(y) Cruso v. Close, 1879, 8 O.P.R. 33; see, however, London and Canadian Loan and Agency Co. v. Morrison, 1879, 7 O.P.R. 450, where under a former rule the opinion was expressed that an order increasing the amount required as a deposit might be made before the order for sale was acted upon.

(z) Lawrason v. Fitzgerald, 1862, 9 Gr. 371. Where it appeared from the evidence taken before the master that a sale would not realize the amount of the plaintiff's claim, foreclosure was decreed. Landed Banking & Loan Co. v. Anderson, 1886, 3 M.R. 270.

It is also provided by rule 465 as follows (b):

465. The court may on special application either before or after judgment direct a sale instead of a foreclosure; and without previously determining the priorities of encumbrancers, or giving the usual or any time to redeem.

The object of the provision as to ordering a sale without determining priorities is to cover the case of one mortgagee having an admitted priority, and his claim being probably large enough to absorb the whole price realised, in which case there will be no necessity to determine the priorities between the other mortgagees (c).

If a subsequent mortgagee brings an action and makes a prior mortgagee a party, the former will be limited to his. right to redeem the latter. Usually the prior mortgagee will not be a party at all and will not be affected by the proceedings, and a sale in the action will take effect subject to his mortgage (d). The subsequent mortgagee cannot as plaintiff, not seeking to redeem, have a sale as against the prior mortgagee (e), although if a subsequent mortgagee is brought into court by a prior mortgagee suing for foreclosure he may obtain a sale on proper terms.

(a) Canada Life Assurance Co. v. Vance, 1909, 2 S.L.R. 398; cf. Excelsior Life v. Prestniak, 1908, 1 S.L.R. 215; McGregor v. Hem-street, 1912, 5 D.L.R. 301 (Sask).

(b) Under the English Conveyancing Act, 1881, s. 25, which enlarged the power of the court to order a sale under the now repealed provision of the Chancery Improvement Act, 1852, it has been held that the court may in a foreclosure action order a sale at any time before the foreclosure has become absolute. Union Bank of London v. Ingram, 1882, 20 Ch.D. 463. But in Manitoba it has been held that the court has no power to make an order for sale after a decree for foreclosure except by the consent of all parties interested, and that the decree could be varied only on a rehearing. Credit Foncier Franco-Canadien v. Schultz, 1894, 10 M.R. 158.

(c) Strahan, Law of Mortgages, 2nd ed., p. 137.

(d) See Sec. 234, supra.

As in the case of a judgment for foreclosure, judgment for sale may be without a reference, if there are no subsequent encumbrancers, or with a reference, if there are subsequent encumbrancers (f).

If the judgment is for sale with a reference as to subsequent encumbrances, the proceedings in the master's office will be similar to those which may be had under a judgment for foreclosure as regards the general conduct of the reference, the adding of parties, the taking of accounts and the master's report (g). Under a judgment for sale, however, the usual practice is to appoint one day six months in the future for redemption by the defendant by writ and by the subsequent encumbrancers, instead of appointing successive days for redemption as in the case of a judgment for foreclosure.

If default is made under a judgment without a reference or under the master's report pursuant to a judgment directing a reference, a final order of sale may be made (h).

It is provided by rule 478 as follows:

478. If the judgment directs a sale on default in payment, then on default being made, and an order for sale obtained, the property shall behold, with the approbation of the master, and the purchaser shall pay his purchase money into court, to the credit of the action.

The ordinary judgment for sale obtained on praecipe allows the defendants a period of six months for redemption,

(e) Campbell v. McDougall, 1880, 5 O.A.R. 503, S.C. sub worn. McDougall v. Campbell, 1881, 6 Can. S.C.R. 502; Wallace v. Smart, 1912, 22 M.R. 68, 1 D.L.R. 70.

(f) See Sec. 236, supra, where the forms of judgment are set out, and the procedure for obtaining judgment is outlined.

(g) See Sec. Sec. 237 ff., supra. For form of report under a judgment for sale, see Holmested & Langton, Forms and Precedents, 2nd ed., no. 1075.

