1. Definition.-The foreclosure of a mortgage is one of the remedies of the mortgagee, to enforce the payment of his debt, and has been defined in general terms as "the process by which the mortgagee acquires or transfers to a purchaser an absolute title to the property of which he has previously been only a conditional owner, or upon which he has previously had a lien or incumbrance."

When it is familiarly said that a foreclosure invests the mortgagee with the title and interest of the parties foreclosed, a practical effect is described rather than a legal proposition defined. As between the parties plaintiff and defendant an action or proceeding for foreclosure passes the mortgagor's title as effectually as a judicial sale, because it extinguishes his entire title and interest. All that is formally accomplished however, is the extinction of a right and the interposition of a perpetual bar against the parties foreclosed; the

12 Hill. Mort. 1. See Packer v. Rochester & S. R. R. Co., 17 N. Y. 283, 287 (1858); Goodman v. White, 26 Conn. 317, 322 (1857); McCormick

v. Wilcox, 25 Ill. 274 (1861); Weiner v. Heintz, 17 Ill. 259 (1855); Campbell V. Carter, 14 Ill. 286 (1853).

decree only professes to close a door which equity had before kept open, not to confer a right or to pass a title. It has been said for this reason that the foreclosing creditor by his action succeeds to nothing, acquires no estate, and purchases no right.' The decree merely extinguishes the mortgagor's equity of redemption, and does not affect a title superior to the mortgage. But a statute giving perfect titles to purchasers upon mortgage foreclosure sales does no injustice to general creditors, and is not necessarily contrary to the general principles of equity.

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Every foreclosure has a point of time at which the title to the mortgaged premises is transferred absolutely from the mortgagor and his subsequent lienors to a purchaser or to a party who sustains the relations of a purchaser to the premises, whether the foreclosure be conducted by action. and judicial safe, entry and possession, advertisement or otherwise. The principal object of a foreclosure is accomplished only when such a transfer has been effected. Other ends may also be sought, as a personal judgment of deficiency, but the extinguishment of the mortgage and the production of a perfect title is the first purpose of every method of foreclosure.

§ 2. History. The process of foreclosure has been coordinate in development with the law of mortgages. Some writers find traces of the principles of hypothecation, redemption and foreclosure among the early Israelites. But the civil law of the Roman lawyers is the earliest known system of jurisprudence in which the rights connected with pledges were fully and accurately defined.

CIVIL LAW DOCTRINES.-Pignus was the technical term for a pledge which passed into the possession of the creditor, and gradually came to be applied only to movables or chattels : while hypotheca referred to a pledge which continued to be held by the debtor, and was applied only to immovables or landed property. These were the two methods known to

1 Goodman v. White, 26 Conn. 317, 322 (1857).

? McCormick v. Wilcox, 25 Ill. 274, 276 (1861).

Cook v. Detroit G. H. & M. Ry. Co., 43 Mich. 349 (1880).

the Roman law for the transfer of property as collateral security. No title to the property passed. Failure of payment at the appointed time did not work a forfeiture. Principles of equity favored the debtor so that his misfortune. should not become the fortune of his creditor. A well regulated procedure or practice of foreclosure, founded upon notice to parties interested, open decrees of court and publicity of sale or entry, grew up with the law of pledges, so that the loss to both debtor and creditor would be the least possible'. The civil law of pignus and hypotheca is the root of the law of mortgages and of the procedures for foreclosure among all the Latin races of the present time.

COMMON LAW DOCTRINES.-The ablest historians are at variance as to whether the Anglo-Saxons recognized pledges of real property. The law of feuds and tenures was decidedly opposed to mortgages. The Norman conquest and the apportionment of the kingdom of England by the Conqueror rendered them practically impossible until the reign of Edward I., when tenures and alienations of land were greatly simplified.

With the later development of the common law and its doctrines of landed estates, two kinds of realty pledges came to be recognized. The vivum vadium contained a continuous right of redemption, and permitted the creditor to enter into immediate possession and to collect the rents and profits for the reduction and payment of the debt; the debtor could re-enter at any time on liquidation of the debt. This form. of mortgage never came into general use. The mortuum vadium was always made upon definite and exact terms of forfeiture; and if the conditions were not punctually kept, the title passed absolutely and forever from the debtor to the creditor. This form of landed security was extremely severe and often grossly unjust to the debtor. The spirit of the common law was inexorable, and allowed no redress to the unfortunate debtor. It firmly held that contracts of hypothecation with definite terms of forfeiture should be. enforced, and it allowed no remedy to restore the debtor to

1 Story's Eq. Jur. §§ 1005, 1009-1024.

his estate or to have the estate sold at public vendue to the highest bidder. But with the appearance of the courts of of chancery these severe rules were greatly modified and ultimately fell into entire disuse.'

GROWTH OF EQUITY.-The mortuum vadium is doubtless the root from which our modern mortgage has grown. Its severity and unjustness, however, rendered it odious and unpopular until the appearance of that new jurisdiction which was exercised by the learned chancellors of England. These jurists sought continually to engraft the enlightened and equitable principles of the civil law of mortgages upon the severe rules of the common law. It is believed that the first encroachments by the courts of chancery were in the reign of Queen Elizabeth; but their powers were not fully exercised until the time of James I. Great confusion resulted from these concurrent jurisdictions for a number of years, but the justness and equity of the decrees of the chancellors gradually came to be recognized by the courts of common law and were acquiesced in by them. The rule came to be fixed and settled as part of the law of the Kingdom, that "once a mortgage, always a mortgage," and that no mortgage could be enforced without a decree of the chancellors. The common law courts waived entirely their former exclusive jurisdiction over mortgages, and the "equity of redemption" became a fixed right in every mortgagor. To foreclose or extinguish this right, the earliest method used was entry and possession, and from it have been developed the various procedures and practices used in the several states.'

3. Methods of foreclosure.-There are four principal methods by which mortgages may be foreclosed in the United States, all depending upon equitable principles in their origin and proceeding upon equitable principles in their practice. 1. Foreclosure by entry and possession originally required the actual entry upon and possession of the mortgaged premises; this procedure has been greatly

1 Coote on Mortgages, 4 22.

Coote on Mortgages, 4-22; 4 Kent Com. 158.

assisted by the writ of entry, which is much in the nature of an equitable action, though nominally an action at law. Foreclosure by entry, however, is mainly confined to the New England and a few of the southern states. 2. Strict foreclosure, or foreclosure without a sale, was a procedure greatly used in England at one time, and its purpose was to perfect in the mortgagee an absolute title, instead of to obtain a decree of sale; the courts in most states recognize this method, but allow its use only in exceptional cases, owing to its severity upon the rights of the owner of the equity of redemption. 3. Statutory foreclosure, or foreclosure by advertisement, is a procedure provided in nearly every state by its legislature, all the steps in which are specifically prescribed by statute. Owing to its extreme technicality and insufficiency of remedy, it is seldom practiced where an equitable action is allowed. 4. An equitable action is now the almost universal procedure among the English-speaking races, for the foreclosure of a mortgage. So broad and comprehensive is the process of foreclosure by an equitable action, that a consideration of foreclosures with reference to that procedure, will also cover the subject where the procedure is by entry and possession or by strict foreclosure, so that attention need not be given separately to those two methods; while in statutory procedure special provisions are made as to each step. Where no provisions are made, equitable rules control. The subject of this work is thus reduced substantially to mortgage foreclosures by equitable action. Such variations as may exist in the other methods. will be noticed in their proper connections.

$ 4. Foreclosure by entry and possession. - The earliest procedure under this form of foreclosure required an open and visible entry and possession by the mortgagee or his agent, upon the premises in the presence of witnesses, but the present practice requires only a constructive entry. The purpose of the entry, whether actual or constructive, is to give notice to the mortgagor, and others interested, that the equity of redemption will be extinguished unless the debt secured is paid and the terms of the mortgage are fulfilled. Constructive entry is now generally made by recording