sec. 213. Mortgagee's right in absence of redemise, p. 353. Sec. 214. Proviso for quiet enjoyment until default, p. 355. Sec. 215. Rights of mortgagor in possession, p. 358. Sec. 216. Mortgagee's rights against third parties, p. 360. Sec. 217. Possession under the Land Titles Acts, p. 360.

Sec. 211. Concurrent remedies of the mortgagee

After default had been made under a mortgage, the mortgagee might, before the Judicature Act, pursue his various remedies by action at law or suit in equity concurrently. He might sue in equity for foreclosure or sale, and at the same time bring an action at law on the covenant for payment (a) and an action for possession of the mortgaged land (b).

Since the Judicature Act and under the present rules of practice he may ask for all these remedies in one action, and it will usually be in connection with an action for foreclosure or sale that he will seek to recover possession (c).

It is provided in Ontario by rule 460 as follows:

460. A mortgagee may in an action claim foreclosure of the equity of redemption or a sale of the mortgaged premises, and payment of the mortgage debt by any person personally liable therefor and possession of the mortgaged premises.

(a) Lockhardt v. Hardy, 1846, 9 Beav. 349, 18 R.C. 434. See chapter 23, Action on the Covenant.

(b) Booth v. Booth, 1742, 2 Atk. 343.

(c) See chapter 24, Action for Foreclosure or Sale, where the procedure in a combined mortgage action is outlined.

In addition to his remedies by action a mortgagee may have some remedies which are available without application to the court (d).

In this chapter will be discussed the right to possession as between the mortgagor and the mortgagee and as between the mortgagor or mortgagee and third parties. The right to possession may be enforced by action if the person in possession wrongfully refuses to give up possession. If the mortgagee is or becomes entitled to possession against the mortgagor he may of course bring an action for possession without seeking foreclosure or sale, and whether he is entitled to forclosure or sale or not.