(h) As to the application for the order, cf. Sec. 244, supra, as to a final order of foreclosure.

but in special circumstances judgment for immediate sale without giving a day for redemption may be granted without the consent of the mortgagor (i), or without the consent of the subsequent encumbrancers (j). That the property is wholly unproductive (k), that the interest has been in arrears for many years (l), that the mortgaged estate is insufficient to realize the claim and is deteriorating (m), that for a special reason, for instance the building of railway in the vicinity of the lands, a favourable sale can be made (n), are special circumstances that will be considered by the court on an application for immediate sale.

It is provided in Ontario by rules 438 ff. as follows:

438. Where a sale is ordered, the master may cause the property to be sold either by public auction, private contract, or tender, or part by one mode and part by another, as he may think best for the interest of all parties.

439. The party having the conduct of the sale shall bring into the master's office a draft advertisement (o), which shall shew:

(a) The short style of cause;

(b) That the sale is in pursuance of an order of the court;

(c) The time and place of sale;

(d) A short and true description of the property.to be sold;

(e) The manner in which the property is to be sold, whether in one lot or several, and if in several, in how many, and what lots;

(f) What proportion of the purchase money is to be paid down by way of deposit, and at what time or times, and whether the residue of such purchase maney is to be paid with or without interest;

(g) If there is an upset price or reserve bid it shall be so stated;

(i) Foster v. Harvey, 1863, 4 DeG. J. & S. 59.

(j) Township of Hamilton v. Stevenson, 1877, 25 Gr. 198; Newman v. Selfe, 1864, 33 Beav. 522.

(k) Foster v. Harvey, supra.

(l) Newman v. Selfe, supra.

(m) Rigney v. Fuller, 1853, 4 Gr. 198.

(n) Swift v. Minter, 1879, 27 Gr. 217.

(o) For form of advertisement, see Bell & Hoyles, Practice Forms, no. 674; Holmested & Langton, 2nd ed., no. 1035.

(h) Any particulars in which the proposed conditions of sale differ from the standing conditions.

440. Upon the return of the appointment to settle the advertisement the master shall also fix the time and place of sale, name an auctioneer, where one is to be employed, give direction for publication, fix the upset price or reserve bid, and make every other necessary arrangement preparatory to the sale.

441. The standing conditions of sale shall be those set forth in form no. 52.

Form no. 52 is as follows:

Standing Conditions of Sale.

1. No person shall advance less than $10 at any bidding under $500, nor less than $20 at any bidding over $500, and no person shall retract his bidding.

2. The highest bidder shall be the purchaser; and if any dispute arise as to the last or highest bidder, the property shall be put up at a former bidding.

3. The parties to the action, with the exception of the vendor, .and, naming any parties, trustees, agents, or others, in a fiduciary situation), shall be at liberty to bid.

4. The purchaser shall, at the time of sale, pay down a deposit, in proportion of $10 for every $100 of the purchase money, to the vendor, or his solicitor; and shall pay the remainder of the purchase money, on the day of next; and upon such payment, the purchaser shall be entitled to the conveyance, and to be let into possession; the purchaser at the time of sale to sign an agreement for the completion of the purchase.

5. The purchaser shall have the conveyance prepared at his own expense, and tender the same for execution.

6. If the purchaser fails to comply with the conditions aforesaid, or any of them, the deposit and all other payments made thereon, shall be forfeited, and the premises may be resold; and the deficiency, if any, by such re-sale, together With all charges attending the same, or occasioned by the defaulter, are to be made good by the defaulter.

442. All parties may bid, except the party having the conduct of the sale, and except any trustees, agents, and other persons in a fiduciary position.

443. The master or his clerk shall conduct the sale where no auctioneer is employed.

444. The purchaser shall at the time of sale sign an agreement to purchase.

445. The deposit shall be paid to the vendor, or his solicitor, at the time of sale, and shall forthwith be paid by him into court, in the name of the purchaser.

446. After the sale is concluded, the auctioneer, where one is employed, shall make an affidavit as to the result of the sale and where no auctioneer is employed, the master or his clerk shall certify the result (p).

Form no. 53 is as follows: