If a defendant fails to pay on or before the day appointed for redemption by him, a final order of foreclosure may be made (s). The plaintiff may become entitled to a final order either under a judgment without a reference where there are no subsequent encumbrancers and the defendants by writ have failed to redeem within the period of six months allowed by the judgment for redemption, or under a judgment with a reference as to subsequent encumbrancers and under the subsequent reports or orders appointing successive days for redemption where the subsequent encumbrancers and the defendants by writ have failed to redeem.

(q) Independent Order of Foresters v. Pegg, 1900, 19 O.P.R. 254. See also Manitoba and Northwest Loan Co. v. Scobell, 1885, 2 M.R. 125.

(r) Mathew v. McLean, 1908, 2 S.L.R. 301.

(s) Subject to rule 485, authorizing a stay of the action in case of payment of the arrears (Sec. 242), and to rule 484, requiring a new account to be taken and a new day to be appointed in certain cases, where the state of the account has been changed between the judgment or report and the day appointed for redemption (Sec. 243).

"It is provided in Ontario by rule 486, as follows:

486. In default of payment according to the report in a foreclosure action, a final order of foreclosure may be granted against the party making default, on an ex parte application.

A judgment for foreclosure without final order is not a good defence to an action for redemption (t), but as a result of the final order the foreclosure which has been conditional (foreclosure nisi) becomes absolute. ..." the effect of an order of foreclosure absolute is to vest the ownership of, and the beneficial title to, the land, for the first time, in the person who previously was a mere encumbrancer. The equitable estate of the mortgagor is then forfeited and transferred to the mortgagee. It is transferred as effectually as if it had been conveyed or released." (u).

The ordinary form of final order of foreclosure is that the defendant do stand absolutely debarred and foreclosed of and from all right, title and equity of redemption of, in and to the mortgaged premises. In the case of a legal mortgage, as the legal estate is already vested in the mortgagee, the effect of the order is to leave the estate vested in him free from the equitable claim. In the case of an equitable mortgage, however, something more is required, and a judgment for foreclosure should be perfected by a direction-not always given but necessarily consequent-that the mortgagor convey the mortgaged land to the mortgagee, so as to complete his irredeemable title by legal ownership (v), or an order should be made vesting the land in the mortgagee, subject of course to any claims relating to the land which have priority over the equitable mortgage.

(t) Senhouse v. Earl, 1752, 2 Ves. Sen. 449.

(u) Heath v. Pugh, 1881, 6 Q.B.D. 345, Lord Selborne, L.C. at p. 360, 16 R.C. 376, at p. 384, S.C. sub nom. Pugh v. Heath, 1882, 7 App. Cas. 235, 16 R.C. 389. As to the decision in this case, see chapter 26, Limitation of Actions, Sec. 274.

The application for a final order of foreclosure may be made to the master in chambers or to any local officer having like jurisdiction. The applicant should produce an office copy of the judgment, an office copy of the report, if any, and there must be filed a certificate (w) of the cashier or other like officer of the bank to which the money is directed to be paid, showing non-payment of the money, duly verified by affidavit as well as an affidavit (x) by the person to be redeemed, showing nonpayment of the money and non-receipt of rents,and negativing his having been in possession, or in case he has been or is in possession, negativing receipts other than those for which credit has been given in the account, or in case there has been a change in the account since the taking of the account, showing that rule 484 (y) has been complied with (z).

The final order is generally granted on an ex parte application, but in some cases notice of the motion will be required. Thus where it appeared by the report that a defendant had not received notice of the proceedings in the master's office, the case being one in which he was entitled to notice, notice of the motion was required to be served on him (a), and where there has been great delay in making the application notice may be required.

(v) See Sadler v. Worley, [1894] 2 Ch. 170, at p. 174; Lees v. Fisher, 1882, 22 Ch.D. 283.

(w) See Bell & Hoyles, Practice Forms, nos. 646, 647; Holmested & Langton, Forms and Precedents, 2nd ed., nos. 596, 597.

(x) See Bell & Hoyles, Practice Forms, nos. 637, 638, 639; Holmested and Langton, Forms and Precedents, 2nd ed., nos. 598, 599, 600.

(y) See Sec. 243, supra.

(z) Holmested, Ontario Judicature Act, 4th ed., 1078.

(a) McCormick v. McCormick, 1874, 6 O.P.R. 208.

The final order for foreclosure may be refused where the mortgagor seeks an extension of time, and reasonable grounds are shewn therefor (b). This relief will, however, not be afforded as an indulgence to the mortgagor if there is no reasonable excuse for the default or where the security is insufficient (c).

Where the mortgagor was prevented from selling the property by reason of an improper advertisement published by the mortgagee's solicitors, six months further time was given, and costs were refused to the mortgagee (d). Where the mortgage was for purchase money and the vendor had failed to pay off a prior mortgage which he had covenanted to pay, and the defendant was prevented by the existence of the prior mortgage from raising money to pay off the second mortgage, the time was extended (e). On an application made before the day fixed for payment it was shown that the value of the mortgaged property would be greatly enhanced by the construction of a contemplated railway, and the time for redemption was extended for six months (f).