A Treatise on the Law and Practice of Mortgage Foreclosure on Real Property: And of Remedies Collateral Thereto, with Forms, Together with the Essentials of the Law of Mortgages Including Redemption

Charles Hastings Wiltsie

Williamson Law Book Company, 1927 - Foreclosure - 1916 pages

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Title Page

Table of Contents

Index

CHAPTER XL	941

How sale may be set aside	945

Notice and parties	947

Time of making application to set aside sale and for resale	948

Setting aside sale and resale General principles	952

Discretion of court	953

When sale will not be set aside	954

Resale on failure to comply with bid	956

Same Surplus personalty where land so converted	1246

Same Claims must be liens on mortgaged premises	1248

Same Claims in favor of plaintiff	1249

Same Equitable distribution Claims liens on two funds	1250

Same Where claim of collateral assignee less than mortgage	1251

Same Several mortgages security for same debt	1252

Same Lien for attorneys fees on surplus	1253

Who entitled to surplus Owner of equity of redemption	1257

Resale on offer of more than bid	958

Fraud and misconduct	960

False statements generally	961

Same In case of railroad company	962

Same	963

Misleading statements and representations by referee or auc tioneer	965

No or few bidders	966

Inadequacy of price Setting aside sale for	967

Same Inadequacy complied with fraud or other misconduct	972

Defective notice	976

Defective title and prior incumbrances	977

Setting sale aside for benefit of infants	978

Miscellaneous Instances where sale set aside or sustained	979

Same	983

Same	984

Same	985

Estoppel and waiver	989

Terms imposed on setting aside sale Tender	990

Effect upon purchaser of order setting sale aside	992

Effect of setting aside sale by junior lienholder	993

Appeal from order setting aside sale or granting resale	994

Proceedings on resale	995

CHAPTER XLI	996

Same Effect of provisions in decree	998

Same	1005

Same Bona fide purchaser 1006	1011

Same After acquired title 1008	1011

Same Junior liens 1011	1011

Same Licenses and trusts	1012

Same Parol trusts	1013

Same General creditors of mortgagor	1015

Same Invalid mortgage	1016

Same Usury	1017

Same Purchaser at irregular or invalid sale	1018

Same Error in judgment Appeal Reversal	1019

Same Opening of default judgment Effect on title of pur chaser	1022

Same Community property	1023

Same Mortgaged succession	1024

Same Obligation of purchasers	1025

Execution and delivery of deed	1026

Requisites of sheriffs or referees deed	1027

Same What property passes	1029

Title of purchaser relates back to time of executing mortgage Reserving easement	1030

Time for redemption Effect on title of purchaser	1032

All emblements pass under referees deed	1033

Same Ice	1036

Same Timber right to	1037

Right of purchaser to possession	1038

Same Constitutionality of statute giving mortgagor posses sion during redemption period	1039

Rights of purchaser to rents	1041

Same During period of redemption	1045

Same Accounting for rents and profits	1046

Delivering possession of premises to purchaser	1047

Action at law and summary proceedings	1049

Possession obtained by summary process	1050

New York statute with reference to obtaining possession	1051

Writ of assistance When granted	1052

Writ of assistance How obtained Proceedings Notice	1054

Who is entitled to writ of assistance	1055

Against whom possession delivered	1056

Same Outstanding lease	1057

Writ of assistance improperly granted	1058

CHAPTER XLII	1060

Validity of power of sale	1062

Right to exercise power Breach of condition	1063

Same Recording of instrument and assignment	1065

Same Necessity of possession	1066

Revocation or suspension of power	1067

Foreclosure by advertisement where whole or part of debt otherwise collected	1069

