A mortgage, notwithstanding its legal form as a conditional conveyance, is regarded in equity as a security merely, subject to an equitable right to redeem after the legal or contractual right to redeem has been forfeited (f). In accordance with equitable principles the court will not usually decree immediate foreclosure in a mortgage action, but will allow the owner of the equity of redemption a period of six months before foreclosing him (g).

In the ordinary case in which there is no dispute as to the validity of the mortgage or other preliminary question requiring a trial, interlocutory judgment may be obtained by the mortgagee on praecipe or on motion.

(b) Wright v. Morgan, 1877, 1 O.A.R. 613; Cattanach v. Urqu-iart, 1873, 6 O.P R. 28.

(c) Wright v. Morgan, 1877, 1 O.A.R. 613.

(d) Building & Loan Association v. Poaps, 1896, 27 O.R. 470.

(e) Odell v. Bennett, 1889, 13 O.P.R. 10.

(f) See chapter 3, Legal Mortgage in Equity, Sec. 21.

(g) Parker v. Housefield, 1834, 2 My. & K. 419, 18 R.C. 497.

It is provided in Ontario by rule 466 as follows:

466. In a mortgage action where the defendants, or some of the defendants, are infants and default is made by the adult defendants and the official guardian does not desire to set up any defence, the plaintiff, upon filing affidavits showing such facts and circumstances as entitle him to judgment, may move for judgment in chambers, upon notice to the official guardian.

Where infants are defendants, but an adult defendant is a lunatic or person of unsound mind, judgment cannot be pronounced in chambers, but the motion must be made in court

In an action for foreclosure, where an infant is defendant, the judgment, as well as the final order of foreclosure, should name a day to show cause within six months after he shall come of age (i). Where the judgment is for sale a day to shew cause is not reserved. If the infant defendant, upon attaining the age of twenty-one does not within the time named show good cause to the contrary the judgment or order will be binding upon him (j).

Sufficient evidence of "such facts and circumstances" as entitle the plaintiff to judgment would be afforded by an affidavit such as was prescribed (where the cause was heard upon an order to take the bill pro confesso, and no reference as to encumbrances was required) by former Chancery general order 432, in force at the time of the passing of the Judicature Act, namely, and the amount remaining due for principal and interest, distinguishing how much for principal and how much for interest. The affidavit is to state whether the mortgaged premises, or any part of them, have been in the occupation of the mortgagee or of any one under whom he claims; and, when there has been any such occupation, the affidavit is to state its nature, the time it continued, and the fair rentable value of the property (k).

An affidavit which is to state the amount advanced upon the security; the amount paid, whether by receipt of rent or otherwise;

(h) Warnock v. Prieur, 1887, 12 O.P.R. 264.

(i) Mellor v. Porter, 1883, 25 Ch. D. 158; London and Canadian Loan and Agency Co. v. Everitt, 1881, 8 O.P.R. 489; Mair v. Kerr, 1851, 2 Gr. 223.

(j) As to what cause an infant may show, see Seton on Decrees, 5th ed. 828 ft.

Where the defendants are all adults and sui juris, judgment may be signed under rule 467, as follows:

467.- (1) Where the writ has been duly endorsed, and the defendant fails to appear, or by his statement of defence admits the execution of the mortgage and other facts entitling the plaintiff to a judgment, or where the defendant disclaims any interest in the mortgaged premises, or where no statement of defence is delivered, or where the defendant disputes the amount of the plaintiff's claim only, the plaintiff may sign judgment. (2) Where the defendant has disputed the amount of the plaintiff's claim, he shall be entitled to four days' notice of the taking of the account. Where no reference as to the encumbrances is desired, such account may be taken by the officer signing judgment; whose finding shall be subject to appeal to a judge in chambers in the manner prescribed for appeals from the master in chambers.

(3) Where the writ has not been personally served, the claim of the plaintiff shall be duly verified by an affidavit which shall be filed with the officer taking the account.

This rule continues in substance the practice adopted in the Court of Chancery for Upper Canada on the 20th December, 1865. Since that date the plaintiff has been entitled to obtain on praecipe such an order as prior to that date would have been granted by the court on a hearing of the cause, on the order to take the bill pro confesso (l).

It may be necessary to insert special provisions in the judgment. Thus, where the defendants pleaded tender, the master was directed to make enquiry on this point, and further directions and costs were reserved (m). And where the defendant pleaded payment in full, the costs were reserved (n). Where the defendants were rival claimants to the equity of redemption it was referred to the master to take the usual accounts and report, reserving the right to redeem to one of the defendants, with a proviso that if before the day appointed for payment the other defendant should establish his right to redeem, then he should redeem; and it was directed that the master should not delay his report upon the account pending the enquiry (o).

(k) Taylor & Ewart, Judicature Act, p. [208].

(l) Kirkpatrick v. Howell, 1875, 22 Gr. 94. See Chancery general order 435, in force when the Judicature Act was passed; Taylor & Ewart, Judicature Act, p. [209].

(m) Peers v. Allen, 1872, 19 Gr. 98.

In special circumstances the court may on motion fix a time less than six months or may direct immediate foreclosure or sale. Where it appeared that the mortgaged property was not worth the amount due to the plaintiff, and that it was for the benefit of the infant defendants, judgment for immediate foreclosure was granted (p).