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Entpred ncforcling to Act of tlic Piiiliiiiiiciit ,aiijes, and to Air. A. Bedford-Jones, P,arrister-at-law, who veritied the authorities cited. TABLE OF CONTENTS. PUKPAOE ^ " TAltl>K OK C'ONTEXTS '^ TaMLE ok AlUMlEVIATIONS ^^^ Tahle ok Cases ^x^' Tahle ok Statutes and Ki'les Ixv PART I. THE CONTRACT OF MORTGAGE. CHAPTER I. Dekixition, Nature axi> Ixcidexts ok a Moktgage. i. Definition ii. Nature and Incidents of a Mortgage . 6 CHAPTER II , KiXDs OK Mortgage. Section I. Legal Mortga(jes 10 ' Section II. E(iUiTAHLE Mortgages: i. Mortgage of the Equity of Redemption 15 ii. Agreement to give a Mortgage 16 iii. Equitable Mortgage by Deposit of Title Deeds. . . 19 X TAULE OF ( ONTENTS. CHAPTER III. Special Kinds of Mortgage. Section' I. MOKTOAGE OF LEASEHOLD 21 Section II. PjCilding Society MoimiAOEs . . . 28 CHAITER IV. Who MAY HE MORTGAGOH ANI> MORTGAGEE M2 PART II. RKJHTS AND LIABILITIES OF THE MORTGACJEE. CHAPTER V. Rights of Mortgagee Generally as CHAPTER VI Distress. Section I. Form and Effect of Proviso : i. Form and Effect of Proviso 47 ii. Attornment Clause 40 TAHLE OF CONTENTS. XI Section II. Limitations of the Uhjht of Distress: i. To tlie Goods of the Mortgaj,'or ;j« ii. Limited to Goods not exempt from Seizure under Kxecution ^^ iii. Limited to six Years' Arrears as between the Parties, and one Year's Arrears as a<,'ainst Credi- tors ■ •i^ CHAPTER Vri. Action on the Covenant for Payment, Section I. Generally ^'•'* Section II. Who may Sue ano he Sued: i. Who may Sue 6*^ ii. Wlio may be Sued '^•'^ Section III. When the Rkjht to Sue arises . 78 Section IV. What the Mortg.voee is Entitled to Recover. . . 8.5 CHAPTER VIII. Bar of Action on the Covenant by Acts of the Parties ^7 XII TAIILK <»r CONTKNTS. CHAITKU IX. Limitation uf Actions kou Kk<'ovkiiv ok MouniAtiK MoNKVS. Section 1, Action on tiik Covknant ffT Suction II. Action to Ufxovku the Monev out of the Land. . 101 C^HAFTKR X. Intekest. i. IntoroHt Genenilly . . , 107 ii. Rato of Inti^ivst 108 iii. Interest after Default 110 iv. Increased Rate; after Default 115 V. Compound Interest 118 CHAPTER XI. Fire Insurance 120 CHAPTER XII. Receiver 132 CHAPTER XIII. Fixtures • 135 TAMLK <»K CONTKNTS. xiii CHAITKl? XIV. KHiHTS A\l» LlAIULITIES OK MoimiAKKK IN l'(>SSi:s->l< .N. 141 1. ii, iii. iv. V. vi. vii. viii, ix X. ciiArrKU XV. Sam; rxDKH l*<>\vi:i{ <>k Sai-k. ()n;,'iii imd Dcvclopiiicnt ol' Power of Sale I ')H Form ol" I'ower of Sale '* ' Still utoiy Power of Sale I<»4 Kxeicise of Power of Sale 1" • Noliee of Exerclsin;; Power of Sale 17(» ("oiK'iirrent Proceedin^^H by Mort<,'a<,'ee I«4 Coiuluet of Sale '«<» Mort*''aj,'ee exereisiii*,' Power of Sale may not Pnrelmse ^'2 Conveyance after Sal«' \nuler Power U>o Applieaticjn of Pioceeds of Sale 2()1 !i CHAPTKH XVI. KtUtECLOSUHE OK SALE. Section J. (Jenehal Pkincii'LEs 205 Section II. Action for Foreclosure ok Sale: i. Morti;a<;ee entitled to Foreclosure or Sale. 208 XIV 11. 111. iv. V. vi. vii, viii. ix. X. xi. xii. TAItLE OK COXTEXT.S. PiirtioH to tlio Action 213 (if) PlaiiitiHs 231 {It) ()ri CHAPTER XXVII. Redemption. i. When tho Ri vi. .Aetion ol" Redemption '^72 CHAPTER XXVIIL Limitation of Actions for Redemption -^7(5 CHAPTER XXIX. DiSCHAUCE AND RECONVEYANCE ''^^^'> CHAPTER XXX. llKillT OF MoUniAUOIl TO AsSKiNMENT OF MOUTO.VC.E 400 CHAPTER XXXI. RHiHT OF MoHT(JA(JOR TO INDEMNITY "^Oii CHAPTER XXXII. RlOMT OF MoRTOAC^.OR TO AN ACCOUNT 4 I 1 TABLE OF CONTENTS. XVli PART V. RKJHTS AND LIABILITIES OF THOSE CLAIMIN(5 UNDER THE MORTGAGOR. CHAPTER XXXIII. Rights of Purchasers of the Equity of Redemp- tion 418 CHAPTER XXXIV. Rights of Executors, Administrators, Heirs and Devisees of Mortgagor 426 CHAPTER XXXV. Rights of Execution Creditors of Mortgagor. . . 