In England prior to the Chancery Improvement Act, 1852, the court might decree sale instead of foreclosure in certain cases, as in the case of a mortgage of a dry reversion, or if the security were scanty, or if the bill, praying sale, were taken pro confesso. In the case of an infant heir or devisee of the mortgagor, there would have been, with the mortgagee's consent, an enquiry whether a sale or foreclosure would be more beneficial for the infant, and if it appeared clearly that a sale would be for the benefit of the infant, sale would be decreed (t). Further jurisdiction to direct a sale instead of foreclosure in a foreclosure action was given to the court by s. 48 of the Chancery Improvement Act, 1852 (u), but this section was repealed and larger powers were conferred upon the court by the Conveyancing A ct, 1881.

Under the present practice a mortgagee is usually entitled to judgment or sale at his option (v). He may now combine in one action his claims for foreclosure or sale of the mortgaged property and for payment of the mortgage debt by any party personally liable therefor and for possession of the mortgaged property (w).

(s) Dyson v. Morris, 1842, 1 Hare 413.

(t) See the notes to Thornbrough v. Baker in 2 W. & T.L.C. Eq. at pp. 62, 63, as to the statements in the text and as to the present English practice. Cf. as to the early practice in Upper Canada, Meyers v. Harrison, 1850, 1 Gr. 449, at p. 455.

(u) 15 & 16 V. c. 86, s. 48, adopted in Upper Canada in the general orders in Chancery of 1853. The power thus given to the Court of Chancery in Upper Canada has been superseded by the larger powers conferred by the present rules hereinafter referred to.

(v) For the exceptional cases in which the mortgagee is confined to one of these remedies, see Sec. 231, supra.

(w) See Sec. 232, supra.

In Ontario the form of endorsement of a writ of summons embodying the claims for sale, payment and possession is as follows (x):

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 sale, [where desired add and payment to the plaintiff by the defendant personally of any balance]

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).

(If immediate possession is desired add), And 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 with 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 sold, 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.

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

Not only may sale be decreed in an action for sale, but in a foreclosure action judgment may be entered for sale at the instance either of a defendant by writ or of a defendant added in the master's office.

It is provided in Ontario by rules 461 and 462 as follows:

461. Where a defendant by writ in an action for foreclosure desires a sale, but does not otherwise desire to defend the action, he shall, within the time allowed for appearance, file and serve a memorandum, entitled in the action, to the following effect: "I desire a sale of the mortgaged premises instead of foreclosure," and shall pay into court the sum of $80 to meet the expenses of the sale, and thereupon the judgment shall be entered for sale.

(x) As to the "special endorsement" of the writ of summons in Ontario, see Sec. 232, supra.

462. A person made a party in the master's office and desiring a sale shall make a similar deposit before the master's report is settled, and obtain an order which may be issue on praecipe directing sale instead of foreclosure, and thereupon all subsequent proceedings shall be had and taken as if the judgment had been in the first instance for sale.

A larger deposit than $80 cannot be ordered (y), but it is provided by rule 464 as follows:

464.- (1) If the plaintiff prefers that the sale be conducted by any adult defendant desiring the sale, he may so elect, and he shall thereupon notify the defendant of such election and the defendant making the deposit shall be entitled to a return thereof.

(2) In other cases the master shall deal with the deposit in making his report.

The former practice in Ontario was that if an infant was defendant in a foreclosure action an order of reference would be made to determine whether foreclosure or sale would be more to his advantage and if it were found that a sale would be more advantageous a sale would be directed without requiring any deposit (z).

It is now provided by rule 463 as follows:

463. Where there are infant defendants the official guardian may require the judgment to be for sale without making any deposit.

In a foreclosure action the plaintiff is usually entitled to judgment for foreclosure unless a defendant by writ or added in the master's office asks for sale and (except in the case of an infant defendant) makes a deposit for the costs of the sale.(a).