FORECLOSURE. A proceeding in Chan eery by which the mortgagor's right of re demption of the mortgaged premises is barred or closed forever.
The modern significance of the term, as ap plied •to mortgages, is that of a sale under a judgment of foreclosure, and not the judg ment itself ; Sichler v. Look, 93 Cal. 600, 29 Pac. 220.
This takes place when the mortgagor has forfeited his estate by non-payment of the money due on the mortgage at the time ap pointed, but still retains the equity of redemp tion ; in such case, the mortgagee may file a bill calling on the mortgagor, in a court of equity, to redeem his estate presently, or, in default thereof, to be forever closed or bar red from any ,right of redemption.
In some cases, however, the mortgagee ob tains a decree for a sale of the land under the direction of an officer of the court, in which case the proceeds are applied to the discharge of incumbrances, according to their priority. See Hart v. Ten Eyck, 2 Johns. Ch. (N. Y.) 100 ; Palmer's Adm'rs v. Mead, 7 Conn. 152 ; Gilman v. Hidden, 5 N. H. 30 ; Anonymous, 2 N. C. 482 ; Higgins v. West, 5 Ohio 554 ; Quint v. Little, 4 Greenl. (Me.) 495 ; 1 Washb. R. P. 589 ; Dan. Ch. Pr. 1204.
In an action to foreclose a mortgage, there is no occasion for an entry for breach of con dition; Cook v. Bartholomew ; 60 Conn. 24, 22 Atl. 444, 13'L. R. A. 452. Where, before be ginning suit to foreclose for default in paying interest, the defaulted interest was paid and accepted, such acceptance is a waiver of any claim of forfeiture on account of the default ; Smalley v. Ranken, 85 Ia. 612, 52 N. W. 507.
Strict Foreclosure. When the property is of less value than the mortgage debt and the mortgagee is willing to take it for his debt, the court may decree a strict foreclosure, un less there are other encumbrancers, purchas ers of the equity of redemption or creditors to object ; Farrell v. Parlier, 50 Ill. 274; Flagg v. Walker, 113 U. S. 659, 5 Sup. Ct. 697, 28 L. Ed. 1072 ; if the mortgagor is insolvent and there are no other encumbrancers ; Hol lis v. Smith, 9 Ill. App. 109. See note in 19 L. Ed. 354 ; 20 L. R. A. 370. Such a decree must find the amount due and allow time for payment and redemption ; it cannot be final in the first instance ; Clark v. Reyburn, 8
Wall. (U. S.) 318, 19 L. Ed. 354.
Strict foreclosure is usually by a bill in equity praying the foreclosure, by which the court, through a master, ascertains the amount due upon the mortgage and then de crees that unless the owner of the equity of ( redemption shall within a ,prescribed time pay that sum and redeem the proPerty, he shall be forever barked ; 4 Kent 180 ; 2 Washb. R. P. 248. It has been spoken of as a harsh remedy ; Bolles v. Duff, 43 N. Y. 469.
It can only be resorted to under peculiar circumstances ; Jefferson v. Coleman, 110 Ind. 515, 11 N. E. 465. It would not generally be alloWed withOut the mortgagor's consent ; Caufrnan v. Sayre, 2 R. Mon. (Ky.) 202. It exists in Maryland ; Dorsey v. Dorsey, 30 Md. 522, 96 Am. Dec. 617; Wisconsit ; ball v. Darling, 32. Wis. 675 ; and New Je• sey ; Parker v. Child, 25 N. J. Eq. 41; it i. said to be unusual in North Carolina ; Green v. CroCkett, 22 N. C. 390. It is held that the mortgagor's equity of redemptiOn can only be barked by his-own agreement, by estoppel, or by jadicial sale; Appeal of Winton, 87 Pa 77. That it is not recognized as a practice, see Browne v. Browne, 17 Fla. 607, 35 Am. Rep. 96 ; Gamut v. Gregg, 37 Ia. 573 ; Davi: v. Holmes, 55 Mo. 349 ; First Nat. Bank v Min. Co., 8 Mont. 32, 19 Pap. 403 ; Kyger v Ryley, 2 Neb. 20 ; in some of these states the subject is regulated by code. In Massachu setts practice is usually by way of eritrj in posaessiOn; or by writ .of entry, or wide] the powers contained in the Mortgage. Usu ally considerable period is allowed for re demption. In Maine there is proceeding bj writ of entry the mOrtgE4or has three years for redemption.
A strict forecloSure will not be granted n cut off the right of a Second mortgagee when he was not a party ; Moulton v. Cornish, 131 N. Y. 133, 33 N. E. 842, 20 L. R. A. 370 ; bu the decree may direct that, 'unless within prescribed time he shall notify the purchase] of his intention to redeem, he shall be bar red; Moulton v. Cornish, 138 N. Y. 133, 31 N. E. 842, 20 L. R. A. 370.
See Horr v. Herrington, 22 Okl. 590, 91 Pac. 443, 20 L. R. A. (N. S.) 47 and note, 13: Am. St. Rep. 648.
As to the subject generally, and also as t( Railway Foreclosure, see MORTGAGE.