480 CHAPTER XXXVL Rights of a Dowress in Mortgaged Lands 436 TABLE OF ABBREVIATIONS. A. & K. Adolphns and Ellis Q- B. 18:J4-1841 All. (New Bruns.) Allen, New Brunswick Sup. Ct. 1848-1871 Anibl Ambler Chy. m7-1783 Anst Anstruther Exch. 17921794 App. ('as. Law Reports, House of Lords and Privy Council, Appeal Cases 1875-1891 Atk Atkyns ^hy. 173(i-17r)5 B H. & Ad. Barnewalland Adolphus K. B. B. & Aid Barnewall and Alderson K. B. B. & B Ball and Beatty Irish Chy. ji. & c Barnewall and Cresswell K. B. B.C.C Brown, Reports of Cases Chy. BO.R British Columbia Reports Sup. Ct. B_ & S... Best and Smith Q- B. Beav. Beaven Rolls Ct. Bing Bingham <^^- P- Bing. N.C Bingham, New Cases C. P. Bli. N.S Bligh, New Reports H. L. Brod. & B Broderip and Bingham C. P. Bunb Bunbury Exeh. Burr Burrow K- B. 1830- 1817- 1807- 1822- 1778- 1867- 1861- 1838- 1822- 1834- 1827- 1819- 1713- 17.o6- 1834 1822 1814 183(> 1794 1870 1866- 1834 1840 183T 1822 1741 1772 Q B. Common Bench ("■ P- C HNS Common Bench, New ^ •' • Series C.P. & Ex. Ch. Q,\j,.), Canada Law Journal Clj/i" Canadian Law Times CP Common Pleas Q &p Carrington and Payne Com. Law Q p I) Law Reports, Common Pleas Division C.S.N.B Consolidated Statutes New Brunswick C.S.U.C Consolidated Statutes, Upper Canada Cii Law Reports, Chancery Appeals C1j_ Co. Cases in Chancery (;>}, I). Law Reports, Chancery Division Cli. Kep Reports in Chancery 1845 1856 1865 1881 1823 1875 1856 1865 1841 •1881 1865 1660 1875 1616 1875 1693 ■1891 ■1G88 TABLE Oh' AmiKEVIATIONS. Chy. ('h. Grant, Chaucery Chambers, Upper Canada and Ontario 18r)H-1872 Cl.&F Clark and Finelly H. L. 1831-184(i Coll. CoUyer Chy. 1844-1840 Com Comyns K. B., C. P. & Exch. 1696-1740 Con. & Law. Connor and Lawson Chy. 1841-184:$ Cox Cox, Cases in Equity Chy. 1783-179(i Cr. and.! Crompton and Jervis Exch. 1830-1832 D n. &C. Deacon and Chitty Bankruptcy DeG.F. & J De Gex, Fisher and Jones Chy. App. DeG. «& J. De Gex and Jones Chy, DeG.J. & S De Gex, Jones and Smith Chy, De G.M. & G De Gex, Maonaghten and Gordon Chy DeG. & S De Gex and Smith Chy Doug. Douglas Dr. & Sm Drewry and Smale Chy. Dr. & Wal Drury and Walsh Chy. Dr. & War Drury and Warren Chy. Drew Drewry Chy. App. App. App. App. ..K. B 1832- 1835 1859- 1862 1856- 18.'J9 1862- 1865 1851- 1857 1846- 1852 1778 ■1785 1859 ■1866 1837 ■1841 1841 -1843 1852 -1859 E. & A. Grant, Error and Appeal (Upper Canada) 1846-1866 E. & B Ellis and Blackburn Q. B. 1852-1858 E.B.&E Ellis, Blackburn and Ellis Q. B. 1858 E. & E Ellis and Ellis Q. B. 1858-1861 East East K. B. 1800-1812 Ed Eden Chy. 1757-1766 Eq. Equity Reports Chy. 1853-1854 Ex. I Exchequer Reports Exch. 1847-1856 Exch J Ex. D Law Reports, Exchequer Division 1875-1880 f Freem Freeman K. B. & C. P. 1670-1704 G Giff Giffard Chy. 1858-1865 Qf Grant, Upper Canada and Ontario.Chy. 1849-1881 H H. & C. Hurlstone and Coltman Exch. 1862-1866 H.L. House of Lords H.L.C House of Lords Cases 1847-1866 H. &M Hemming and Miller Chy. 1862-1865 TAIiLK OK AIMmEVIATlOXS. XXI H. & N lliirlstone and Norman Exch. iar)0-lH(i'_' Ha Hare Chy. 1841-1853 How. Howard, Practice Reports, New York 1H44-1HH4 I.U.C.Ij The Irish Ueports, Common Law Heries.. 