takes the estate to himself, instead of having it sold, and the proceeds applied. But a subsequent incumbrancer, by paying the original debt, becomes entitled to all the rights of the first mortgagee. In Vermont, the mortgagor is allowed by the decree a definite time (which is sometimes one and two years) to redeem, and in default the equity of redemption is foreclosed. In Massachusetts, Rhode Island and Maine, the mortgagor has three years, after the mortgage is foreclosed, to redeem, and in Connecticut fifteen years, and in New-Hampshire one year to redeem, after entry and seisin by the mortgagee upon breach of the condition, and without foreclosure. The severity of the foreclosure without a sale is *mitigated, by the practice of enlarging the time to *182 redeem from six months to six months, or for shorter periods, according to the equity arising from circumstances.d

(2.) Of selling on foreclosure.

In England, and with us, the practice of selling the land by the party himself, or by an authorized trustee, under a power inserted in the mortgage, has extensively prevailed. (1)

■ Mix v. Hotchkiss, 14 Conn. Rep. 45.

Smith v. Bailey, 1 Shaw's Vermont Rep. 163. N. S. Ibid. 267.

• Lockwood v. Lockwood, 1 Day's Rep. 295. Swift's Dig. vol. ii. 656. 683. Erskine v. Townsend, 2 Mass. Rep. 493. 1 Pick. 356. Wilde, J., Newall v. Wright, 3 Mass. Rep. 155. Statute of Massachusetts, 1st March, 1799, c. 77. Massachusetts Revised Statutes, 1835, part 3. tit. 3. c. 107. Baylies v. Bussen, 5 Greenleaf, 153. Sweet v. Horn, 1 N. H. Rep. 332. Gilman v. Heddin, 5 N. H. Rep. 31. The practice of a strict foreclosure has also been allowed in North Carolina. Spiller v. Spiller, 1 Hayw. 482. In Connecticut, the taking possession of mortgaged premises by the mortgagee, under a decree of foreclosure, was held to be an extinguishment of the debt by the appropriation of the pledge in satisfaction of it. The Derby Bank v. Landon, 3 Conn. Rep. 62. But by the statute in 1833, the foreclosure of a mortgage does not preclude the creditor from recovering, by action, so much of his debt as the mortgage proper shall be insufficient to satisfy, estimated in value at the expiration of the time limited for redemption, and such action, after foreclosure, shall not open it.

Edwards v. Cunliffe, 1 Madd. Rep. 287. Perine v. Dunn, 4 Johns. Ch. Rep. 190. In Missouri, a short and easy mode of foreclosing mortgages is provided, and

(1) The sale is not perfect until an acceptance of the title by the vendee, and a confirmation on the part of the court. Strong v. Dollner, 2 Sandf. (Lar) R. 444. Brown v. Frost, 10 Paige R. 247. Until the purchaser is entitled to possession, by confirmation of the sale, and production VOL. IV. 13

The course in Ireland, as well as here, is to decree a sale instead of a foreclosure; and if the sale produces more than the debt, the surplus goes to the mortgagor, and if less, the mortgagee has his remedy for the difference. This course was recommended by Lord Erskine, as more analogous to the relative situation of lender and borrower, and it was the English practice a century ago, in cases where the security was defective. If the mortgagee proceeds by bill for the technical foreclosure, the estate becomes his property, in the character of a purchaser; and the general understanding formerly was, that by taking the pledge to himself, he took it in satisfaction of the debt. But, according to the case of Took v. Hartley,b if the mortgagee sells the estate, after the foreclosure, fairly, and for the best price, he may proceed at law against the mortgagor, upon his bond, for the difference; though he cannot have recourse at law for deficiency, so long as he keeps the estate, because the value of it is not ascertained, and the mortgagee cannot say what proportion of the debt remains due. It has likewise been repeatedly held, that an action at law by the mortgagee, after foreclosure, for the balance of the debt due him, opens it, and lets in the mort

to be commenced by petition to the circuit court, and by process of summons. Revised Statutes of Missouri, 1835, p. 409. And in New-Hampshire the mortgagee, or the administrator, may foreclose a mortgage by peaceable entry, and a possession of one year, without process. Gibson v. Bailey, 9 N. H. Rep. 168. This is under the statute of 1829, and after a possession of one year, according to the terms of the act, without tender of payment or demand of an account on the part of the mortgagor, the mortgage is foreclosed. This statute remains good, notwithstanding chancery powers respecting the redemption and foreclosure of mortgages, according to established principles of chancery, were conferred on their superior court by the act of July 4, 1834. Wendell v. N. H. Bank, 9 N. H. Rep. 404.

In Schnell v. Schroder, 1 Bailey's Eq. Rep. 334, it was considered that the purchase of the equity of redemption by the mortgagee, either directly from the mortgagor or on execution under a junior judgment, extinguished the mortgage debt.

b 2 Bro. 125. Dickens, 785. S. C.

of master's deed to the occupant, the owner of equity of redemption is entitled to the rents. Clason v. Corley, 5 Sandf. S. C. R. 447.

