After default under a mortgage, the mortgagee might before the Judicature Act have pursued various remedies by action at law or suit in equity concurrently (q). He may now combine his claims in one action (r). In Ontario it is provided 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 party personally liable therefor and possession of the mortgage premises. The writ shall be endorsed in accordance with the form applicable thereto.

In this chapter will be discussed specially the remedy by way of foreclosure or sale which is the main purpose of this combined "mortgage action." Foreclosure or sale was formerly obtained by a suit in equity, and it was chiefly in such suits as well as in suits for redemption that the Court of Chancery gave effect, on equitable terms and by appropriate procedure, to the various equitable principles, explained in earlier chapters, governing the relation of mortgagor and mortgagee both as it existed between the original parties and as it was effected by subsequent transfers of the mortgage or by subsequent mortgages or transfers of the equity of redemption.

In Ontario prior to the Administration of Justice Act of 1873 (s), it was not competent for the Court of Chancery to grant a judgment for immediate payment of the mortgage money, though the remedy for enforcement of the charge on the land was to be obtained in that court, and that court had jurisdiction to order payment by the mortgagor of the residue of the claim which should not be satisfied by the sale of the land (t). The remedy for enforcement of immediate payment was by action at law upon the covenant for payment. In such action interest could be recovered only down to the date of the writ, and a personal order for payment of the subsequent interest could be obtained only by the bringing of a new action. Now, however, the second action is unnecessary because in an action for foreclosure or sale a personal order may be made for payment of the interest found to be due on the taking of the mortgage account, and the court regards as vexatious the taking of a double set of proceedings where one action would have sufficed (u).

Thomas, [1909] 1 Ch. 713. As to the doctrine of laches as applied to a claim for redemption of a mortgage, see chapter 25, Action for Redemption, Sec. 251.

(q) See chapter 22, Action for Possession, Sec. 211.

(r) See Dymond v. Croft, 1876, 3 Ch.D. 512; Withall v. Nixon, 1885, 28 Ch.D. 413; Farrar v. Lacy, Hartland & Co., 1885, 31 Ch.D. 42.

(s) 36 V. c. 8; R.S.0.1877, c. 49. By this statute the jurisdiction of the Court of Chancery and that of the courts of common law were rendered to a considerable extent concurrent.

The form of endorsement of a writ of summons embodying the claims for foreclosure, payment and possession which under rule 460 may be combined in one action is as follows:

The plaintiff's claim is on a mortgage dated the day of made between [or by deposit of title deeds], and that the mortgage may be enforced by foreclosure.

If immediate payment is desired add, And to recover from you the defendant, (naming the defendant against whom the relief is claimed) payment of the amount due under a covenant by [you] in that behalf contained in said mortgage (or as the case may be).

(t) Sawyer v. Robertson, 1900, 19 O.P.R. 172. The decision was that an action which combined the claims for immediate payment and for enforcement of the charge was not one in which it was irregular to give a jury notice under s. 103 of the Judicature Act, R.S.O. 1897, c. 51, which provided that, subject to rules of court, all causes, matters and issues over the subject of which prior to the Administration of Justice Act of 1873, the Court of Chancery had exclusive jurisdiction, should be tried without a jury, unless otherwise ordered.

(u) Poulett v. Hill, [1893] 1 Ch. 277. This was an action' for subsequent interest by a mortgagee after having already commenced an action for foreclosure and immediate payment. In Williams v. Hunt, [1905] 1 K.B. 512, the mortgagee refrained in the foreclosure action from asking for an order for immediate payment and subsequently brought an action for payment. The second action was stayed because the mortgagee might have asked for and obtained in the first action all the relief to which she was entitled

If order for immediate possession is desired add), And take notice further that the plaintiff claims to be entitled to recover immediate possession of the mortgaged premises.