18G7-1H7K I.U.E(i The Irish Reports, Equity Series 1867-1878 111. Illinois Ueports I8;{'J Ir. Ch. Irish Chancery Ueports 1850-18(50 Ir.L.R Irish Law Ueports Q. B. & C. P. 1838-1850 .T ,1. & La T. Jones and La Touche Chy. 1844-184<) ,). & W Jacob and Walker Chy. 1819-1821 Johns Johnson Chy. 1858-1800 K. &,.) Kav and Johnson Chy. 1854-1858 Kee Keen Uolls Ct. 183G-1838 Kerr (New Bruns.)Kerr, New Brunswick Supreme Ct. 1840-1848 L.J. Cli Law Journal Chancery 1832 L.j.K.B " King's Bench 1832-1837 L.J.Q.B " Queen's Bench 1837 L.U.C.P Law Reports, Common Pleas 1865-1875 L.R.Eq Law Ueports, Equity 1865-1875 Li.K. Ex Law Reports, Exchequer 1865-1875 L.U.H.L Law Ueports, English and Irish Appeals 1865-1875 L.R. Ir Law Ueports (Ireland) 1878-1893 L.R.p.C Law Ueports, Privy Council Appeals 1865-1875 L.T Law Times 1843 L.T.N.S Law Times Ueports, New Series 1859 M M 1). & l>eG Montague, Deacon and De Gex Bankruptcy 1840-1844 M. & G. Manning and Granger C. P. 1840-1845 M. & W. Meeson and Welsby Exch. 1836-1847 Mac. & G Macnaghten and Gordon Chy. 1849-1851 Madd Maddock Chy. 1817-1829 Man.R Manitoba Law Reports 1884 Mass Massachusetts Reports 1804 Me Maine Reports 1820 Mer Merivale Chy. 1815-1817 Mod Modern Reports.Common Law and Chy. 1660-1702 Moll".'"Z'.' Molloy Chy. 1827-1828 Moo Moore C. P. and Exch. 1817-1825 XXll TAHI.K OF AHUKEVIATIONS. Moo. P.O. Moore, Privy Council 1836-1862 My.& Cr. Myhie ami Craig Chy. 1835-1840 My. & K Mylneand Keen Chy. 18312-1835 N.B. Eq New BnuiHwick Equity Keports 1894 X..I.L. R New Jersey Law Keports Com. Law 1790 X.S.K Nova Scotia Law Keports Hup. Ct. 1875 N.VV.T.H North-West Territories Kepovts 1890 N.y. New York Keports Ct. of Appeals 1847 01(1. (N.S.) Oldri^'ht, Nova Scotia Sup. Ct. 1860-1866 Out. Ontario Keports 1^81 Ont. App Ontario Appeal Reports 1876 P I\R Practice Reports (Upper Canada and Ontario) 1^50 P. Wms. Peere Williams K. B. & Chy. 1695-1735 Peake Ad. Ca Peake Additional Cases K. B. 1795-1812 Penn Pennsylvania State Reports Phill Phillips <^liy Price 1845 1841-1849 Pi-ice! Exch. 1814-1824 g.B Queen's Bench Reports 1841-1852 Q.B.D Law Reports, Queen's Bench Division ... 1875-1891 . ' X£' R The Reports 1893-1895 R.C Ruling Cases " K. &J.I)ig Robinson and Joseph, Digest Upper Canada and Ontario R.R Revised Keports R.S.B.C Revised Statutes British Columbia R.y.C Revised Statutes Canada R.S.M Revised Statutes Manitoba R.S.N.S Revised Statutes Nova Scotia R.S.O Revised Statutes Ontario Rep t Finch. ..Reports of the time of Finch Chy. 1673-1680 Russ Russell Chy. 1826-1829 Russ. (N.S.) Russell, Nova Scotia, Equity Decisions.. 1S73-1882 » Sim Simons Sim.N. S. Simons, New Series. Chy. 1820-1852 ..Chy. 1850-1852 TAMLE OF AHUREVIATIONS. xxiii Sim. &St Simons and Stuart Chy. 1822-1820 Sm. & n Smale and Giffard Chy. 1852-1858 Swanst Swanston Chy. 1818-1819 T.K Term Reports, ovDiirnford and East. K.B. 1785-1790 U U.C.C.P Upper Canada Reports C. P. 1850-1882 U.C.Jur Upper Canada Jurist 1844-1848 U.C.L.J.O.S Upper Canada Law Journal, Old Series.. 1855-1804 U.C.O.S Upper Canada Reports, Old Series K. B.