Actions by puisne incumbrancers for foreclosure and redemption. Where mortgagee a sale. with costs. And see Riley v. Croydon, 5 N. R. 160; 13 W. R. 223; 11 L. T. 591, where a bill by the assignee of the tenant for life to redeem a mortgage on the inheritance, the tenant for life having died pendente lite, was dismissed with costs. In an action by a puisne incumbrancer for redemption and foreclosure merely, the costs of each party are added to his security and paid with his principal and interest according to his priority (Wright v. Kirby, 23 Beav. 463; Wild v. Lockhart, 10 Beav. 320; 16 L. J. Ch. 519; Barnes v. Racster, 1 Y. & C. C. C. 401; and see Wonham v. Machin, 10 Eq. 447). But where the suit is instituted to ascertain priorities upon an estate or fund, the plaintiff has costs in the first instance, and the costs of other parties are added to their securities (Wright v. Kirby, 23 Beav. 463; White v. Bishop of Peterborough, Jac. 402; Brace v. Duchess of Marlborough, Mos. 50; Ford v. Lord Chesterfield, 21 Beav. 426; and see Johnstone v. Cox, 19 Ch. D. 17). We have already seen (ante, p. 199), that a first mortconsents to gagee does not lose his priority in respect of costs by consenting to a sale of the mortgaged property in an action to administer the mortgagor's estate. Nor will he do so by consenting to a sale in a puisne incumbrancer's action (Wild v. Lockhart, 10 Beav. 320; 16 L. J. Ch. 519); and he is entitled to his principal, interest, and costs in priority even to the costs of the sale (ibid.; and see Crosse v. General Reversionary Co., 3 De G. M. & G. 698; Ward v. Mackinlay, 2 De G. J. & S. 358; 5 N. R. 28). So in a suit for foreclosure, where the plaintiff consented to a sale, and the fund proved insufficient to pay him his principal, interest, and costs, the whole fund was ordered to be paid to him (Upperton v. Harrison, 7 Sim. 444) ; subsequent and see Wonham v. Machin, 10 Eq. 447; 18 W. R. brancers 1098. In Kenebel v. Scrafton, 13 Ves. 370, it was held that where, in a suit for foreclosure, the mortgaged pro Where incum consent to a sale. perty had been sold with the concurrence of the subsc closure or sale. quent mortgagees, the costs of all parties were payable out of the proceeds in priority to the principal and interest of the first incumbrancer. But that case has not been approved or followed in practice (per V. C. Wigram, Hepworth v. Heslop, 3 Ha. 485); and see Wonham v. Machin, and Barnes v. Racster, 1 Y. & C. C. C. 401, where V. C. Knight Bruce held that the mere circumstance of there being a decree for sale instead of foreclosure did not prima facie change the rights of the parties; if a decree for sale was conceded on terms in order to prevent the operation of the general rule, the terms must appear in the decree itself. In Wontner v. Wright, 2 Sim. 543, which is often cited on this point, the mortgagee had lost his deeds, as to which see post, p. 228. In Cutfield v. Where plaintiff Richards, 26 Beav. 241, where the plaintiff being a mort- seeks foregagee of a term only filed a bill for foreclosure or sale, and by consent the fee simple was sold in the suit, he was held entitled to his costs in priority to other parties. "A mortgagee, by amending his pleadings and consenting to a sale of the estate instead of insisting upon his original claim to foreclose, does not forfeit his right to his costs in priority to the costs of the sale; and, until his claim is satisfied, nothing can be taken from the estate by the mortgagor or subsequent incumbrancers" (Set. p. 1061; and see Cook v. Hart, 12 Eq. 459). In Macrae v. Ellerton, 6 W. R. 851, where the bill prayed foreclosure or sale, the plaintiffs being legal mortgagees with a power of sale as to part and equitable mortgagees by agreement as to other part of the mortgaged property, V. C. Stuart held that the real and personal representatives of the mortgagor were entitled to costs, as between solicitor and client, out of the proceeds of sale of the property in priority to the plaintiffs' principal and interest. Honour placed much reliance on the circumstance that the plaintiffs had ineffectually attempted to sell without the concurrence of the mortgagors' representatives. V. C. Stuart followed his own decision in Fuller v. Morgan, His seeks a sale only. unreported, Set. 380, 3rd ed.; but it was disapproved of by V. C. Kindersley in Wade v. Ward, 4 Drew. 602, and forms an exception to the general rule; see Cook v. Where Hart, 12 Eq. 459. Where a legal mortgagee with a legal mortgagee power of sale filed a bill for a sale, it was formerly held that the subsequent incumbrancer and mortgagor concurring in the sale were entitled to costs in priority to the plaintiff's principal and interest (Cooke v. Brown, 4 Y. & C. 227; Alston v. Parker, 5 L. J. Ch. 3). But in Hutton v. Sealy, 6 W. R. 350, a decree was made for sale and payment of the plaintiff's principal, interest, and costs out of the proceeds, on the apparent grounds that the mortgagee had a right to have the trust of the purchase monies administered by the Court. Where the mortgaged property had been sold by the first mortgagee under his power of sale, and the second mortgagee filed a bill for an account, the first mortgagee was expressly charged as a trustee (Tanner v. Heard, 23 Beav. 555). But where the equity of