If the principal money and interest are not paid at the time agreed on, the mortgagee may file a bill of foreclosure against the mortgagor. By such bill the mortgagee calls on the mortgagor to redeem his estate .forthwith, by payment of the principal money, interest, and costs; and if the mortgagor does not do this within the time named by the decree of the court (which is generally within six months after report has been made of what is due for principal, interest, and costs), he is for ever foreclosed and barred of his equity of redemption, and the mortgagee becomes the owner of the Land in equity, as he was before at law. If the money is paid at the time named, the mortgagee must reconvey the land, and deliver up to the mortgagor all the deeds and writings in his possession relating to the land.
If both the mortgagor and mortgagee are living at the time when the Lands are redeemed, and nothing has been done by either party to assign or transfer his interest to any other person, the transaction is a very simple one : the Mortgagor pays his debt and interest, and the mortgagee reconveys the lands. The settlement of accounts between the mortgagor and mortgagee may be rendered more difficult by the cir cumstance of the mortgagee having received the rents, for which the decree for redemption provides that he must account. It may however happen that the mortgagor or mortgagee is dead, or that they have severally disposed of their interests in the lands, or all these events may have happened, which renders the settlement much more complicated.
To take the case of mortgagor and mortgagee being dead. As every mortgage transaction implies a debt from the mortgagor to the mort gagee, which he is bound to pay, even if there are no covenants for payment in the mortgage-deed, it followed that, according to the general rule of law, his personal estate was in the first instance liable to pay the mortgage debt, unless he had by his will made a different provision for payment of it. Thus the heir or devisee of the equity of redemption might be entitled to call on the administrator or executor to pay the mortgage debt. If however the lands in question were not mortgaged by the intestate or devisor, but the equity of redemption descended or was devised to him from or by the mortgagor, or if he purchased the equity of redemption, his personal estate was not liable to pay the mortgage debt ; but the person who derived his title to the land from such intestate, devisor, or purchaser, took it subject to the burden of the mortgage debt, and this is still the law as to lands devolving under wills dated previously to the 1st of January, 1855. For other cases
the law is now altered by 17 & 18 Vict., c. 113, so that land in mort gage passes to the heir or devisee cunt onere.
When a mortgage deed contains a power of sale, which is exercised in the lifetime of the mortgagor, the surplus money is personal estate; but if the sale is effected after the mortgagor's death, the money belongs to his heir or the devisee of the lands.
The person entitled to receive the debt is the administrator or executor of the mortgagee ; for, as already observed, the land is only considered as a security for the debt, which the mortgagor has bound himself, his heirs, executors, and administrators, to pay to the mortgagee, his executors, administrators, and assigns. Thus, whether the mortgagee dies without having or after having assigned his mortgage, the money is a debt due to the personal representative of the mortgagee, or to his assignee, or to the personal representativo of the assignee, if the assignee is dead. When the debt is received by the person entitled to receive it, the person who has the legal owner ship of the land, whether ho be heir or devisee, is bound to convey it to the person who, on the payment of the debt, becomes entitled to the legal estate. In such case, on payment of the debt to the person entitled to receive it, the heir or devisee is by a fiction converted into a trustee for the person entitled to the land. The mortgagee may however, by express declaration, convert the mortgage debt into land (according to the technical expression), and make it pass as land by his will, in which case the devisee will have the same title to the money as he would have had to the land if it had been absolutely the property of the mortgagee.
When the mortgagor has mortgaged his equity of redemption (which he may do as often as be pleases), every new mortgagee has his claim on the land as a security for his debt, according to the order in which his mortgage stands. This is the general rule ; but it is subject to various exceptions, which depend on particular circumstances. Thus a mortgagee of the equity of redemption will be postponed, as to his security, to a subsequent mortgagee who has advanced his money without notice of the prior mortgage, if such subsequent mortgagee should be able to obtain the legal estate.