& Q. B. 183:}-1844 U.C.R. Upper Canada Reports Q. B. 1844-1882 V. & B Vesey and Beams Chy. 1812-1814 Ventr Ventris K. B. & C. P. 1068-1691 Vern Vernon Chy. 1080-1718 Ves Vesey, Junior Chy. 1789-1810 Yes. Sen. Vesey, Senior Chy. 1746-1755 W ..Weekly Notes 1860- Weekly Reporter 1832- W.N W.R Wm. Bl William Blackstone 1746-1780 Y Y. & C.C.C Younge and Collyer Chy. 184l-184:{ Y. & C. Ex Younge and Collyer Exch. 1834-1842 Y. & J Younge and Jervis E.xch. 1826-1830 The Englisli Law Reports beginning with 1891 are cited as follows : [189_] A.C Houseof Lords and Privy Council Appeals 1891 [189_] Ch Chancery Division 1891 1^189 — ] Q.B Queen's Bench Division 1891 [189_] p Probate Division 1891 TABLE OF CASES. CASE. DATE, Abel V. Ileathc'ote (1793 Abell V. Morrison (1H90 Abbott niul Medcalf, Re (1891 Abbott V. Stratten (184() Ackroyd v. Mitchell (1800 Adams v. Aiigell (1877 Agency Company v. Short (1888 Aikinsv. Blain (1867 Alden v. Foster (1842 Aluerson v. Elgey (1884 Alderson v. White (1858 Aldous V. Hicks (1891 Aldrich v. Canada Permanent 1 (-laqc Loan and Savings Co. J ^ Aldrich v. Cooper (1803 Alison, lie, Johnson v. Mounsey. (1879 Allan V. McTavish (1878 Allcard v. Skinner (1887 Allen V. Edwards (1873 Allenby v. Dalton (1835 Alliance Bank v. Broom (18G2 Ames V. Mannering (1859 Ancaster, Duke of, v. Mayer (1785 Anderson v. Henry (1898 Andersou v. Hanna (1889 Anderson v. Stevenson (1888 Angel V. Smith (1804 Anon (1821 Anon (1853 Anon (1876 Arbiithnot v. Bunsilall (1890 Archbold v. Bldg. & Loan Assn. (1888 Archer v. Severn (1886 Ardagh v. Wilson (1867 Ashtou v. Corrigan (1871 Ashworth v. Lord (1887 KEKKKENCE. I'AUE. 4 B.C.C. 277 191 19 Ont. 669 302 20 Ont. 299 180, 434 3 .1. & L. 603 16 3 L.T.N.S. 236 137 5 Ch. 1). 634 323, 324, 421, 422 13 App. Cas. 793 272 13 Gr. 646 133 5 Beav. 592 254 26 Ch. D. 567 401 2 DeG. & J. 97 5 21 Ont. 95 91, 92,93, 354, 355 f 27 Ont. 548 Kg , , „ 1 24 Ont. App. 193 / ^^^' ^^''' '''" 8 Ves, 382 422, 423 11 Ch. I). 284 180 2 Ont. App. 278.99. 101, 104, 202 36 Ch. I). 145, 186 383 254 5 42 L..T. Ch. 455 5 L.J.K.B. 312 2 Dr. & Sm. 289 19 26 Beav. 583 102 f 1 C.C. 454.. ■» 118R.C. 176 ; *-" 29 Ont. 719 56 19 Ont. M 167 15 Ont. 563 180, 229 9 Ves. 335 143 6 Madd.lO 161 4 Gr. 61 254 W.N. 53 233 62 L.J. 234 114 15 Ont. 237 Ill, 112, 358 IChy.Ch. 389 255 L.R. 13 Eq. 76 160 36Ch.D.545 145,155,289 XXVI TAIILK OF TASKS. ("AKK. I>ATK. HKKKKF.NCK. I'AOK. Asthiiry V. AKtlMiry [1M!»H] J Ch. Ill 108 AHtioy V. MillcH (IH'JT) 1 Sim. '2W, 341 322 AiiHtin V. Storoy (1K(i:t) I(t (ir. ;i(»(» i:)(», i:il .\ii«toii V. Moulton (I8(l(!) II.(.'.(;.I'. 318 330 B nnckhouHo v.Clmrltoii (IH7H) Uncoil V. Uici' liCwiH& Hon (1H!>7) liiiKimll V. Viiliir (1879) Hiiiit-y V. Al.rahiim (184!)) Hiiilf-y, AV, Bailey v. Bailey (1879) Bailey v. Barnes [18!)4] Baker v. Oray (1875) Baker v. Forest City (18!)7) Baker v. Diiwharn (187'J) Baker v. VVetton (1845) Bald V. Tlioinpson (1809) Balfe V. Lord (184'J) Bank of New South Wales v. O'Connor (188!)) Bank of .Montreal v. Miinro . (18(i4) Bank of Upper Cainidav. BottrolT ( I Wil.' ) Bank of r',K)r Canada v. Seott (1858) Bank - . Toronto v. Irwin (1881) Bi'.KH V. VVhittal (1847) Banner v. Berridge (1881) Barclay, A'.r jxirlr, iu re .loyce....(1874) Barham v. Karl of Tlianet (1834) Barker v. Ecdes (1870) Barker V. Eecles (1H71) Barnes v. liacster (1842) Barnes v. Glenton [1899] Barnhart V. Greenshields (1853) Barrett v. Hartley (186G) Barron v. Martin (1815) Barry v. Anderson (1891) Barry v. Harding (1844) Bartlett v. Jull (1880) Bartletf v. Kees (1871) Barton v. Bank of New Sonth Wales (1890) Barwick v. Barwiek (1874) Baskerville v.Otterson (1873) Bates V. Brothers (1855) Bates V. Hillcoat (1852) Bath, Ex parte, hi re Phillips (1883) 8Ch. I). 