And take notice that the plaintiff claims that there is now due by you for principal money the sum of $ [if so add and for taxes (or premiums of insurance or other matters) the sum of $ ] and for interest the sum of $ and that you are liable to be charged with these sums and subsequent interest to be computed at the rate of per centum per annum and costs, in and by the judgment to be drawn up, and that in default of payment thereof within six calendar months from the time of drawing up the judgment your interest in the property may be foreclosed unless before the time allowed you for appearance you file in the office within named a memorandum in writing entitled in this action and signed by yourself or your solicitor to the following effect:-"I dispute the amount claimed by the plaintiff in this action" in which case you will be entitled to four days' notice of the taking of the account of the amount due to the plaintiff.

If you desire a sale of the mortgaged premises instead of a foreclosure, and do not intend to defend the action, you must within the time allowed for appearance, file in the office within named, a memorandum in writing entitled in this action and signed by yourself or your solicitor, to the following effect:-"I desire a sale of the mortgaged premises in the plaintiff's writ of summons mentioned, or a competent part thereof, instead of a foreclosure," and you must deposit in the court to the credit of this action the sum of $80 to meet the expenses of such sale and attach to the said memorandum a certificate of the Accountant of the Supreme Court to the effect that such deposit of $80 has been made.

"The following is a description of the mortgaged premises:" (Set out description sufficient for registration).

The endorsement on the writ should contain a description of the mortgaged lands. But where the plaintiff by mistake omitted from the description of the lands in the writ of summons a parcel included in the mortgage, an order was made, after judgment and final order of foreclosure, vacating the final order and directing an amendment of the writ and all the proceedings (v).

If a plaintiff seeks delivery of possession it is important that the claim should be contained in the endorsement on the writ of summons or in the statement of claim, and that an order for possession should be inserted in the judgment (w).

(v) Clarke v. Cooper, 1892, 15 O.P.R. 54.

In Ontario a writ of summons in an action for foreclosure or sale may be "specially endorsed" (x) so as to entitle the plaintiff to take advantage of rules 56 and 57. Under rule 56, where the writ is specially endorsed, the defendant must with his appearance file an affidavit that he has a good defence upon the merits and shewing the nature of his defence, with the facts and circumstances which he deems entitle him to defend the action (y), and under rule 57 the plaintiff may thereupon cross-examine upon such affidavit and move for judgment (z), and if the court is satisfied that the defendant has not a good defence to the action on the merits, or has not disclosed such facts as may be deemed sufficient to entitle him to defend the action, judgment may be given for the plaintiff.

(w) See Wills v. Luff, 1888, 38 Ch.D. 197. As to enlarging the claim contained in the endorsement on the writ of summons by claiming possession, see Sec. 235, infra.

(x) That is to say, the plaintiff who claims all or any of the remedies authorized by rule 460 and uses the form of endorsement above quoted, may also use a special form of writ which requires the defendant, within the time allowed for appearance, to file and serve an affidavit showing the nature of his defence, and contains a "warning" that in default of the filing and service of such affidavit judgment will be entered and execution issued. Under the former rules it had been held that if a mortgagee "specially endorsed" his writ with a claim for foreclosure and for immediate delivery of possession, and for immediate payment he was not entitled to move for summary judgment for the recovery of possession, although if he had claimed merely possession or payment or both he might have moved for summary judgment. Independent Order of Foresters v. Pegg, 1900, 19 O.P.R. 80. Cf. Central Trust Co. v. Algoma Steel Co., 1903, 6 O.L.R. 464. Rule 33 now expressly provides for the special endorsement of a writ of summons in actions for foreclosure or sale. If a writ is specially endorsed the specific claim should be followed by the words, "and the plaintiff further claims $ for costs."

(y) An affidavit is not necessary where an appearance is entered by the official guardian for an infant or lunatic.

(z) The plaintiff need not file an affidavit on the motion, and he among the persons beneficially entitled within three years, it becomes vested in the latter, subject to the registration by the personal representatives of a caution or of successive cautions. The statute also contains a special provision as to the powers of the personal representative of a deceased person who was entitled to any freehold land by way of mortgage (e). It is further provided by rule 74, as follows: