sion.[c] An equitable mortgagee may have a receiver, but he cannot if the first mortgagee is in possession; he must redeem him.(1) If, however, the mortgagee in possession will not swear in his examination, that he believes something is due to him, the court will appoint a receiver.(2) If the prior mortgagee is not in possession, the receiver is granted without prejudice to his taking possession.(1) The question of mismanagement of an estate or misapplication of the rents cannot be tried upon affidavit in support of a motion to take the possession from the mortgagee.(1)

A mortgagee is entitled to an injunction to restrain a

(1) Burney v. Sewell, 1 J. & W. 647.

(2) Quarrell v. Beckford, 14 Ves. 177.

[c] By the ancient and strict rules of the common law, a mortgagor is not, unless there be some special agreement to that effect, entitled, of right, to the possession of the land mortgaged; but he holds it solely at the will and by the permission of the mortgagee, who may, at any time, by an ejectment, without giving any prior notice recover the same against him or his tenants. 2 Story's Eq. Jur. 286. The doctrine of equity, however, is, that the mortgage is a mere security for the debt, and only a chattel interest, and that, until a decree of foreclosure, the mortgagor continues the real owner of the fee. The equity of redemption is considered to be the real and beneficial estate, tantamount to the fee at law. It is accordingly held to be descendible by inheritance, devisable by will, alienable by deed, vendible on an execution at law, and chargeable with the dower of the wife of the mortgagor. The courts of law have, also, by a gradual and almost insensible progress, adopted these equitable views of the subject; and except as against the mortgagee, the mortgagor, while in possession and before foreclosure, is regarded as the real owner; whereas the mortgagee notwithstanding the form of the conveyance, has only a chattel interest, and his mortgage is a mere security for the debt. 4 Kent's Comm. 159-161; Wilson v. Troup, 2 Cowen, 195; Hawkins v. King, 2 A. K. Marsh. 109; Barnes v. Lee, 1 Bibb, 526; Demarest v. Wynkoop, 3 Johns. Ch. Rep. 129; Jackson v. Willard, 4 Johns. 41; Runyan v. Mersereau, 11 Johns. 534; Huntington v. Smith, 4 Conn. 235; Willington v. Gale, 7 Mass. 138; McCall v. Lenox, 9 Serg. & R. 302; Ford v. Philpot, 5 Har. & Johns. 312; Eaton v. Whiting, 3 Pick. 484; Blaney v. Bearce, 2 Greenl. 132; Clark v. Beach, 6 Conn. 142; Waters v. Stewart, 1 Caines's Cas. in Er. 47; Hobart v. Frisbie, 5 Conn. 592; Ingersoll v. Sawyer, 2 Pick. 276; Carpenter v. First Parish in Sutton, 7 Pick. 49; Collins v. Gibson, 5 Vern. 243; McWhorter v. Huling, 3 Dana, 349; Hunter v. Hunter, 1 Walk. 194; Garro v. Thompson, 7 Watts, 416; Blanchard v. Colburn, 16 Mass. 345; Rickert v. Madeira, 1 Rawle, 325; Buck v. Sanders, 1 Dana, 188; Astor v. Miller, 2 Paige, 68.

As a consequence of these principles, it seems, that if the whole amount secured by the mortgage has become due, and the mortgaged premises are not of sufficient value to pay the debt and costs, the Court, upon the filing of the bill, may, upon due notice to the defendant, appoint a receiver of the rents and profits of the premises, or otherwise secure such rents and profits, for the satisfaction of the debt and costs. But where the mortgagee has neglected to take a specific pledge of the rents and profits of the mortga ged premises, for the security of his debt before it becomes due, he has no equitable right to the rents and profits, in the meantime. Bank of Ogdensburgh v. Arnold, 5 Paige, 38. But, to entitle the complainant, in a foreclosure suit, to a receiver of the rents of the mortgaged premises, he must not only show, that the party, who is personally liable to him for the payment of the mortgage debt, is irresponsible, but he must also show, that the mortgaged premises, upon a sale thereof, will not probably produce sufficient to pay the debt and costs. Bancker v. Hitchcock, In Chan. N. Y. Jan. 22, 1842, Barb. Abstr. of Dec. in Chan. 88. See, also, Frelinghuysen v. Colden, 4 Paige, 204; Drought v. Perceval, 1 Moll. 26, note, (12 Eng. Ch. Rep. 16,17.)

In a clear case of equitable mortgage, also, the Court will appoint a receiver, if, by delay in doing so, the mortgagee will be placed in a worse situation. Aberdein v. Chitty, 3 You. & Coll. 379.

