A mortgagee may combine in one action claims for foreclosure or sale, for possession of the mortgaged land and for payment of the mortgage money (r).

A mortgagee who has brought an action to recover the mortgage money and for possession of the mortgaged land may also exercise the power of sale. There is nothing inconsistent in the two proceedings. Possession will be needed in the event of a sale being made. The amount realized from the sale must be applied towards payment of the mortgage debt. If enough is realized from the sale, the claim upon the covenant to pay will be satisfied; if the proceeds of the sale are insufficient, the personal judgment for the unsatisfied amount will be needed (s). If, however, a demand or notice is made or given within the meaning of s. 29 of the Mortgages Act, mentioned below, further proceedings in the action will be stayed until after the lapse of the time at or after which, according to such demand or notice, payment of the money is to be made or the power of sale is to be exercised.

On the other hand, a mortgagee cannot, after the usual order nisi for foreclosure and before the foreclosure is made absolute, exercise his power of sale without the leave of the court, because a sale would prejudice the rights given to the mortgagor by the court under the direction in the judgment for reconveyance on payment, but the power of sale is suspended only, not extinguished, and a purchaser in good faith without notice may get a good title (t).

A company being in liquidation, the mortgagees went into possession prior to the issue of the winding-up order. On an application to restrain the mortgagees from selling under their security, objection was taken that the attendance of the mortgagees on the application and the approving of the winding-up order was such a taking part in the winding-up as gave the court jurisdiction to restrain them. This objection being overruled, the liquidator sought to restrain the mortgagees from selling without the sanction of the court on the ground that such sale would be a "proceeding against the company" under s. 22 of the Winding-up Act, R.S.C. 1906, c. 144. It was held that the mortgagees were proceeding rightfully (u).

(r) See chapter 22, Action for Possession, Sec. 211. (s) Shields v. Shields, 1918, 43 O.L.R. 117.

(t) Stevens v. Theatres, [1903] 1 Ch. 857; cf. DeBeck v. Canada Permanent Loan and Savings Co., 1907, 12 B.C.R. 409.

It is also provided by the Mortgages Act, R.S.O. 1914, c. 112, ss. 29 and 30, as follows:

29.-(1) Where, pursuant to any condition or proviso contained in a mortgage, there has been made or given a demand or notice either requiring payment of the money secured by such mortgage, or any part thereof, or declaring an intention to proceed under and exercise the power of sale therein contained, no further proceeding and no action either to enforce such mortgage, or with respect to any clause, covenant or provision therein contained, or to the mortgaged property or any part thereof, shall, until after the lapse of the time at or after which, according to such demand or notice, payment of the money is to be made or the power of sale is to be exercised or proceeded under, be commenced or taken unless and until an order permitting the same has been obtained from a Judge of the County or District Court of the county or district in which the mortgaged property or any part thereof is situate, or from a Judge of the Supreme Court.

(2) The order may be obtained ex parte upon such proof as satisfies the Judge that .it is reasonable and equitable that the proposed action or proceeding should be permitted.

(3) This section shall not apply to proceedings to stay waste or other injury to the mortgaged property.

30.- (1) Where such demand or notice requires payment of all money secured by or under a mortgage the person making such demand or giving such notice shall be bound to accept and receive payment of the same if made as required by the terms of such demand or notice.

(2) If there is a dispute as to the costs payable by the person by or on whose behalf such payment is either made or tendered such costs shall, on three clear days' notice to such person by the person claiming the same, be taxed and ascertained by the Clerk of the

(u) Re British Columbia Tie and Timber Co., 1908, 14 B.C.R. 81.

County or District Court, or by the Local Master of the county or district in which the mortgaged property or any part thereof is situate.

(3) If within ten days after the costs have been so taxed and ascertained, payment of such money and costs is duly made or tendered to the person entitled thereto, or to his solicitor or agent, the same shall be deemed a compliance with such demand or notice.

(4) A mortgagee's costs of and incidental to the exercise of a power of sale, whether under this Part or otherwise, may, without an order, be taxed by one of the taxing officers-of the Supreme Court at Toronto or by a local master having jurisdiction in the county or district in which the mortgaged property or any part of it is situate at the instance of any person interested.

Where a notice of exercising the power of sale was dated 2nd of May and a writ claiming payment under the covenant was issued on 3rd of May, and both notice and writ were served on 3rd of May, it was held that the issue of the writ was a further proceeding within the meaning of the statute,, and an order was made setting aside the service of the writ and staying all proceedings in the action (v).

An action was commenced to enforce payment under the covenant and notice of motion for summary judgment was given. Before the return of the motion the mortgagee served notice of exercising the power of sale unless the mortgage moneys should be paid within thirty days, but subsequently gave notice of abandonment of the notice of sale. It was held that the mortgagee was bound by the notice of sale, and the proceedings in the action were stayed for the thirty days named therein (w).

An advertisement for sale is a proceeding within the meaning of the words "no further proceeding;" and where a mortgagee served a notice stating that unless payment should be made within a month from service the mortgagee would proceed to sell, an injunction was granted restraining the mortgagee from publishing an advertisement of sale until after the expiration of the month (x).

(v) Perry v. Perry, 1884, 10 O.P.R. 275. (w) Lyon v. Ryerson, 1897, 17 O.P.R. 516.

Proceedings will be stayed only "where, pursuant to any condition or proviso contained in a mortgage, there has been made or given a demand or notice either requiring payment of the moneys secured by such mortgage, or any part thereof, or declaring an intention to proceed under and exercise the power of sale"; and the statute does not apply where the power of sale is exercisable without any notice (y).