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It was formerly the rule, that a remainder-man or reversioner could compel the tenant for life to contribute to the redemption (d), and that the tenant for life should pay one-third, and the remainder-man two-thirds (e); and in one case, it was decreed, that the tenant for life should contribute two-fifths, and the remainder-man three-fifths (ƒ). This, however, is now entirely altered, the rule being that the tenant for life shall be compelled only to keep down the interest during his life (g): but if the tenant for life refuse to redeem, the remainder-man may, by redeeming the mortgage, and ejecting the tenant for life, and taking possession of the profits, or by filing a bill of foreclosure, compel the tenant for life to come in and contribute, or give up the possession of the estate (h).

Subsequent mortgagees cannot redeem without making the mortgagor, or his heir, a party to the bill (i); and if the heir be not within the jurisdiction of the Court, the cause cannot proceed, because the decree is, that the second mortgagee shall redeem the first, and the mortgagor, or his heir, shall redeem the second or be foreclosed (j). This principle is

(d) Hayes v. Hayes, 1 Cha. Ca. 224; Cornish v. Mew, ibid. 271; Clyat v. Batteson, 1 Vern. 404; Ballett v. Sprainger, Pre. Ch. 62; Rowel v. Walley, supra; et vide 3 Anstr. 757.

(e) Vide supra.

(ƒ) James v. Hales, 2 Vern. 268; Pre. Ch. 44.

(g) White v. White, 9 Ves. 560; et vide supra, page 445.

(h) Vide 3 Anstr. 757.

(i) Fell v. Brown, 2 B. C. C. 276; Ramsbottom v. Wallis, App. (j) Vide supra; et vide Palk v. Clinton, 12 Ves. 48; Woodcock v. Meyne, cited ibid. 59; Ramsbottom v. Wallis, supra.

carried so far, that if a man mortgage an entire estate to A. which, on the death of the mortgagor, devolves on two different persons, and one of those persons mortgages his part to another, and the mortgagee of that part file his bill to redeem, he must make not only the first mortgagee, and his own immediate mortgagor, but also the owner of the other share, parties to the bill, because he must redeem the first mortgagee in toto (k), and the other party, so far as respects part of the estate, is standing in the place of the original mortgagor (1).

If two estates are comprized in one mortgage, and the equities of redemption devolve on different parties, the equitable owner of one estate cannot maintain his bill for redemption without making the equitable owner of the other estate a party to the suit (m).

It has become a settled rule in equity that a mortgagor must, after default made by him in payment of the money according to the proviso in the mortgage-deed, give the mortgagee six calendar months' notice of his intention to pay off the mortgage (n) unless the mortgagee has demanded or taken any steps to compel payment; in which latter case, not any notice is requisite; and it has been considered that if the mortgagor be willing to pay six months' interest in advance, notice will be unnecessary (0);

(k) 12 Ves. 61.

(1) Palk v. Clinton, supra. (m) Cholmondeley v. Clinton, 2 Jac. & Walk. 133. (n) Vide supra; and vol. 2. Ca. and Opin. page 51. (0) Vol. 2. Ca. and Opin. 51.

but as interest is by law a remuneration for delay of payment of the principal, if the money so to be paid in addition to the principal is to be considered as interest, it could hardly be with safety accepted; but regarding it as a consideration for the relinquishment by the mortgagee of his right to notice, it is thought the payment will not fall within the laws against usury, and no danger will be incurred by the transaction.

CHAPTER II.

OF ACCOUNTING.

WHETHER the bill be filed by the mortgagor for redemption, or by the mortgagee for foreclosure, the order of the Court is, that it be referred to the Master to take an account of principal, interest, and costs, due to the mortgagee. But if the reference be made on application of the mortgagor (a), under the remedial Act of the 7th Geo. II., cap. 20, he will be considered bound by the sum charged in the bill by the mortgagee, and it will not be open to the Master to admit evidence to the contrary (b).

The usual decree of the Court is, that the Master shall take an account of what the mortgagee has received, or might have received, if it had not been for his own default; but any sums received subsequent to the decree, must be brought into the account (c), although the decree does not, in words, extend to future rents.

It is the privilege of the mortgagor (d) not to be bound to account for the rents and profits while

(a) Vide supra.

(b) Huson v. Hewson, 4 Ves. 103, et vide supra.

(c) Bulstrode v. Bradley, 3 Atk. 582.

(d) Vide supra, page 395.

in possession; and, it seems, there is no instance to the contrary, however insufficient the security may prove (e).

The mortgagee is subject to an account from the time he takes possession; but the Master must not take annual rests of rents received, unless specifically directed by the decree (f). The Court will, however, it seems, direct annual rests, if there be no interest in arrear when the mortgagee takes possession (g), and in certain cases, in which the rents considerably exceed the interest (h), but in general the Court does not direct annual rests (i), or for part of the time (k). If the mortgagee was paid in full at the time of filing the bill, he will be charged with interest on the balance in his hands (), and with costs (m).

Annual rests will be decreed against a mortgagee in possession from the time it is ascertained the debt was paid off, although rests were not directed by the previous orders and decrees under which the accounts were taken (n), and will be directed as well in the

(e) Colman v. Duke of St. Albans, 3 Ves. 25; Ex parte Wilson, 2 Ves. & Bea. 252; et supra.

(f) Webber v. Hunt, 1 Madd. 13; Davis v. May; Fowler v. Wightwick, cited ibid.; Donovan v. Fricker, 1 Jacob, 168. (g) Shephard v. Elliott, 4 Madd. 254.

(h) Gould v. Tancred, 2 Atk. 533; Donovan v. Fricker, supra. (i) Davis v. May, Cooper's Rep. 240, and the several cases there mentioned.

(k) Ubi supra; et vide Latter v. Dashwood, 6 Sim. 462.

(1) Quarrell v. Beckford, 1 Madd. 269.

(m) Binnington v. Harwood, Turner & Russell, 485.

(n) Wilson v. Metcalfe, 1 Russell, 630.

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