*mortgagor in possession from cutting down timber[a] if the land without it is a scanty security, and the injunction may be extended to cutting down underwood contrary to the usual course of husbandry, but not to underwood generally, even though the mortgagor is insolvent,(1) but if the security is sufficient without the timber, the injunction will be refused. (2) If the mortgage security includes an advowson, the mortgagee instead of filing a bill of foreclosure, should file a bill for a sale of the advowson, as a mortgagee is bound in the event of the benefice becoming vacant to accept of a mortgagor's nominee.(3)

If in a suit by a mortgagor for redemption against successive mortgagees, the first mortgagee does not appear at the hearing, and a decree nisi is taken against him, and the mortgagor does not serve him with a subpœna to show cause, any of the defendants (the subsequent mortgagees) are at liberty to serve the first mortgagee with the subpoena to show cause and make the decree absolute against him.(4)

A bill of foreclosure cannot be set down to be heard as a short cause, unless by consent.(5) The decree directs a reference to the Master, to take an account of principal and interest due on the mortgage, and to tax the mortgagee's costs, and directs that if the same are paid by the mortgagor, at such time and place as the Master shall fix, the mortgagee is to reconvey the premises, but orders, in default of payment at such time and place, that the mortgagor be absolutely foreclosed from all equity of redemption in the mortgaged premises.[6]

(1) Humphreys v. Harrison, 1 J. & W. 581.

(2) Hippesley v. Spencer, 5 Madd. 422.

(3) Mackensie v. Robinson, 3 Atk. 559.

(4) Cottingham v. Lord Shrewsbury, 5 Sim. 395. (5) Rashleigh v. Dayman, 2 Madd. 147,

[a] An injunction lies against a mortgagor, in possession of the mortgaged premises to stay waste, even though no bill of foreclosure have been filed, on the ground that the Court will not suffer the mortgagor to prejudice the security. Brady v. Waldron, 2 Johns. Ch. Rep. 148; Downing v. Palmateer, 1 Monroe, 65. But a mortgagor, who has sold his equity of redemption, without taking any security, as indemnity against his bond, cannot have an injunction to stay waste, against his vendee, on the ground that he will be answerable, for what the land may fail, to the mortgagee. Brumley v. Fanning, 1 Johns. Ch. Rep. 501.

[b] The course which is pursued in many of the states of the union is, primarily and ordinarily, to direct a sale of the mortgaged premises, giving the debtor any surplus after discharging the debt secured by the mortgage, or distributing such surplus, according to the order of priority, among the subsequent incumbrancers-and this, without any dis

Eng. Chan. Reps. vii. 463.

*If a first mortgagee files a bill against the second mortgagee and the mortgagor, the decree gives the second mortgagee six months after the date of the Master's report to redeem the first mortgagee, and in default forecloses such second mortgagee; in the event of such foreclosure, the decree refers it back to the Master to compute subsequent interest, and to tax the subsequent costs, and gives the mortgagor three months after the subsequent report, to redeem, and in default, forecloses him also, whereby the estate becomes absolute in the plaintiff, the first mortgagee. The decree also directs that, if the second mortgagee redeems the plaintiff, that it shall be referred to the Master to take an account of principal and interest due to the said second mortgagee, and to tax him his costs, and to compute interest on what he has paid to the plaintiff for principal, interest, and costs, and gives the mortgagor three months, after the Master's report to

tinction, whether there is a power to sell contained in the mortgage or not. This is the practice in New York, Maryland, Virginia, South Carolina, Tennessee, Kentucky, Indiana, Alabama, and probably in several other States. But in the New England States, the practice of a strict foreclosure would seem to prevail, and the creditor takes the estate to himself, instead of having it sold, and the proceeds applied. In Vermont, the mortgagor is allowed by the decree, a definitive time, (which is sometimes one and two years,) to redeem, and in default, the equity of redemption is foreclosed. Smith v. Bailey, 10 Vermont, 163; Austin v. Adm'r of Jackson, 10 Vermont, 267. In Massachusetts, Rhode Island, and Maine, the mortgagor has three years, and in Connecticut, fifteen years, in New Hampshire, one year, to redeem, after entry and seisin by the mortgagee, upon breach of the condition. The practice of a strict foreclosure has also been allowed in North Carolina. 2 Hoff. Ch. Prac. 133; Nelson v. Carrington, 4 Munf. 332; Downing v. Palmateer, 1 Monroe, 66; Humes v. Shelby, 1 Tenu. 79. Hurd v. James, 1 Tenn. 201; Rodgers v. Jones, 1 McCord's Ch. Rep. 221; Paunell v. Farmers' Bank, 7 Har. & Johns. 202; David v. Grahame, 2 Har. & Gill, 94; Lockwood v. Lock. wood, 1 Day, 295; Lyon v. Sanford, 5 Conn. 544; Abbe v. Goodwin, 7 Conn. 327; 2 Swift's Dig. 656. 683; Erskine v. Townsend, 2 Mass. 493; Baylies v. Bussen, 5 Greenl. 153; Swett v. Horn, 1 New Hamp. 332; Spiller v. Spiller, 1 Hayw. 482; 4 Kent's Comm. 181; 2 Story's Eq. Jur. 293, 294; Singleton v. Gayle, 8 Port. 277; Wilkins v. Wilkins, 4 Port. 245; Hunt v. Lewin, 4 Stew. & Port. 133.

In Ohio, the mortgaged premises must, upon a bill of foreclosure, be valued, agreeably to the provisions of the law regulating judgments and executions, and the Court will direct a sale, and not a foreclosure, if two-thirds of the valuation amount to more than the debt. Anonymous, 1 Hamm. 235; Higgins v. West, 5 Hamm. 554. This viluation must be of the entire estate, without deducting the incumbrances. Baird v. Kirtland, 8 Ohio, 24.

Even, however, where the English practice of strict foreclosure does not exist, and a sale of the mortgaged premises, in satisfaction of the mortgage, has been substituted, there are cases, in which, in order to perfect the title, a bill for a strict foreclosure, though not exactly in the sense in which those terms are used in England, may be adopted. Thus, a purchaser, under a statute foreclosure, may file a bill to forclose the equity of redemption of a judgment creditor, or subsequent mortgagee; and, in doing so, he is not bound to make the mortgagor, or any other person whose equity of redemption is already barred, a party to the suit. And, in such suit, the Court may order a sale of the premises, or may decree a strict foreclosure against the creditor, if he neglect to redeem. Benedict v. Gilman, 4 Paige, 58. 43

VOL. I.

be made thereon, to redeem, and in default forecloses him in favour of such second mortgagee.

The order in such a suit is usually framed as follows: It directs a reference to the Master to take an account of what is due to the plaintiff for principal and interest on his mortgage security in the pleadings mentioned, and to tax him his costs of this suit: and upon the said defendant (the second mortgagee) his paying to the plaintiff what the said Master shall certify to be due to him for such principal, interest, and costs, within six months after the said Master shall have made his report, at such time and place as the said Master shall appoint, it is ordered that the said plaintiff do convey the said mortgaged premises, free from all incumbrances done by him, or any claiming by, from, or under him, and deliver, upon oath all deeds and writings in his custody or power relating thereto, to the said defendant (the second mortgagee) as [534] he should appoint, but *in default of the said defendant (the second mortgagee) his paying unto the plaintiff what shall be reported due to him for such principal, interest, and costs as aforesaid, by the time aforesaid, the said defendant (second mortgagee) is from thenceforth to stand absolutely debarred and foreclosed of and from all right, title, interest and equity of redemption of, in and to the said mortgaged premises, and in case of such foreclosure, it is ordered that it be referred to the said Master to compute the plaintiff his subsequent interest, and to tax his subsequent costs; and upon the mortgagor his paying unto the plaintiff what the said Master shall certify to be due to him for principal, interest, and costs, within three months after the said Master shall have made his subsequent report, at such time and place as the said Master shall appoint, it is ordered that the said plaintiff do reconvey the said mortgaged premises free, &c. &c., but in default of the said mortgagor paying unto the said plaintiff, &c. &c., the said mortgagor is to be foreclosed, &c. as above: but in case the said second mortgagee shall redeem the plaintiff as aforesaid, it is ordered that it be referred to the said Master to compute interest on what he shall so pay to the plaintiff; and it is also ordered that the said Master do take an account of what is due to the said second mortgagee for principal, &c.; and, upon the defendant (mortgagor) paying the amount of his principal,

and interest, and costs, and what he has paid the plaintiff within three months after the Master, &c. (as before), it is ordered that the said second mortgagee do convey, &c., to mortgagor, &c., but in default to be foreclosed as before.

If a second mortgagee files a bill against the mortgagor and the first and third mortgagees, the decree is a reference to take an account of principal, and interest, and to tax costs, due to the first mortgagee, and gives the plaintiff six months after the date of the [ *535 ] report, to redeem the first mortgagee, and in default of the plaintiff so doing, dismisses the bill with costs. And the decree directs, in the event of the plaintiff redeeming, a reference to take an account of principal, interest, and costs, on his mortgage, and to compute interest on what the plaintiff paid to the first mortgagee; and upon payment by the third mortgagee or the mortgagor of such principal, interest, and costs, and the amount with interest, paid to the first mortgagee within three months after the report, it directs the plaintiff to convey to the one redeeming him; but in default, the decree directs a foreclosure in favour of the plaintiff the second mortgagee; and, in case the third mortgagee redeems, there is a reference to take an account of principal and interest, and to tax costs, and to compute interest on his payments, and in default of the mortgagor redeeming within three months, directs the estate to be foreclosed. By this mode of drawing the order if the mortgagor redeems the second mortgagee, the third mortgagee must file a new bill.

If the mortgagee is in possession, the decree contains a direction for the Master to take an account of the rents and profits of the mortgaged premises received by the plaintiff, or by any other person or persons by his order or for his use, or which he, without his wilful default, might have received thereout, and orders that what shall be found due on such account of rents and profits be deducted out of what shall be found due to the said plaintiff for principal, interest and cost as aforesaid.[a]

A mortgagee by entering into possession, by his own

[a] A mortgagee in possession must account for the rents and profits received by him, except such as have arisen exclusively from his own improvements. Moore v. Cable, 1 Johns. Ch. Rep. 385.