Pursuant to the judgment, bearing date the day of , and made in this cause, I have, in the presence of (or, after notice to), all parties concerned, settled an advertisement and particulars and conditions of sale, for the sale of the lands mentioned or referred to in the said judgment (or order), and such advertisement having, according to my directions been published in the (naming the newspaper or newspapers), once in each week for the weeks immediately preceding the said sale (or as the case may be), and bills of the said sale having been also, as directed by me, published in different parts of the township (town or city) of and the adjacent county and villages (or as the case may be), the said lands were offered for sale by public auction, according to my appointment, on the day of , by me (or by Mr. of , appointed by me for that purpose, auctioneer), and such sale was conducted in a fair, open and proper manner, when , of , was declared the highest bidder for, and became the purchaser of the same, at the price or sum of $ , payable as follows (set out shortly the conditions of sale as to payment of the purchase money).

All which having been proved to my satisfaction by proper and sufficient evidence, I humbly certify.

447. Objection to the sale shall be by motion to set aside the same; and notice of the motion shall be served upon the purchaser, and on the other parties and biddings shall be opened only on special grounds.

448. The purchaser may pay his purchase money, or the balance thereof, into court without further order; and after confirmation of the report on sale, upon notice to the party having the conduct of the sale, he may if he so desires obtain a vesting order; and when he is entitled to be let into possession, if possession is wrongfully withheld from him, an order against any party in possession for the delivery thereof to him may be made upon his application or upon the application of the vendor.

(p) For form of affidavit of auctioneer, see Bell and Hoyles, Practice Forms, no. 677; Holmested & Langton, Forms and Precedents, 2nd ed., no. 1048.

A report on sale, though only a report that there was no sale for want of bidders, is a report that may be appealed from and requires confirmation. And an order made by a local judge confirming such a report, while it was neither confirmed under rule 502 nor appealed from, and granting foreclosure in default of payment, was held to be bad (q).

Provision is also made by rule 478, already quoted, for payment of the purchase money into court to the credit of the action, and rule 479 provides:

479. The purchase money, when so paid, shall be applied and paid out of court in payment of what has been found due to the plaintiff and the other encumbrancers (if any), according to their priorities, together with subsequent interest, and subsequent costs.

If a purchaser, instead of paying the money into court, chooses to pay it to the encumbrancers, he does so at his own risk as to the claims of other persons, as, for instance, a claim to dower payable out of the surplus (r).

If the mortgagor makes the deposit for the purpose of having a sale instead of foreclosure, and the proceeds of the sale are more than sufficient to pay the plaintiff but are insufficient to pay the subsequent encumbrancers, the mortgagor is not entitled to a return of the deposit but it must be applied in reduction of the second mortgagee's claim (s).

Certain lands were sold under decree in an action upon a mortgage for an amount in excess of that due under the first mortgage. No mention was made in the decree or at the sale of any claims to which the sale would be subject, but it subsequently transpired that there was a large amount due for unpaid taxes. On a motion to distribute the money in court, the purchaser claimed that the amount of these taxes should be paid out of the fund in court. It was held that under the Land

(q) Robert v. Caughell, 1903, 6 O.L.R. 381. (r) Hyde v. Barton, 1880, 8 O.P.R. 205. (s) Gzowski v. Beaty, 1879, 8 O.P.R. 146.

Titles Act a purchaser takes title subject to unpaid taxes, and the sale therefore was subject to any amount due for taxes, and the purchaser was not entitled to be reimbursed in respect thereof (t).

It is provided by rule 483 as follows:

483. If the purchase money is not sufficient to pay what has been found due to the mortgagee (where the mortgagor or person liable to pay the debt is a defendant), he shall be entitled on an ex parte application, to an order for the payment of the deficiency.

Under this rule the plaintiff may obtain an order for payment of the deficiency by any defendant who is personally liable to pay (u), and may avail himself of the rule in order to obtain payment of the costs of the reference and sale and interest since the judgment at the contract rate (v). In other respects an order under this rule is unnecessary if the judgment contains, as is usually the case, an order for personal payment by any defendant who is personally liable.

Where a sale has been attempted and has proved abortive an order may be made in chambers for foreclosure. Formerly it seems that the mortgagor was usually allowed three months further time for redemption, but it has been held that the time is subject to the discretion of the court in view of all the circumstances of the case (w). Perhaps now by analogy to rule 489, one month will be the time allowed in every case (x).

Where a person having the conduct of a sale under an order for sale had been found to be a trustee, with a lien foradvances, it was held that his position as a trustee debarred him from the ordinary remedy of foreclosure which a mortgagee is entitled to after an abortive sale, but that after a sale by auction had been tried in vain the trustee was at liberty to make an offer on his own behalf, and that the court might in its discretion allow him to purchase (y).

(t) Canada Permanent Mortgage Corporation v. Martin, 1909, 2 S.L.R. 472.

(u) See chapter 23, Action on the Covenant, Sec. 221.

(v) Assuming that the mortgage provides for payment of interest at the contract rate after default. See chapter 29, Interest, Sec. 313.

(w) Scarlett v. Birney, 1893,15 O.PR. 283, and cases there cited.

(x) Holmested, Ontario Judicature Act, 4th ed., 1032.

A mortgagee instituted foreclosure proceedings under a mortgage, and on the application of one of the defendants an order for sale was made with leave to the plaintiff to bid. No one appeared to bid at the sale save the plaintiff's agent, who bid twenty-five cents, and the land was knocked down to the plaintiff for that sum. On an application to confirm the sale, the judge before whom the application was made refused to confirm. On appeal, it was held that having regard to the nature of the property, the amount bid and for which the land was knocked down was so puerile that the court was warranted in treating it as no sale, and refusing confirmation. It was also held, however, that no substantial bid having been made, the sale should be treated as abortive, and an order for foreclosure made (z).

A motion by the plaintiff in a mortgage action for an order for a new day and a new account, and to change the relief sought from sale to foreclosure, was opposed by the defendant upon the ground of a settlement or compromise after judgment, under which money had been paid to the plaintiff, the mortgagee. It was held that if the defendant mortgagor had made default in payments according to the agreement, the unmodified burden of the mortgage existed and was enforceable. Such an arrangement should be investigated in the master's office, and not by independent litigation.. The matter had passed into judgment, and the only contest was as to how much was due and payable in respect of the mortgage, having regard to the arrangement manifested in the correspondence and dealings subsequent to the master's report. It is foreign to the policy of the Judicature Act to contemplate new litigation in such a case as this (a).

(y) Hutton v. Justin, 1901, 2 O.L.R. 713, following Tennant v. Trenchard, 1869, L.R. 4 Ch. 537, at p. 546.

(z) Canada Permanent Mortgage Corporation v. Jesse, 1909, 2 S.L.R. 251.