not been collected; and it is not a sufficient denial of an allegation in a complaint of foreclosure on such a mortgage that an execution has been issued and returned unsatisfied, to simply allege that such execution was not "duly" returned. St. Paul F. & M. Ins. Co. v. Dakota L. & Live Stock Co., 10 S. Dak. 191 (72 N. W. Rep. 460).

Sec. 613. Breach authorizing foreclosure-Failure to pay taxes or interest. Where a mortgage provides that "if said sum * ** is not paid when the same is due, and if the taxes and assessments * * * * are not paid,

* then said party of the second part shall be entitled to the possession of said premises," a default in the payment of taxes authorizes the mortgagee to treat the note and mortgage as matured. Johnson v. Irwin, 16 Wash. 652 (48 Pac. Rep. 345). Where a mortgage securing a note due in a specified number of years provides that it may be foreclosed if the debtor fails to pay the taxes for a given number of days, a failure to pay taxes within the specified time is a breach authorizing foreclosure, from which the debtor cannot be relieved where he has no excuse except mere forgetfulness or oversight. Arkenburgh v. Lakeside Residence Ass'n, 56 N. J. Eq. 102 (38 Atl. Rep. 297). Where a mortgage to secure the payment of several notes due at different times, interest thereon payable annually, stipulated that "if said sum or sums of money or any part thereof, or any interest thereon, is not paid when the same is due, and if the taxes and assessments of every nature which are or may be assessed and levied against said premises, or any part thereof, are not paid when the same by law are made due and payable, then the whole of said sum or sums, and interest thereon, shall, and by these presents, become due and payable," it is held that in order to authorize a foreclosure before the time stated in the notes, two conditions must concur, namely, default in the payment of a sum when due, and default in the payment of the taxes on the mortgaged premises when due. Lewis v. Lewis, 58 Kan. 563 (50 Pac. Rep. 454). The right to foreclose for the entire indebtedness, on account of a default in the payment of interest, given by the terms of a mortgage, may be waived by accepting payment of such interest after default. Mason v. Luce, 116 Cal. 232

(48 Pac. Rep. 72). A mortgagee having the right to declare the debt due and foreclose, upon the mortgagor's delinquency in the payment of any installment of interest, does not waive this option by his failure to exercise it at the first opportunity. Industrial Land Develop. Co. v. Post, 55 N. J. Eq. 559 (37 Atl. Rep. 892). The right to foreclose a mortgage given to secure two notes, on account of a default in the payment of interest, is not postponed by the granting of an extension of time for a consideration in which to pay one of the notes. Germond v. Hermosa Ice Co., 9 S. Dak. 387 (69 N.W. Rep. 578).

Sec. 614. Effect of tender after default. When a mortgage securing payment of several bonds is in process of foreclosure, an offer to pay that one of the bonds which is held by the complainant, and the costs of the pending foreclosure to date, accompanied by a demand for an assignment of the bond, is not such a tender as will stop the running of interest or the accruing of costs. Whittaker v. Belvidere Roller-Mill Co., 55 N. J. Eq. 674 (38 Atl. Rep. 289). In the case of McClung v. Missouri Trust Co., 137 Mo. 106 (38 S.W. Rep. 578), Division two of the supreme court of Missouri, after a review of numerous cases say: "Whatever the law may be

elsewhere it seems to be settled in this state that a tender of debt and interest secured by mortgage made after default destroys the mortgage lien." In a subsequent opinion by this court, in banc, in the case of Hudson Bros. Com. Co. v. Glencoe Sand & Gravel Co., 140 Mo. 103 (41 S. W. Rep. 450; 62 Am. St. Rep. 722), it is held that in an action of ejectment by one claiming as a purchaser at a sale made under a deed of trust after default, it is no defense to allege a tender of the debt after such default. In this case the court refers to the former opinion and seem to regard it as holding just the opposite to the quotation given above, and after an elaborate review of the cases they state their conclusion as follows: "Our opinion is that a tender of the amount due on a mortgage debt made after default, should not, on principle, discharge the mortgage and should have no greater effect on the security than it has on the debt itself, and that the result will be the same whether the mortgagee holds the legal title in trust or as a mere security."

Sec. 615. Foreclosure proceedings-General principles-Practice. The possession of a mortgage and the notes which it is given to secure, although held for collection, is sufficient to sustain one's right to maintain an action to foreclose. Woodward v. Brown, 119 Cal. 283 (51 Pac. Rep. 2; 63 Am. St. Rep. 108). An allegation that a mortgage was executed and delivered, is broad enongh to include the signing, sealing, attestation, and acknowledgment; and when a mortgage is admitted in evidence, the certificate of acknowledgment goes with it. Laurent v. Lanning, 32 Or. 11 (51 Pac. Rep. 80). A real estate mortgage duly witnessed and acknowledged, is, of itself, prima facia evidence that the mortgagor signed said mortgage. Greely State Bank v. Line, 50 Neb. 434 (69 N. W. Rep. 966). A certificate of acknowledgment attached to a mortgage is prima facia evidence of its due execution; and the recitals in a mortgage are sufficient to show an indebtedness, and also to prove prima facie, the execution of the obligation, the payment of which it is given to secure. Andrews v. Reed, Kan. (48 Pac. Rep. 29). Where a defense is based upon alterations claimed to have been made in the mortgage it is admissible in evidence of its execution, and the burden of proof is upon defendant to show the alterations claimed. Cosgrave v. Fanebust, 10 S. Dak. 213 (72 N. W. Rep. 469). The holder of a mortgage has a right to a second foreclosure as to parties having an interest in the premises who were omitted from the first foreclosure. Such second foreclosure does not affect the rights of the mortgagor who is a party to the first foreclosure and he need not be made a party to the suit. Morey v. City of Duluth, 69 Minn. 5 (71 N. W. Rep. 694.) Where a decree of foreclosure is void on account of the failure of the plaintiff to make certain persons parties thereto, he may maintain a second action to foreclose, it appearing that he exercised due diligence in ascertaining the necessary parties to the previous action. Brackett v. Banegas, 116 Cal. 278 (48 Pac. Rep. 90; 58 Am. St. Rep. 164). Where a mortgagee is authorized to pay taxes in case of the mortgagor's failure to do so and include such payment in his lien, it is proper to include the amount of money so paid by the mortgagee in a decree of foreclosure in his favor,