The foreclosure of the mortgage, and the sale of the mortgaged premises, must take place according to the statute in force at the time of making the mortgage-at least so far as the substantial rights of the mortgagee would otherwise be injuriously affected. Broson v. Kinzie, 1 Howard's (U. S.) R. 811. Sheets v. Peabody, 7 Elackford's R. 613. Id. 154.

*183

gagor to redeem. There has been some embarrassment and conflict of opinion *manifested in the cases, on the point whether the mortgagee had his remedy at law after a foreclosure, and without a sale of the estate. The better opinion is, that after a foreclosure, with or without a subsequent sale, the mortgagee may sue at law for the deficiency, to be ascertained in the one case by the proceeds of the sale, and in the other by an estimate and proof of the real value of the pledge at the time of the foreclosure. Whether the action at law will open the foreclosure in equity, and let in the equity of redemption, is an unsettled question. The weight of English authority would seem to be, that it opens the foreclosure, unless the estate has, in the mean time, been sold by the mortgagee; and then it is admitted that the power of conveyance is gone, for it would be inequitable to open the foreclosure against the purchaser. But in Hatch v. White,c the reasoning of the court was against the conclusion that the suit at law opened the foreclosure in any case; and this was also the decision in Lansing v. Goelet.d

The general rule is, that the mortgagee may exercise all his rights at the same time, and pursue his remedy in equity upon the mortgage, and his remedy at law upon the bond or

• Dashwood v. Blythway, 1 Eq. Cas. Abr. 317. pl. 3. Mosely, 196. S. C. Perry v. Barker, 13 Vesey, 198.

b Lord Thurlow's opinion, as represented by Sir Samuel Romilly, and by Lord Eldon, in Perry v. Barker, 8 Vesey, 527. Hatch v. White, 2 Gallis. Rep. 152. Amory v. Fairbanks, 3 Mass. Rep. 562. Globe Ins. Company v. Lansing, 5 Cowen's Rep. 380. Omaly v. Swan, 3 Mason's Rep. 474. Lansing v. Goelet, 9 Cowen's Rep. 346. Lovell v. Leland, 3 Vermont Rep. 581. Cullum v. Emanuel, 1 Ala, Rep. N. S. 23. In Davis v. Battine, 2 Russ. & Mylne, 76, it was declared, that though the mortgagee takes the debtor on ca. sa., it does not extinguish his lien on the land.

2 Gallis. Rep. 152.

9 Cowen's Rep. 346. In Lovell v. Leland, 3 Vermont Rep. 581, it was deemed to be reasonable, though not absolutely decided, that if the mortgagee, after foreclosure, sues at law to recover the difference between the value of the estate and the sum due, the foreclosure should be opened, and that the mortgagor, on being sued, might file his bill to redeem, on paying the full amount of debt and costs, and that the mortgagee, when he brings the suit, should have it in his power to reconvey the estate. By the Mass. Revised Statutes of 1835, part 3. tit. 3. c. 107, if the mortgagee, after foreclosure, sues for the balance of his debt, after deducting the ascertained value of the land, a recovery in such suit will open the foreclosure, and allow the mortgagor to file his bill within a year thereafter to redeem.

covenant accompanying it, concurrently.

There are

*184 *difficulties attending the sale of the equity of redemption by the mortgagee, on execution at law, and it is accompanied with danger to the rights of the mortgagor; and these difficulties were suggested in the case of Tice v. Annin,b and that the proper remedy was to prohibit the mortgagee from selling at law the equity of redemption.c

• Booth v. Booth, 2 Atk. 343. Burnell v. Martin, Doug. Rep. 417. Schoole v. Sall, 1 Sch. & Lef. 176. Dunkley v. Van Buren, 3 Johns. Ch. Rep. 330. Hatfield v. Kennedy, 1 Bay's Rep. 501. Hughes v. Edwards, 9 Wheat. Rep. 489. Cullum v. Emanuel, 1 Ala. Rep. N. S. 23. If the mortgagee proceeds to judgment and execution at law upon his bond, and sells the land mortgaged to secure the bond debt, he sells only the equity of redemption, and he may afterwards maintain ejectment against the purchaser of the premises, in order to enforce payment of the balance. Jackson v. Hull, 10 Johns. Rep. 481. M'Call v. Lenox, 9 Serg. & Rawle, 307, 308. 314. This supposes the case, that the purchaser, at the sheriff's sale, knew of the existing mortgage, and purchased subject to it. But the rule is not uniform on the subject. In Pennsylvania it has been frequently held, that the purchaser will hold the land discharged of the lien of the mortgage. M'Graw v. M'Lanahan, 1 Penn, Rep. 44. Pierce v. Potter, 7 Watts, 475. Berger v. Hiester,

6 Wharton, 210.

b 2 Johns. Ch. Rep. 125. In this case it was suggested, that if the mortgagee should elect to proceed against his debtor at law, after the equity of redemption had been sold under a fi. fa., and attempt to recover his debt out of other property of the mortgagor, equity would either stay such proceeding, or compel him, upon payment of his debt, to assign over his debt and security to his debtor, to enable the latter to indemnify himself out of the mortgaged premises in the possession of the purchaser. In Cullum v. Emanuel, 1 Ala. N. S. 23, it was held, that ordinarily the sale of the equity of redemption by the mortgagee does not extinguish the mortgage, and the purchaser acquires only the right to complete his purchase by the payment of the mortgage debt. In Cassilly v. Rhodes, 12 Ohio Rep. 88, it was held, that when mortgaged premises are sold under a decree of foreclosure, the emblements of a lessee under the mortgagor did not pass to the purchaser. This decision proceeded on the system of appraisements founded on judicial sale in Ohio. Under the general law, both in England and in this country, the mortgagor is not entitled to emblements as against the mortgagee or purchaser on foreclosure. (1)

• The New-York Revised Statutes, vol. ii. 368, sec. 31, 32, have carried the suggestion into effect, and prohibited the sale at law of the mortgagor's equity by the mortgagee, on a judgment for the debt secured by the mortgage. See, also, Delaplaine v. Hitchcock, 6 Hill N. Y. Rep. 1. 4. S. P. In Massachusetts, North Carolina and Kentucky, likewise, similar embarrassments have been felt, and the mort

(1) The purchaser of mortgaged premises, sold pursuant to a statute foreclosure, is entitled to crops sown by the mortgagor, and growing on the land at the time of the sale. Shepard v. Philbrick, 2 Denio's R. 174.

(3.) Parties to a bill of foreclosure.

*185

When the mortgagee proceeds by bill to foreclosure, he must make all incumbrancers, existing at the filing of the bill, (and which of course includes the junior, as well as the prior incumbrancers,) parties, in order to prevent a multiplicity of suits, and that the proceeds of the mortgaged estate may be duly distributed; and the incumbrancers who are not parties will not be bound by the decree. The reason of the rule requiring all the incumbrancers, subsequent as well as prior to the plaintiff, to be made parties, is to give security and stability to the purchaser's title; for he takes a title only as against the parties to the suit; and it cannot and ought not to be set up against the subsisting equity of those incumbrancers who are not parties. If a surplus

gagee cannot, by execution at law, sell the equity of redemption in discharge of a debt secured by the mortgage. Atkins v. Sawyer, 1 Pick. Rep. 351. Camp v. Coxe, 1 Dev. & Bat. 52. Goring v. Shreve, 7 Dana's Rep. 64. The New-York Revised Statutes have, in other respects, materially changed the established practice on this subject. It is now declared, that while a bill of foreclosure is pending in chancery, no proceedings shall be had at law for the recovery of the debt, without the authority of the court of chancery; and, on the other hand, if a judgment has been obtained at law for the mortgaged debt, or any part of it, no proceedings are to be had in chancery, unless an execution has been returned unsatisfied, in whole or in part, and it be stated in the return that the defendant had no property to satisfy it except the mortgaged premises. New-York Revised Statutes, vol. ii. 191, sec. 153. 156. Williamson v. Champlin, 8 Paige Rep. 70. Shufelt v. Shufelt, 9 ibid. 137. The statute goes on and declares, that if the mortgaged premises should prove insufficient to satisfy the debt, the court of chancery has power to direct the payment by the mortgagor of the unsatisfied balance, and to enforce it by execution against the other property or the person of the debtor. Ibid. sec. 152. As the action of ejectment upon a mortgage is abolished, (ibid. 312. sec. 57,) the jurisdiction at law over the debt, as well as over the pledge, would appear by these provisions to be essentially taken away and transferred to chancery. In Mississippi, where there is no such statute, the remedy of the mortgagee for his unsatisfied balance of the debt, after a foreclosure and sale under his mortgage, is at law. Stark v. Mercer, 3 Howard, 377.

Godfrey v. Chadwell, 2 Vern. 601. Morret v. Westerne, ibid. 663. Hobart v. Abbott, 2 P. Wms. 643. Fell v. Brown, 2 Bro. 276. Bishop of Winchester v. Beaver, 3 Ves. 314. Sherman v. Cox, 3 Ch. Rep. 46. Haines v. Beach, 3 Johns. Ch. Rep. 459. Lyon v. Sandford, 5 Conn. Rep. 544. Renwick v. Macomb, 1 Hopkins, 277. The English practice is to settle by decree the order of payment, according to priorities; and the decree is, in detail, that the second incumbrancer shall redeem the first, the third, the second, and so on. See Mondey v. Mondey, 1 Ves. & Beame, 223, and 3 Merivale, 216, note.

The N. Y. Revised Statutes, vol. ii. 192, sec. 158, declare, that the deed to the