Who may execute power Generally	1070

Same Where power of sale is a mere naked power	1072

Same Same Where power coupled with an interest	1073

Same Appointment and power of substituted trustee	1074

Duties of person to make and in making sale	1077

Same Sale must be in strict accordance with power	1078

Notice of sale	1080

Contents of notice of sale	1081

Same In New York	1082

Description of mortgage and record in notice	1083

Description of mortgaged premises in notice	1084

Stating amount due in notice	1085

Stating amount where only part of debt is due	1088

Signature to notice	1089

Personal service of notice Who entitled to	1090

Service on personal representatives	1092

Service of notice on wife or widow of mortgagor or his grantee	1093

Service of notice upon subsequent lienors	1094

Service of notice of sale How made	1095

Service of notice by mail	1096

Publication of notice Generally and miscellaneous	1097

Provision of mortgage as to nature of publication	1098

Same Paper or place of publication	1099

Same Time from first insertion	1100

Posting notices of sale	1101

Delivering notice of sale to county clerk His duty	1102

Objections to notice of sale	1103

Time of sale	1104

Terms of sale	1105

Sale in parcels	1107

Postponement of sale	1108

Enjoining sale	1110

Same	1112

Same Lands situated in another state	1113

Damages for wrongful injunction	1114

Same	1116

Same Miscellaneous persons	1117

Effect of sale Generally	1118

Same In New York The statute	1119

Sale firm and binding on all parties	1120

Effect of sale on omitted parties Rights of tenants	1121

Same Effect of liens and rights of third persons	1123

Same Right to rents and profits and to possession	1125

Validity and settling aside sale Defective proceedings Generally	1126

Same	1127

Same Inadequacy of price	1128

Same Fraud or misconduct of mortgagee or trustee	1131

Same No default or paid indebtedness	1132

Same Insanity of mortgagor or grantor	1133

Same Miscellaneous grounds	1134

Same	1135

Effect of void or avoided sale	1137

Affidavits of the proceedings	1138

Sufficiency of affidavits	1140

Amending affidavits	1142

Necessity of recording affidavits	1143

Effect of allidavits	1144

Necessity for deed Form Passing of title	1145

Same	1146

CHAPTER XLIII	1147

A severe remedy	1148

In what states not allowed	1150

Illinois doctrine and practice	1152

New York doctrine and practice	1154

Pleadings in a strict foreclosure	1156

Effect of a strict foreclosure	1157

909a Same Strict foreclosure against infants	1159

CHAPTER XLIV	1161

911a Same	1163

911b Same Discretion of court	1165

911c Same Exceptions to discretion of court	1166

Same In New York	1167

Same Where guarantor of mortgage deceased	1169

Same Prior mortgagee	1170

Same Subsequent incumbrancers	1171

Costs on two foreclosures against same property	1172

When costs not allowed to mortgagee	1173

Effect of excessive demand in the complaint	1174

Costs on appointment of receiver	1175

Who personally liable for costs	1176

Out of what fund costs payable	1177

Foreclosure under power Compensation and reimbursement of mortgagee or trustee	1178

Taxing costs and disbursements on foreclosure by advertise ment	1179

What disbursements allowed	1180

Expenses for search Unofficial search	1181

Fees of referee or other officer making sale	1182

Appeal from order fixing fees of referee to sell	1184

Same Who entitled to costs in surplus proceedings	1186

Disbursements in surplus proceedings	1187

Interest on costs	1189

Attorneys fee General right to allowance	1190

Same Discretion of court Inequitable or wrong foreclosure	1191

Same Provision for in instrument	1192

Same	1195

Same When stipulation for is usurious or void	1196

Same Same Construction of provisions	1197

Same Miscellaneous	1198

Enforcement of attorneys fees as against purchaser	1199

Allegation as to attorneys fees	1200

Amount of attorneys fees	1201

CHAPTER XLV	1204

Same In Florida	1207

Points in practice The complaint	1208

Same Allegation for personal judgment against grantee assuming payment	1209

Demand for judgment of discovery	1210

Same	1211

Same Contingent decree for deficiency	1212

When deficiency judgment may be docketed	1214

In whose favor judgment should run	1215

Right to deficiency judgment	1216

Same	1217

Same Personal liability of mortgagor	1219

Same What matters may be urged in defense to application for deficiency judgment	1221

Same Where no personal service of process	1222

Same No judgment of deficiency for installments not yet due	1223

Same Same Contract between the parties determines right	1224

Same Death of mortgagor	1225

Same Equitable mortgage or security deed	1227

Same Deficiency against assignor guaranteeing payment	1229

Same Deficiency against party or grantee assuming mortgage	1230

Decree should fix order of liability	1233

Deficiency How determined	1234

When judgment for deficiency becomes a lien	1236

Personal judgment where foreclosure denied	1237

CHAPTER XLVI	1239

Determination of right to surplus by judgment	1241

Character of surplus Personal or real property	1243

Same Mortgagor deceased Distribution of surplus	1244

Same Property owned by husband and wife in entirety	1259

Same Rights of widow Investment	1263

Same Prior incumbrancers or mortgagees	1264

Same Subsequent lienors Junior mortgagees	1266

Same Judgments	1268

Same	1270

Same	1271

Same Judgment by confession as an indemnity	1272

Same Judgment against partnership	1273

Same Liens attaching pendente lite	1275

Same Cestuis que trust	1276

Same Vendee	1277

CHAPTER XLVII	1279

Same Distribution of surplus by surrogate	1281

Same Where sale is by advertisement	1283

Same The application for surplus moneys Reference	1284

Same Notice Proceedings before referee	1285

The application for surplus moneys	1286

Parties to surplus money proceeding	1287

Powers of the referee	1288

Presenting proof of claim	1290

What claims may be litigated	1291

Extent of referees inquiry	1293

Right of claimant not filing notice to appear	1294

Opening and setting aside referees report	1295

Appeal from order for distribution	1296

CHAPTER XLVIII	1299

Right of mortgagee to retain possession until debt paid	1302

Results of foreclosure	1303

Foreclosure as payment of debt	1305

Effects of foreclosure and sale on title	1307

Conclusiveness of judgment and sale	1309

Effect on persons not made parties	1311

Effect on subsequent encumbrancers	1313

Effect upon rights of prior grantees or lienors	1314

CHAPTER XLIX	1317

Definition of redemption	1318

Origin of doctrine	1319

Nature and extent of right	1320

Reciprocal with right to foreclose	1322

An incident of every mortgage	1323

Same Exceptions to the rule	1325

Equity of redemption as an estate in lands	1326

Same A rule of property	1327

A favorite of equity	1328

Equitable and legal rights subject to	1329

Same Compelling redemption	1330

Agreement giving right of redemption	1331

Redemption by part owner Extent of right	1332

Same Remedy on	1334

Same Designating a shorter time	1336

Same Notice of intention to redeem	1337

Same Filing deed certificate or other papers under	1338

Same After foreclosure By creditor	1339

Two or more mortgages on one tract Redeeming from one	1340

Separate mortgages on separate tracts Redeeming from one	1341

Redeeming but part of mortgaged land	1342

When redemption allowed In general	1344

Same Omission of covenant to repay no bar to right	1345

Same On payment of mortgage debt	1346

Same By grantee	1347

Same Fraud and misrepresentation as ground for	1348

Same Unforeseen event as ground for	1349

Same After voidable foreclosure sale Sale to mortgagee	1350

Same Where interested person not party to foreclosure	1351

Same Where mortgagee takes possession on default	1352

When not allowed Generally	1353

Same In case of action in another court	1354

Same In case of appeal when	1355

Same In case of parol agreement	1356

Same In case of trust	1357

CHAPTER L	1358

Contracts waiving or restricting right to redeem Generally	1361

Same	1363

Same Evasion of equitable rule	1366

Same To particular time	1367

Same By contract after delivery of mortgage	1368

Same By transaction after delivery of mortgage	1370

Conveyance or assignment by mortgagee	1371

Sale of equity of redemption Effect on rights	1372

Payment after breach of condition Effect	1373

Extinguishment of right of redemption In general	1374

Same By foreclosure	1375

Same On sale under a power	1377

Same By action and sale	1378

Laches	1379

Statute of limitations	1382

Same When statute begins to run	1383

Same Disability	1384

Same Acknowledgment	1386

Same Tender does not revive	1387

Possession by mortgagee Presumption of foreclosure	1388

Same What is adverse possession	1390

CHAPTER LI	1392

Administrator and executor	1394

Annuitant cannot redeem	1395

Same For support	1396

Assignee of note given for land May redeem when	1398

Creditors may redeem when	1399

Same General creditors	1400

Same Attachment creditors	1405

Same From another creditor	1406

Defendant may redeem	1407

Grantor of lands mortgaged to secure debt of another	1408