Farwell v. Bigelow, 112 Mich. 285 (70 N. W. Rep. 579), including moneys paid after the bill of foreclosure is filed but before the decree is rendered. Jehle v. Brooks, 112 Mich. 131 (70 N. W. Rep. 440). Where a son to whom land had been deeded by his parents, gave them a mortgage thereon to secure his bond in a specified penal sum, conditioned to be void if he paid them a certain portion of the proceeds of the premises and furnished them certain items for their support, it is held that upon foreclosure of the mortgage, recovery is limited to the amounts which the son failed to pay according to the contract. Heidtke v. Krause, 97 Wis. 118 (72 N. W. Rep. 351). Where a complaint alleges that the defendant holds some lien the nature of which is unknown to the plaintiff, but which is junior to the plaintiff's lien, and the defendant denies this allegation and files a cross bill to foreclose a mortgage which was not recorded in time, but which is alleged to be prior to the plaintiff's mortgage, it is held that the determination of the priority of the liens was within the issue. Schmidt v. Zahrndt, 148 Ind. 447 (47 N. E. Rep. 335). Particular evidence examined and held to authorize a decree of foreclosure. Greenman v. Swan, 51 Neb. 81 (70 N. W. Rep. 504). Ga. Laws 1887, p. 64, construed and applied-jurisdiction in actions for foreclosure. Block v. Allen, 99 Ga. 417 (27 S. E. Rep. 733). Ky. Civ. Code, §§ 62, 65, appliedjurisdiction of action to foreclose mortgage. Shields v. Yellman, 100 Ky. 655 (39 S. W. Rep. 30). Mass. Pub. Stat., ch. 181, § 1, construed and applied-three years' possession as a condition of foreclosure by entry. Long v. Richards, 170 Mass. 120 (48 N. E. Rep. 1083; 64 Am. St. Rep. 281). N. Y. Code Civ. Proc., § 3253, construed and applied-additional allowance of costs. Waterbury v. Tucker & Carter C. Co., 152 N. Y. 610 (46 N. E. Rep. 959). S. C. Code Civ. Proc., § 267, applied-reference to referee to ascertain amount due-effect of inconsequential errors in calculation. Johnson v. Masters, 49 S. C. 525 (27 S. E. Rep. 474).

Sec. 616. Complaint in foreclosure proceedings. A complaint to foreclose a mortgage given to secure a note for $30,000 sufficiently avers the amount of the mortgage debt, where it alleges that the actual amount of indebtedness was

and is $12,500. Savings Bank v. Asbury, 117 Cal. 96 (48 Pac. Rep. 1081). Where a complaint seeking to foreclose against a grantee who assumed a mortgage debt sets out the covenant of assumption, it must clearly allege that such covenant referred to the mortgage sought to be foreclosed. Clifford v. Minor, 67 Minn. 512 (70 N. W. Rep. 798). A complaint in foreclosure need not define the nature of the interest which the defendants have in the mortgaged estate, when the peculiar nature of this interest is unimportant to the relief sought. Doremus v. Dunham, 55 N. J. Eq. 511 (37 Atl. Rep. 62). Where a complaint to foreclose a mortgage by the equitable owner of bonds secured by it was insufficient at the time of its filing because it did not aver that the mortgage had matured, it cannot be cured by an amendment averring supplementary facts not existing at the time of the filing of the bill. Scheerer v. Agee, 113 Ala. 383 (21 So. Rep. 81). Applying Neb. Code Civ. Proc., §§ 850, 851, it is held that whether any proceedings at law has been had for the recovery of a real estate mortgage debt, or any part thereof, and whether such debt, or any part of it, has been paid, are essential facts, which must be averred in the petition filed to foreclose such mortgage; and unless the petition contains such averments, it will not state facts sufficient to entitle the plaintiff to the relief he demands. Bing v. Morse, 51 Neb. 842 (71 N. W. Rep. 712). Particular complaint to foreclose against a deceased mortgagor, held sufficient under S. C. Const. 1868, art. 5, § 3. Rutherford v. Johnson, 49 S. C. 465 (27 S. E. Rep. 470).

Sec. 617. Parties to foreclosure proceedings. A person to whom part of the premises have been conveyed is a necessary party. Woodward v. Brown, 119 Cal. 283 (51 Pac. Rep. 2; 63 Am. St. Rep. 108). A decree foreclosing a mortgage upon a homestead is void where the wife of the mortgagor is not made a party. Brackett v. Banegas, 116 Cal. 278 (48 Pac. Rep. 90; 58 Am. St. Rep. 164). Upon foreclosure of a purchase money mortgage, a prior judgment creditor claiming title under a previous execution sale, is a proper party defendant. Bisbee v. Carey, 17 Wash. 224 (49 Pac. Rep. 220). The officers of a corporation mortgagor are not necessary or proper parties. Johnes v. Outwater, 55 N.