the property will be as valid as if it had been executed by the mortgagor and mortgagee, and will be an entire bar against each of them, and against all parties to the suit in which the decree for such sale was made, and against their heirs and representatives, and all parties claiming under them or their heirs,' as well as against an assignee in bankruptcy,' who has notice of a suit pending against the bankrupt to foreclose the mortgage, although he was not made a party to the action; and such a deed will be a complete bar to the equity of redemption where the mortgagee becomes the purchaser the same as where the property is purchased by a stranger.

$13.

13. Who barred by foreclosure.-The forclosure and sale will be a bar under the statute against those persons who were properly made parties to the action, that is, the mortgagor and the mortgagee, and all subsequent incumbrancers, and against such rights as were properly the subject of litigation in the action. It will not bar the rights of persons who were not properly made parties to the litigation, and whose rights are paramount to those of the mortgagor and mortgagee." Thus a claim of dower in the premises was not barred by a foreclosure and sale under a mortgage executed by the husband alone during coveture, although the widow. was made a party to the foreclosure suit, and the bill, which was taken as confessed against her, alleged that she claimed

Abb. (N. Y.) Pr. 473 (1861); Lewis v. Smith, 11 Barb. (N. Y.) 152 (1851); LeGuen v. Gouverneur, 1 Johns. Cas. (N. Y.) 436 (1800); Breese v. Bangs, 2 E. D. Smith (N. Y.) 474 (1854); Wood v. Jackson, 8 Wend. (N. Y.) 9 (1831); s. c. 22 Am. Dec. 603; Buckmaster v. Carlin, 4 Ill. (3 Scam.) 104 (1841); Bank of United States v. Voorhees, 1 McL. C. C., 221 (1834).

' Blakeley v. Calder, 15 N. Y. 617 (1857); Holden v. Sackett, 12 Abb. (N. Y.) Pr. 473 (1861); Breese v. Bangs, 2 E. D. Smith (N. Y.) 474

(1854); Wood v. Jackson, 8 Wend. (N. Y.) 9 (1831); s. c. 22 Am. Dec. 603; Buckmaster v. Carlin, 4 Ill. (3 Scam.) 104 (1841); Bank of United States v. Voorhees, 1 McL. C. C., 221 (1834); 2 N. Y. Rev. Stat. 192, $158.

2 Under Acts of Congress, 1841; 5 Stat. at Large, 446.

3 Cleveland v. Boerum, 24 N. Y. 613 (1862).

Lansing v. Goelet, 9 Cow. (N. Y.) 346 (1827).

5 Lewis v. Smith, 9 N. Y. 502 (1854); s. c. 41 Am. Dec. 706.

some interest in the premises "as subsequent purchaser, or incumbrancer, or otherwise."1

$ 14. Subsequent incumbrancers.--The decree of foreclosure and the sale thereunder, are a bar only against persons who were made parties to the action, their heirs and assigns, and those claiming under them; consequently where the mortgage is foreclosed without joining the holder of a subsequent incumbrance upon or interest in the premises, whose title appears of record, the decree will not be binding upon such incumbrancer.3

15. Foreclosure as payment of debt.-The principle is well settled that the foreclosure of a mortgage, by whatever method, operates as a payment of the mortgage debt, to the extent of the value of the property; and this is true even though the foreclosure is brought by an assignee, holding only a part of the mortgage debt; therefore, where a mortgagee forecloses his mortgage his debt becomes by that act extinguished to the extent of the value of the land at the time of the foreclosure, and whatever he may hold as collateral security for the debt in addition to the mortgage on the land, will thereby become discharged to the same extent." Where the property is not sufficient to discharge the mortgage debt, the mortgagee may maintain an action at law

309 (1856); Hurd v. Coleman, 42 Me. 182 (1856); Southard v. Wilson, 29 Me. 56 (1848); Briggs v. Richmond, 27 Mass. (10 Pick.) 391 (1830); s. c. 20 Am. Dec. 526; Hunt v. Stiles, 10 N. H. 466 (1839); Paris v. Hulett, 26 Vt. 308 (1854); Lovell v. Leland, 3 Vt. 581 (1831). Contra Strong v. Strong, 2 Aik. (Vt.) 373 (1827).

Johnson v. Candage, 31 Me. 28 (1849). See Brown v. Tyler, 74 Mass. (8 Gray) 135 (1857); s. c. 69 Am. Dec. 239.

Smith v. Packard, 19 N. H. 575 (1849).

for the debt after deducting the value of the premises or the amount for which they were sold;' because in such a case the foreclosure only extinguishes the debt to the extent of the money produced by the sale. The reason is said to be the fact that the mortgage is but a mere security for the debt and collateral to it; that the debt has an independent existence and remains with all its original validity, notwithstanding a release of the mortgage; that the former is the principal and the latter an incident, though not an indispens able incident.' But where the value of the property mortgaged exceeds the amount of the debt, foreclosure will operate as full payment even at law.*

1 Globe Ins. Co. v. Lansing, 5 Cow. (N. Y.) 380 (1825); s. c. 15 Am. Dec. 474; Porter v. Pillsbury, 36 Me. 278 (1853); Andrews v. Scotton, 2 Bland. Ch. (Md.) 629 (1830); Amory v. Fairbanks, 3 Mass. 562 (1793); Hatch v. White, 2 Gall. C. C. 154 (1814); Omaly v. Swan, 3 Mason C. C. 474 (1824); Briggs v. Richmond, 27 Mass. (10 Pick.) 391, 396 (1830); West v. Chamberlin, 25 Mass. (8 Pick.) 336 (1829); Lansing v. Goelet, 9 Cow. (N. Y.) 346 (1827); Case v. Boughton, 11 Wend. (N. Y.) 106, 109 (1833); Morgan v. Plumb. 9 Wend. (N. Y.) 287, 292 (1832); Spencer v. Hartford, 4 Wend. (N. Y.) 384, 386 (1830); Hughes v.

Edwards, 22 U. S. (9 Wheat.) 489 (1824); bk. 6 L. ed. 142; Aylet v. Hill, 2 Dick. 551 (1779); Took v. 2 Dick. 785 (1784); s. c. sub nom. Tooke v. Hartley, 2 Bro. C. C. 125 (1786); Perry v. Barker, 13 Ves. 198, 204 (1806); Dashwood v. Blythway, 1 Eq. Cas. Ab. 317 (1729); 4 Kent Com. 183.

2 Globe Ins. Co. v. Lansing, 5 Cow. (N. Y.) 3x0 (1826); s. c. 15 Am. Dec. 474; Dunkley v. Van Buren, 3 Johns. Ch. 331 (1818).

3 Hatch v. White, 2 Gall. C. C. 152, 154 (1814).

4 Bassett v. Mason, 18 Conn. 131 (1846).

§ 16. In General.-Courts of Equity.-Courts of equity. have inherent original jurisdiction of actions to foreclose mortgages, and authority to render such judgment or decree as substantial justice between the parties may require. And although this power is conferred by statute upon courts of law in several states,' yet courts of equity, where they have not been suspended by codes of practice, doing away with all distinctions between actions at law and actions in equity, still have concurrent jurisdiction of the foreclosure of mortgages and are frequently resorted to in particular cases because, it is said, they afford a more complete and certain. remedy.'

1 Statutes regulating mortgage foreclosures have been enacted in California, Florida, Indiana, Iowa, Kansas, Kentucky, Minnesota, Missouri, Nebraska, Nevada, North Carolina, Ohio, Oregon, South Carolina and Wisconsin. And see State Bank of Illinois v. Wilson, 9 Ill. 57 (1847); Warehime v. Carroll Co.

Building Assoc., 44 Md. 512 (1876); Chouteau v. Allen, 70 Mo. 290 (1879); Byron v. May, 2 Chand. (Wis.) 103 (1850).

2 Shaw v. Norfolk Co. R. R. Co., 71 Mass. (5 Gray) 162 (1855); McElrath v. Pittsburgh & S. R. R. Co., 55 l'a St. 189 (1867).

Where a mortgage contains a power of sale, such power will not deprive courts of equity of their jurisdiction to foreclose.' It is said that the reason for retaining jurisdiction in a court of equity is, that the mortgagee is incapable of purchasing at his own sale under a power in the mortgage," but that at a sale made by an officer under a decree of foreclosure the mortgagee may become a purchaser.'

17. Foreclosure-Trial by jury. In an action to foreclose a mortgage brought under a statute providing for such proceedings, the court may, in its discretion, direct a reference, or ask the aid of a jury to inform its conscience, or it may decide the case without such aid; but the defendant can not ask as a matter of right to have the issues framed and tried at law. And a jury trial can not be demanded as a matter of right in an action to recover upon a promissory note, and to foreclose a mortgage executed to secure the same, where the pleadings admit the right to recover the amount due upon the note, and nothing is left in controversy but the right to foreclose the mortgage, and to subject the property mortgaged to the payment of the amount admitted to be due.'

The fact that in an action to foreclose a mortgage, the sale of the mortgaged premises may result in a deficiency, for which a money judgment may be docketed against the defendant liable for such deficiency, does not entitle him, as a matter of right, to a jury trial; the action is in equity and is triable by the court."

Should the court in such a case direct any matter of fact to be tried by a jury as authorized by the New York Code

1 Alabama Life Ins. & T. Co. v. Pettway, 24 Ala. 544 (1854); Carradine v. O'Connor, 21 Ala. 573 (1852); Warehime v. Carroll Co. Building Assoc., 44 Md. 512(1876); Morrisson v. Bean, 15 Tex. 267 (1855); Walton v. Cody, 1 Wis. 420 (1853); Byron v. May, 2 Chand. (Wis.) 103 (1850). * Marriott v. Givens, 8 Ala. 694 (1845): McGowan v. Branch Bank of Mobile, 7 Ala. 823 (1845).