NOTES.

(1) Costs.

For the rule that a mortgagee is entitled to costs, and the exception to it. See Beames on Costs, 39. 45.

If any costs have been incurred by the mortagee in addition to those of the suit, they should be particularly mentioned. See Knowles v. Chapman, No. VI. post. Hill v. Pryce, No. VII. post. Sambroke v. Hanbury, No. IX. post. Dalton v. Wilson, No. X. post.

(2) Time for Redemption.

The time is to be computed by calendar months, not by lunar Harr. vol. ii. p. 101. ed. 1767.

ones.

This time will be enlarged on motion. See Order for enlarging Time, No. II. post.

Otherwise on a bill for redemption. See Decree for Redemption, No. IV. post.

(3) See Direction for Payment, Usual Directions, No. VIII. ante.

(4) Foreclosure.

Formerly, if the money was not paid by the time appointed by the Master, the mortgagor was absolutely foreclosed; but now, upon default, a further order is necessary. Sheriff v. Sparks, 1 West, 130. And see Final Order for Foreclosure, No. III. post.

Possession.

The Court does not direct the mortgagor to deliver

up the posses

sion of the mortgaged premises to the plaintiff, but leaves the plain-tiff to his ejectment. See Sutton v. Stone, 2 Atk. 101.

Otherwise in case of redemption, No. IV. post.

Where the mortgagor is in possession, he is not in the situation of tenant at all; or at all events, he is not more than tenant at sufferance; but in a peculiar character, and liable to be treated as tenant or trespasser, at the option of the mortgagee.

Doe v. Maisey, 8 B.

& C. 767. And see Partridge v. Beer, 5 B. & A. 605, note. Hall

v. Doe, Ib. 687. Coote on Mortgages, 326.

He is not therefore entitled to notice to quit. Doe v. Maisey, supra. Keech v. Hall, Dougl. 22.

Nor to emblements. Keech v. Hall, supra. lb. 283. Birch v. Wright, 1 T. R. 383.

Moss v. Gallimore,

Otherwise where he is tenant at will to the mortgagee by express agreement. Ex parte Temple, 1 G. & J. 216.

So where the premises are in the possession of a tenant under a lease subsequent to the mortgage, the tenant is not entitled to notice to quit. Keech v. Hall, Dougl. 21. Whether in that case the tenant is entitled to emblements, Q. S. C. 23.

Where, at the date of the mortgage, the premises are in the possession of a tenant from year to year, the tenant is entitled to notice to quit. See Birch v. Wright, 1 T. R. 380.

Where the premises are in the possession of a tenant under a lease prior to the mortgage, it has been held that the mortgagee may recover in ejectment, giving notice to the tenant that he does not mean to disturb his possession, but only requires the rent to be paid to him. See White v. Hawkins, Dougl. 23, note. Moss v. Gallimore, Dougl. 282. But see what is said by Lord Mansfield of this practice. Moss v. Gallimore, supra.

Past Rents.

Mead v.

Where the mortgagor has been permitted to remain in possession, the mortgagee is not entitled to an account of past rents and profits. Higgins v. York Buildings Company, 2 Atk. 107. Lord Orrery, 3 Atk. 244. Colman v. Duke of St. Albans, 3 Ves. 32. Drummond v. Duke of St. Albans, 5 Ves. 438. Ex parte Wilson, 2 V. & B. 252. S. C. 1 Rose, 444.

So the mortgagee of a term not having taken possession during the term, is not entitled to rents and profits accrued during the term, though in the hands of a receiver. Gresley v. Adderley,

1 Swan. 573.

Where the mortgaged premises were in the possession of a tenant under a lease prior to the mortgage, the mortgagee was held entitled to arrears of rent due from the tenant at the time of notice of the mortgage, as well as to subsequent rent. Moss v. Gallimore, Dougl. 279. And see Birch v. Wright, 1 T. R. 378.

But the rents having been paid over to the assignees of the mortgagor (who had become bankrupt) notwithstanding notice, could not be recovered back. Ex parte Wilson, supra.

Where the first mortgagee is in possession, a second mortgagee is entitled to rents paid over by the first mortgagee to the mortgagor after notice of the second mortgage. Berney v. Sewell, 1 J. & W. 650. And see Parker v. Calcraft, 6 Mad. 11.

Whether an equitable mortgagee is entitled to past rents. Q. Ex parte Bignold, 2 G. & J. 273. Ex parte Alexander, 2 G. & J. 275. And see Equitable Mortgage, No. XVI. post.

No. II.

ORDER FOR ENLARGING TIME.

[The Master had appointed the 23d of December for the payment of the principal, interest, and costs.]

This Court doth order, that upon the said defendant's paying unto the plaintiff, on or before the 23d day of December, inst. the sum of £, reported due to the plaintiff for interest and costs on his said mortgage by the said Master's report, the time for the defendant's redeeming the said mortgaged premises be enlarged for six months. And upon such payment it is ordered, that it be referred back to the said Master to compute the plaintiff his subsequent interest and tax him his subsequent costs, and also the costs of this application, and to appoint a new time and place for payment of what shall be found due to the plaintiff in respect thereof. But in default of the defendant's paying unto the plaintiff the said sum of £ by the time aforesaid, the said defendant is to stand absolutely foreclosed. Edwards v. Cunliffe, V. C. 10th December, 1814. Reg. Lib. A. 1814. fol. 115. S. C. 1 Mad. 287.

For an order to enlarge time on bill of foreclosure. See Hand's Pract. 191.

NOTE.;

Order for enlarging Time.

It seems that formerly the time might be enlarged, without imposing any terms on the defendant. See Ismoord v. Claypool, 1 Ch. Rep. 262. Afterwards it became the practice to enlarge the time upon computing subsequent interest upon the whole sum found due for principal, interest, and costs. See Bickham v. Cross, 2 Ves. 471. Bennet v. Edwards, 2 Vern. 392.

But now, the ordinary terms upon which the Court enlarges the time are the payment of the sum reported due for interest and costs,

and carrying on the account of subsequent interest and costs, including the costs of the application. Edwards v. Cunliffe, supra. And see Monkhouse v. Corporation of Bedford, 17 Ves. 382.

On these terms the time will be enlarged for six months, and again for three months. Monkhouse v. Corporation of Bedford, supra. In the Exchequer the time may be enlarged, but not as of course. Quarles v. Knight, 8 Price, 630.

In Edwards v. Cunliffe, supra. a fourth order was made for enlarging the time, though the third was directed to be peremptory. The decree being appealed from, the time will be enlarged on terms. Monkhouse v. Corporation of Bedford, supra.

So, pending exceptions to the report, the time will be enlarged, until the exceptions are disposed of. Renvoize v. Cooper, 1 S. & S. 365.

And the time having been suffered to elapse pending the exceptions, the Court refused to make a final order for foreclosure, and enlarged the time. S. C.

No. III.

FINAL ORDER FOR FORECLOSURE.

Upon opening of the matter this present day unto this Court by Mr. J. being of the plaintiff's counsel, it was alleged that by the order made on the hearing of this cause, it was referred to Mr. E. one &c. to take an account &c. pursuant whereunto the said Master on the 5th of March last made his report, and thereby certified the sum of £

to be due

to the plaintiff for principal, interest, and costs, on the said mortgage, which he appointed to be paid on the 5th day of September last between the hours of ten and twelve of the clock in the forenoon, at the Chapel of the Rolls, in Chancery Lane, at which time and place W. W. being duly authorised by the plaintiff, attended to have received the said money, but neither the plaintiff nor any person on his behalf did then attend to pay, or have since paid or tendered the same, as by the affidavit of the said W. W. now read appears; and therefore it was prayed that the said defendant may now be and stand absolutely debarred and foreclosed, of and from all

right, title, interest, equity, and benefit of redemption, of, in and to the said mortgaged premises; which, upon reading the decree, the Master's report, and the order for confirming the same, this Court held reasonable; and doth order the same accordingly. Wyndham v. Skylling, M. R. 3d November, 1747. Reg. Lib. B. 1747. fol. 9.

For like orders. See Hand's Pract. 193. 195.

NOTE.

Final Order.

That a decree of foreclosure cannot be pleaded until a final order has been obtained. See Interlocutory Decrees, ante.

That a new estate is acquired by the final order which will not pass by a previous will. See Thomas v. Grant, 4 Mad. 438.

A release of the equity of redemption after decree, is equivalent to a final order. Reynoldson v. Perkins, Ambl. 564.

No. IV.

DECREE FOR REDEMPTION AGAINST MORTGAGEE IN POSSESSION.

[Inter alia] His Lordship doth think fit and so order and decree, that it be referred to Mr. B. one &c. to take an account of what is due to the defendant Robinson for principal and interest on his said mortgage, and to tax him his costs of this suit. And the said Master is also to take an account of the rents and profits of the said mortgaged premises come to the hands of the said defendant Robinson, or of any other person or persons by his order or for his use, or which he without his wilful default (1) might have received. And what shall be coming on the said account of rents and profits is to be deducted out of what shall be found due to the said defendant Robinson for principal, interest and costs. And for the better taking the said account all parties are to produce &c. [See Directions, No. II. ante.] And what upon the balance of the said account shall be certified due to the said defendant Robinson for his principal, interest and costs, it is ordered and decreed that the said plaintiff Arthur Oneley do pay the