Grantor in deed of trust	1409

Guardians may redeem	1410

Holder of legal estate may redeem	1411

Holder of interest in mortgaged premises	1412

Holder of bond to convey cannot redeem	1414

Same Where not made a party to the action of foreclosure	1422

Mortgagor and wife May redeem when	1425

Mortgagors Joint Redemption by	1426

Purchaser Subsequent purchaser	1427

Same Before foreclosure	1428

Same Pending foreclosure	1429

Same Redemption after foreclosure	1430

Same	1431

Same At execution sale	1432

Same At forecloure sale	1434

Same From sole heir	1435

Subagent May redeem when	1436

Sureties may redeem	1437

Tenant by the curtesy	1438

Tenant for life	1439

Tenant in common	1440

Tenant in tail	1441

Wife	1443

Wife joining in mortgage	1444

From whom redemption may be made	1446

CHAPTER LII	1448

Before maturity	1450

After maturity Before foreclosure	1451

Same Same When mortgagor remains in possession	1452

After foreclosure Generally	1453

Same After lapse of years	1454

Same Fixed by decree of the court	1455

Same Effect of a second foreclosure sale	1456

Same Computation of time	1457

Same By junior lienholder	1458

Same Receipt of rents and profits by mortgagee Effect on right	1459

Same Fraud Effect on redemption	1460

Same By court generally	1464

Same	1465

Same Disability of infancy imprisonment or insanity	1466

CHAPTER LIII	1467

Tender on redemption	1469

Same	1470

Amount payable to effect redemption General rules	1472

Same Before foreclosure	1473

Same After foreclosure and sale	1474

Same Same Where mortgage to secure further advances	1476

Same Same Where part only of debt due	1477

Same By mortgagor	1478

Same Same Where not made party	1480

Same By assignee of mortgagor	1481

Same Same Where not made a party	1483

Same By tenant in common	1484

Redeeming whole of mortgaged land	1485

Consolidation of claim Tacking	1486

Usurious and compound interest	1487

Payment for improvements	1488

Same Improvements by purchaser after foreclosure sale	1490

Repairs Allowance for on redemption	1492

Rents and profits Accounting for on redemption after fore closure sale	1493

Same By mortgagor or mortgagee in possession	1495

Taxes and assessments and disbursements	1499

Sums paid to protect title	1502

Allowance of attorneys fees	1503

Payment of costs of suit	1504

Errors in ascertaining amount	1505

CHAPTER LIV	1506

Right to assignment of mortgage	1507

Contribution Generally	1508

Same Where mortgaged land is sold in parcels	1509

Same By subsequent grantee	1510

Same Redemption without when	1511

Effect of redemption	1512

Bill to redeem Introductory	1513

Same Dismissal of Right to and effect	1514

Same Evidence	1515

Same Irregularities waived by	1516

Same Jurisdiction	1517

Same Multifariousness	1518

Same Same In action by grantee	1520

Same Statutory provisions	1521

Same Conveying wrong lot	1522

Same Overdue second mortgage	1523

Parties to action Parties plaintiff	1524

Same Parties defendant	1525

Same Action after foreclosure sale	1527

The decree Generally	1528

Same Time of redemption after decree	1530

Same Same Extension	1531

Same Where sold in parcels	1532

Same Sale not decreed	1533

Costs on redemption	1534

Copyright

Common terms and phrases

11 Paige Ch action affidavits allowed assignee attorney's fee Bank Barb chaser claim closure costs court of equity creditor debtor decree of foreclosure deed of trust default defendant deficiency judgment equity of redemption execution fore foreclose foreclosure by advertisement foreclosure sale gage grantee held Hun N. Y. interest invalid Iowa Johns land liable lien Loan Mass ment Minn mort mortgage debt mortgage foreclosure mortgage or trust mortgaged premises mortgaged property mortgagor N. J. Eq N. Y. Suppl Nebr notice of sale owner party payment person plaintiff power of sale prior proceedings purchaser Real Property Law record rents and profits resale secured sell sheriff sheriff's deed sold statutory strict foreclosure subsequent suit supra supreme court taxes tenant thereof tion trust deed usurious valid void writ of assistance

Bibliographic information

Title	A Treatise on the Law and Practice of Mortgage Foreclosure on Real Property: And of Remedies Collateral Thereto, with Forms, Together with the Essentials of the Law of Mortgages Including Redemption Volume 2 of A Treatise on the Law and Practice of Mortgage Foreclosure on Real Property: And of Remedies Collateral Thereto, with Forms, Together with Essentials of the Law of Mortgages Including Redemption, Charles Hastings Wiltsie
Author	Charles Hastings Wiltsie
Edition	4
Publisher	Williamson Law Book Company, 1927
Length	1916 pages

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