redemption was settled in trust for sale to pay off the mortgage and then hold the surplus upon certain trusts, and a judgment creditor of the mortequity of gagee filed a bill to charge the mortgagee's interest under the deed, it was held that the trustees were entitled to their costs in the first instance (Clare v. Wood, 4 Ha. 81); and this seems to have been the point decided in Siffken v. Davis, Kay, app. xxi., though the report is not very intelligible. Or avails of the redemp tion. Right of an equitable to sale or closure. There has been considerable difference of opinion whether the strict right of an equitable mortgagee by mortgagee deposit is to foreclosure or sale; see the cases collected in fore- Tuckley v. Thompson, 1 J. & H. 126, where V. C. Wood inclined to the opinion that a sale was the proper remedy. But it seems that the balance of authority, at least as respects the more recent cases, is clearly in favour of foreclosure; see Pryce v. Bury, 16 Eq. 153 n. ; 2 W. R. 216; n.; 2 Drew. 41; 18 Jur. 967; Cox v. Toole, 20 Beav. 145; and the cases cited ante, p. 198. An equitable mortgagee seems to be in the same position with respect to costs as a legal mortgagee; see Lewis v. John, 9 Sim. 366; and Wade v. Ward, 4 Drew. 602, where the Court directed a sale, and held that the plaintiff was entitled to his principal, interest, and costs in priority to the infant heir of the mortgagor. In Tuckley v. Thompson, 1 J. & H. 126 (but see S. C. on app. 29 L. J. Ch. 548), an equitable mortgagee filed a bill to realise his security by sale and prove against the mortgagor's estate for the balance, and V. C. Wood gave him his costs in priority to all other claims, because by seeking only to prove for the balance against the estate he was asking less than his just rights; but the Vice Chancellor, following his own decision in Berry v. Hebblethwaite (4 K. & J. 80), thought the costs of the actual sale should come out of the proceeds of the mortgaged estate. As to the costs of a mortgagee instituting or adopting an administration suit, see ante, p. 196. tions to pays no The Court will not, on light grounds, deprive a mort- Excepgagee of his costs or make him pay costs (Loftus v. rule that Swift, 2 Sch. & L. 642; Detillin v. Gale, 7 Ves. mortgagee 583); but will do so in a proper case. A mortgagee costs. resisting the right to redeem, and relying on the trans- i. Where action as an absolute purchase, was allowed no costs in he resists the right Sevier v. Greenway, 19 Ves. 413; Lawley v. Hooper, to redeem. 3 Atk. 278; and had to pay the whole costs in Baker v. Wind, 1 Ves. Sen. 160; England v. Codrington, 1 Eden, 169; and see National Bank of Australasia v. United, &c., Co., 4 App. Cas. 391; Graham v. Horn, W. N. (1866), 166. In Harvey v. Tebbutt, 1 Jac. & W. 197, where the mortgagee relied on a foreclosure decrce. which had been collusively obtained, he had to pay only so much of the costs as were thereby occasioned, which were set off against the money payable by the plaintiff; and so in Perkins v. Bradley, 1 Ha. 219; Wheaton v. Graham, 24 Beav. 483, where the right to redeem was disputed; and see Credland v. Potter, 10 Ch. 8; 44 L. J. Where there is a Ch. 169; 23 W. R. 36; 31 L. T. 522; Tomlinson v. Gregg, 15 W. R. 51; W. N. (1866), 339; Shannon v. Casey, Ir. R. 8 Eq. 307. In Cowdry v. Day, 5 Jur. N. S. 1199, the defendant resisted the right to redeem; but as the bill contained injurious charges struck out by amendment, the usual decree was made. In Wicks v. Scrivens, 1 J. & H. 215, where the equity of redemption was in settlement, and the mortgagees had refused to be redeemed by the tenant for life, they had no costs up to the hearing, but did not pay costs, as the tenant for life had the advantage of having the account taken in the presence of the trustees of the settlement. Where the question whether the estate was redeemable or not involved a difficult point of real property law, the decree was made without costs (Kirkham v. Smith, 1 Ves. 258). As between two mortgagees when the question in disquestion of pute is as to their respective priorities, the one in whose priorities favour the Court decides is entitled to his costs from the between two mort- other one, the latter not having them over from the mortgagor (Mocatta v. Murgatroyd, 1 P. W. 392; and see Banks v. Whittall, 1 De G. & S. 536; Hiorns v. Holtom, 16 Jur. 1077); but where the question had arisen from the acts and conduct of the mortgagor himself, the plaintiff failing, was allowed the costs over (Pelly v. Wathen, 7 Ha. 351). A mortgagee who had lost some of the title deeds had to pay the costs of a foreclosure suit in Stokoe v. Robson, 19 Ves. 385; Shelmardine v. Harrop, 6 Mad. 39; so of a redemption suit (Lord Midleton v. Eliot, 15 Sim. 531). In the case last cited the mortgagee had refused to give any indemnity for the loss of the deeds. Where a mortgagee, who had lost his deeds, came to the Court for a sale, the subsequent incumbrancers were allowed their costs out of the proceeds, though insufficient to pay the plaintiff's debt (Wontner v. Wright, 2 Sim. 543). Where the mortgagees' solicitor, to whom the deeds had been delivered, fraudulently deposited the most important of them with a stranger to secure a debt of his own, the gages. ii. Where a mort gagee has lost his deeds. |