444 200 33 C.L.J. (i80 137 12 Ch. I). 812 143 14 li.T. 219 Q.B 160 12 Ch. 1). 268 34 1 Ch. 25 198, 309 1 Ch. 1). 491 316 f 28 (hit. 238 \ \ 24 Ont. A]>\>. 585 j 30 19 Or. 113 445 14 Sim. 426 381 16 Gr. 177 213 f 2 Dr. & War. 480 1 .,„„ \ 18 U.C. 481 / -"" 14 App. Cas. 273 288, 289, 366 23 r.C.K. 414 297 8 U.C.L..I. (O.S.) 328 254 6 Gr. 451 210, 212 28 Gr. 397 89 1 DeG.&S. 536 18 18 Ch. I). 254 358 9 Ch. 570 190 3 My. & K. 007, 622 419 17 Gr. 277 424 18 Gr. 440 326 1 Y & C.C.C.40I 285 1 Q.B. 885 97, 101 9 Moo. P.C. 18 5 L.R. 2 Eq. 789 86 19 Ves. 327 377 18 Ont. App. 247 166 1 J. & LaT. 475 410,422 28 Gr. 140. ...176, 177, 180, 200 L.R. 12 Eq. 395 254 15 App. Cas. 379 5 21 Gr. 39 271 20 Gr. 379 336 2 Sm. Sr G. 509 310 16 Bea- . 139 255 27Ch. D. 509 28 TAULK OK f'AsES. XXVll CASK. HATK. hiittfti, Pronitl iV Scott V. Diirl- iiKiiit h I liirlKMir ( 'oiMiiiiHsioiici'Hl I H!H) ) Hoiitty V. Kit/.simmotiH (18l>:i) KtMitty V. O'Connor (IKH4) Bentty V. Hliiiw (1«H(5) Monty V. (iri'jjory (1H!)7) lit'HviH V. Mii>,'nirc (IHH'J) Hecher v. VVohh (lK7i)) Meek v. MotTult ' (IH70) lifck V. I'icrfc (ISSfJ) Bofkfonl V. KfinLlo (1H2'J) ileiidoc, lif, UowiiPH V. Cottiini. [IH!):(] B»»ekiniiii v. .liirviH {1H47) Boor V. Fonkos (IHHU) Beevor v. Luck (1807) Bell, Itc, Lake v. Boll (1880) Boll iV Co. V. Antwerp, liomlon & Brazil Lino [18'J1] Boll V. Blinks (1H41) Boll V. Carter (IS.'jIJ) Boll V. Sunderland Bldg. SociotynKH:)) Bell V. Walker (1H7:{) Bellamy v. Badf-orow (IHiKi) Bonnott v. Almrrow (IHOII) Bennett v. Foreman (1868) Bennett v. Jlarfoot (1871) Bent V. Youiif? (1k:J8) Berney v. Howell (18i:0) Borrisford v. Mihvard (1740) Berry v. Keen (1H8'J) Bethnne v. Calcntt {\HW.\) Beynon v. Cook (187;")) Bickerton v. Walker (1885) Bickford v. Grand Junction Railway Co (1877) Bidder v. Bridges (1887) Bigelovv V. Staley (1804) BiggH V. Freehold Loan andl/.o^o'i Savings Co j ^^^•^•'> Biggs V. Hoddinott [1898] Birch V. Wright (1780) Bird V. Wonn (1880) Bisdee, Ex parte, in re Baker ....(1840) Bishop of Winchester v. Eeavor..(1797) Bishop V. Church (1751) Black V. Kennedy (1877) IIKKKIiKNl'K. I'VliK. 45 Ch. I), (ill! 'JHO '_':i Ont. 1245 407,410 5()nt.7:tl l!K5,20:i.'.'0'2, 41 1,414 I i:t Onl. IM I. . , , ,,- t 14 Ont. App. 00(1 ) •'•"' •'"' L'4 Ont. App. :125 74 7 Ont. App. 704 44(1 7 I'M. 445 '24\t 17 Or. 001 4*J5 'j:i (.^.b.I). :tio, :;22 ;i8;i I S. iSc St. 7 .'101 1 Ch. 547 'J8H :i r:.c.u. 'j8o •J07 (llti.B.D.'JL'l. ) .j-j ID Ap|.. Cas.005 J '" L.R. 4 K(i. 5:J7 255, ai8, :104 :t4Ch.l).402 204,412 1 g.B. io:j 7!» 3 M. & G. 258 :i2:i 17 Beav. 11 5 24 Ch. 1). 018 422 20 Gr. 55 ;t04, ;{05, 4i:( 24 Ont. 278 444 8 Vos. ooy 1!»7 15 Gr. 117 108,2:t2 1!) W.li. 428 24;j it Sim. 180 ;i01 1 .1. tt W. 047 i:t:t, 149 2 Atk.49 1)05 51 L..). Ch. 912 i:{4 :i Gr. 048 252 10 Ch. :>89 85 31 Ch. 1). 151 330 1 S.C.R. 090, 725 230,247 37 Ch. 1). 400 371 14 U.C.C.P, 276 387 {26 Ont. App. 232 } ojj; JJo 2 Ch. 307 9 1 T.R. 378 140 33 Ch. D. 215 289,319 f 1 M.l). & DeG. 333.. \ ... 118 R.C. 137 J ^*' 3 Ves. 31 211 2 Ves. Sen. 370 300 Man. K. 144 37 X.Will TAISLK or TASKS. r.\sK. 1).\'1'K. KKFKKKNCK. PAGE. HI ackley v. Kenny (No. 12) (IKHO) l \^ JJ"!' \""- ,.,: \ t>- 4'_>0 •' •' ' ' 'I IH Out. App. l.i;) i Blackwood v. London ('liar- (/,„-. I L.H. f) P.C. D'J ... 1 .,,„ tered Bank of Australia i/"^'"*Ul« K.C 522 j "^^^ Blake v. Beaty (18.')')) .') Gr. ;t')9 ;tn:j, 420 Blonj,' V. Fitzf,'erald (ISiCJ) If) P.U. 4G7 221,44") Bloomfield V. Hellyer (IMJ)')) 22 Ont. App. 232 141! Bloye's Trust, He (IH4!)) 1 Mac. & (i. 4.SH lt)2, li)4 Blunt V. Marssh (1MH8) 1 N.W.T.K. Ho « BoldinR V. Lane (IHOIJ) 1 DeG. .1. & S. 122 104,10(5 Bolton V. Buckenhani [1891] 1 Q.B. 278 78,94 Bolton V. Halinon [1891] 2 Ch. 48 95, :JG3 Bompas v. KItir (188(5) 33 Ch. I). 279 154 Bonnoy v. Kidgard (1784) 1 Cox 145 377 Booth V. Klch (1G84) 1 Vern. 295 211 rW.N. 156...) Booth & KettleweirsContract,AV( 1892) ^07 L.T. 551 J 225 Boulton V. Rowland (1883) 4 Ont. 720 292 Bousfield V. Hodges (18G3) 33 Beav. 90 188 Bovill V. Endle [189(5] 1 Ch. (548 142, 358, 359 Bo.\ V. Bridgman (1875) G P.K. 234 195 Boyd V. Johnson (1890) 19 Ont. 598 ...76, 4()G, 415 Bracev. Duchess of Marlborough (1728) 2 P.Wms. 490 310 Bradbury V. Wild [1893] 1 Ch. 377, .384 30, 31 Bradford V. Belfield (1828) 2.Sim.2G4 Ki') Bradley v. Borlase (18.')8) 7 W.K. 125 28G 23 Ont. G.")8 | 40, 144, 147, Brethour v. Brooke. (1893) {^}, Ont.App.144i 148, 190 Brewin v. Austin (1838) 2Kee.211 253 Bridges v. Longman (1857) 24 Beav. 27 IGO Bridges V. Ileal Estate Loan and Debenture Co (1885) 8 Ont. 493 333 Bridgman V. Daw (1892) 40 W.K. 253 76, 40G, 415 Briggs V. Calverley (1800) 8T.R.G29 367 Bright V. McMurray (1882) lOnt. 172 378 Bristol V. Hungerford (1705) 2 Vern. 524 309 Bristol & West of England Land Co. V. Taylor ; (1893) 24 Out, 286 339 British Canadian Loan Co. and Ray, Re (1888) 16 Ont. 15 171 British Canadian Loan Co. v. | ^g^gj 030nt.664 { ^^' *^7,' ^"?' Tear j^ ' I 416,417 British and Canadian Loan Co. v. Williams (1888) 15 Ont. 366 87, 88,89, 90 British South Africa Co. v. Com- panhiade Mozambique [1893] A.C. 602 209, 361 Broad v. Selfe ^^^^^^ { n''w"K^'lo'36*^^ } ^^' "^^ Brookfieldv. Brown (1893) 22 S.C.R. 398 41,354 ^ '^ TAHLE OF CASES XXIX 310 339 I'AtiE. . . 153 ... 280 CASK. DATK. RKKKIIENCE Brotherton v. Hetheriiigtou (1876) 23 Gr. 187 Broughtouv. Key 11882) W.N. 3 Brower v. Ciuiada Permanent Building Association (1877) 24Gr. 509 Brown v. Bushey (lH9't) ~"> t)"t. (512 Brown v. Cole (1745) 14 Sim. 427 356, 377 Brown v. Deacon (1866) 12 Gr. 198 IHi Brown V. Metropolitan Counties etc. Society (1859) 1 E. & E. 832 54, 146,328 Brownv. McLean (1889) 18 Ont. 533 300, 302, 391 Brown v. Stead (1832) 5 Sim. 535 /,o,on/11 L..T.Ch. 73.1 Brown v. Thorpe (l84-j|jg j^ q 532 J Brown v. Woodhouse (1868) 14 Gr. 682 Brown, Ex parte, iu ce Reed (1878) 9 Ch.l). 389 Brown's Estate, lie [1893] 2 Ch. 300 78, Browne v. Lockliart (1840) 10 Sim. 420 3o8 Brownlee v. Cunningham (1867) 13 Gr. 586 251 Brunswick Savings Institution v. Commercial Union Ins. Co (1878) 68 Me. 313 1-2 Brush V. ^tna Ins. Co (1864) 1 Old. (N.S.) 459 124 319 43 324 305 195 190 273 Bryan v. Cowdal Bryson v. Huntington Buchanan v. Greenway Building and Loan Association V. McKenzie (1897) 21 W.K. 693 282, 382 25Gr.265 288 12 Beav. 355. 254 (1873) (1877) (1849) Buckler V.Bowman.. ..' (1866) 12 Gr. 457 318, 424 Buckley V. Wilson (1861) 8 Gr. 566 179, 228, 219, 421 Bucknam v. Stewart (1897) 11 Man. K. 625 272 28 Ont. 316 "l 24 Ont. App.599 } 26, 325 28 S.C.K. 407 ..) Building & Loan Association v. Poaps (1896) 27 Ont. 470 237, 304 „ . . , „ ,. f M Ont. 322 ) Bull V. North British Canadian 1 ^- q^^^ ^p^ ^^1 \ 127 InvestmentCo (1886) |j'g y_Q_K_ ggj j Bullenv. Renwick (1862) 9 Gr. 202 5, 153 Bunnell V. Gordon (1890) 20 Ont. 281 442 Burgess V. Moxon (1856) 2 Jur. (N.S.) 1059 20 Burke V. O'Connor (1853) 4 Ir. Ch. 418 285 Burlinsonv. Hall (1884) 12Q.B.D.347 218 Burn V. Burn (1798) 3 Ves. 573 16 Burnha.- v. Gait (1869) 16 Gr. 417 86, 269 Burnharav. Watts (1844) 2 Kerr (New Brans.) 441... 141 Burns v. Davidson (1892) 21 Ont. 547 361 Burrell, 7{c, Burrell v. Smith (1869) L.R. 7 Eq. 399 91, 229 Burrell v.Earlof Egremont (1843) 7 Beav. 205 322 Burrowes v. Molloy (1845) 2.1. & L. 521 206 IQ-B. 276 \ 132 18 R.C. 462 J Burt, Boulton& Hay ward v. Bull [1895] | -W* x\x TAI'.LK OK CASKS. TASK. DATK. HKFERKNCK. I'AC.E. limtoii V. r{;irclay (1H;{1) 7 Biiif,'. 745 '21 limtoii V. DoiiK'all (!«!)!') 30 Out. M'.i 170 Burlou V. Williams {1K70) 5 Cli. ()55 370 C Cahiinc v. Diirio (18()i)) (Jaisse v. Bunihain (1H74) Caldwell v. Hall (IHlil) Caldwf'll V. Stadac'onaFire & Life IiisHi'aiiet' Co {188;{) Cameron v. Camovon (1801)) Cameron v. Gibson (1889) Cameron v. Kerr (1878) Cameron v. Mcllroy (1884) Cameron v. MeKae (1852) Cameron v. Phillips QBSO) Cameron v. Walker (1890) Cameron v. Wolfe Island Co (187:5) Campbell v. llolyland (1877) Campbell v. McDoufjrall (1880) Campbell v. Morrison (1897) Campbell V. Robinson (1880) Campbell v. Uoyal Can. Bank ....(1872) Canada Landed and National In- vestment Co. V. Shaver (1895) Canada Permanent Building and Savinjjjs Hoeiety v. liowell (18(50) Canada Permanent Loan and Savings Co. v. Ball (1899) Canada Permanent Loan and Savings (!o. v. Donaldson (1893) Canada Permanent Loan and Savings Society v. Macdonnell (1875) Canada Permanent Bnilding Society v. Teeter (1889) Canada Permanent Loan and Savings Co. v. Traders Bank.. (1898) Canada Settlers' Loan Co. v. Kenouf (1897) Canadian Bank of Commerce v. Brieker (1881) Canadian Bank of Commerce v. Forbes (1885) Canadian Settlers' Loan Com- pany V. Nicholles (1890) Canavan v. Meek (1883) Carpenter v. Parker (1857) Carr v. Fire Assurance Assn. (1887) Carrick v. Smith (1874) 2 Chy. Ch. 394 253 () P.K. 201 258 7 U.C.L..T. 42 383 11 S.C.U. 212 123 2 Chy. C^h. 3()5 253 17 Ont. 233 143 3 Ont. App. 30 ... 157 1 Man. R. 242 285 3 Or 311 79 13 P.R. 78 224 19 Ont. 212 273 G P.R. 91 249 7Ch. 1). 1(50, 171.. .207, 208 209 5 Ont. App. 503 . 210 24 Ont. App. 224 77 27 Gr. (534 408 417 19 Gr. 334 443 22 Ont. App. 377 .70, 220 •*15 19 VA'M. 124 140 IK) Out. 557 9(5 (Man.) 3()C.L..I. 08 253 22 Gr. 401..... 364 19 Ont. 150 186 29 Ont. 479 130 137 5 B.C.R. 243 200 1 C.L.T. 729 233 10 P.R. 442 231 307 5 B.C.R. 41 79 2 Ont. 630 .. 70, 40(5 415 3 C.B.N.S. 200 .. 147 14 Ont. 487 129 35 U.C.R. 348 ... 391 TABLE OF CASES. XXXI CASE. DATE. REFERENCE. PAGE. Carroll V. Hopkins (ISM) 4 Or. VM '2')'), L>(il Carroll v. Kobovtson (18(18) If. Gr. 173 104, 154, 200, 202 Carrnthers v. Hamilton Provi- tlent and Loan Society (1808) 12 Man. K. GO 18!) Carson V. Simpson (1894) 25 Ont. 385 138 Carter V. Grasett (1888) 14 Out. App. 685 387 Carter V. Stone (1890) 20 Ont. 340 415 Carver V. Richards (1800) 27 Beav. 488 197 Casborne v. Scarf e (1^37) |jg j^q 359 ( ..lo, 2-1, ooO, 3.)1 Cash V. Belcher (1842) 1 Ha. 310 28(1 Castellain V. Preston (1883) 11 Q.B.I). 380 121, 129 Cattanach v. Urqnhart (1873) G P.U. 28 236 Catton v.Bank [1893] 2 Ch. 221 43 Cayley V. Hodffson (1867) 13 Gr. 133 246 Cayley v. McDonald (1868) 14 Gr. 540 6 Chamberlain V. Armstrong (1882) 9 P.K. 212 240 Chambers V. Goldwin (1804) 9 Ves. 254 149 Chambliss and Canada Life As- surance Company, Be (1888) 12 P.R. 649 223, 224 Chaplin V.Young (No. 1) (18G4) 33 Beav. 330 143 Chard V. Me vers (1«70) 3 Chy. Ch. 120 258 Charles v. Jones (1887) 35 Ch. D.544.. 203, 204,287, 288 Charter V. Watson [1899] 1 Ch. 175 384 Chatfield V. Cunningham (1892) 230nt. 153. 188,197,200,201, 2(i9 ,.. . M..u.^ J Hi Ch. I>. 378 ) ,... Chatterton v. Watney (IKSI) | ^^ (,jj_ ^^ ^.-,,, |- 4.5,) Chawner's Will, He (1869) L.K. 8 Kq. 5G9 IGO Chennel v. Martin (1833) 4 Sim. 340 256 Chesworth v. Hunt (1880) 5 C.P.D. 266 125 Chetwynd V. Allen [1899] 1 Ch. 353 323 Chinnery V. Evans (1864) UH.L.C. 115..102, 103, 278,279 Chisholmv. Provinciallns.Co. ..(1869) 20 U.C.C.P. 11 123 Chisholm v. Sheldon (1850) 1 Gr. 318 27, 354 Cholmeleyv. Pa.xton (1825) 3 Biug. 206, 213 190 Cholmley v. Countess Dowager of Oxford (1741) 2 Atk. 267 374 Cholmondeley v. Clinton (1820) 2 J. & W. 1 186, 3G2 Clark v. Barber, lie (1894) 26 Ont. 47 68 Clark v. Bogart (1880) 27 Gr. 450 425 (^lark v. Harvev (1888) 16 Ont. 159 166 Clark V. May (1852) 16 Beav. 273 422 Clarke v. Best (I860) 8 Gr. 7 226 Clarke, lie, Coombe v. Carter ....(1887) 3G Ch. U. 348 18, 352, 355 Clarke v. Cooper (1892) 15 P.K. 54 233 Clarke v. Freehold Loan & Savings Co (1888) IG Ont. 598 414 Clarksou v. Scott (1878) 25 Gr. 373 76, 226 I XXXll TABLE OF CASES. Climie v CASE. DATE. REFERENCE. Clemow V. Booth (1879) 27 Gr. 15 Clif? V. Wiulsworth (]H4;j) 2 Y. & C.C.C. 598. L.K. ;j Ex. 257... 4 Ex. .328.. Clowes V. Hughes (3870) L.K. 5 Ex. IGO Cochrnno V. Johnston (18(57) 14 Gr. 177 Cockl.urn v. pAlwards (1881) Cockenour v. Bullock (18(i5) Wood (1^*'*^){lk PAGE. .... 408 .... 3G6 138 53 299 Coldwell V. Hall (18G2) 18 Ch. 1). 449 12 Gv, 138 9 Gr. 110 7 U.C.L.J. (O.S.) 42 8 U.C.L.J. (O.S.) 93 Llewellin (188C) 34 Ch. D. 143 19,100, 130,278 2.36 155, 152, 260 254 .3....J Winch (1721) 1 P. Wms. 775 307 105 Coleman v. Coleman v. Coles V. Treeothiok (1804) 9 Yes. 234. Collins V.Cunningham, Cunning- ham V. Drysdale :..(1892) 21 S.C.R. 139,149 180, 229 Collins V. Shirley (1830) 1 K. & My. 638 220 Collinson v. Jeffrey [1896] 1 Ch. 644 266, 374 Colquhoun v. Murray...; (1*^^^) { ""is c"l .f'Ts""^*"""' } ^°* Colyearv.Countessof Mulgrave..(1836) 2 Kee. 81 419 Combes' Case (1614) 9 Kep. 75 171 Commercial Bank v. Watson (1859) 5 U.C.L.J. 163 180 Commercial Bank of Tasmania V. Jones [1893] A.C. 313 95 Conservators of the River Tone V. Ash (1829) Constable v. Guest (1858) Continental Ins. Co. v. Hulman & Cox (1879) Converse v. Michie (18(),")) Cook V. Dawson (1861) Cook V. Fowler (1874) Cook V. Thomas (1876) 24 W.K. 427 Cooke V. Crawford (1842) 13 Sim. 91.... Cook's Mortgage, Ee, Lawledge V. Tyndall [1896] 1 Ch. 923 204 Cooley V. Smith (1877) 40 U.C.R. 543 304 Coomhe, Ex parte (^*^^^MVr^r"^94 l ^^ Coorabe v. Stewart (1851) 13 Beav. Ill 253 Cooper & Allen's Contract, i?c. ...(1876) 4 Ch. 1). 802 173 Cooi)erv. Cartwright (1860) Johns. 679 422 Cooper, Ec, Cooper v. Yesey (1«82) 20 Ch. D. 611 C.A 224 Corbett V. Plowden (1884) 25 Ch. I). 678 146 Corder V. Morgan (1811) 18 Yes. 344 159 Corham V.Kingston (1889) 17 Ont. 432 130 Cork, Earl of, v. Russell (1871) L.R. 13 Eq. 210 286, 364 Cork Harbour Docks Co. Ec (1885) 17 L.R. Ir. 515 323 10 B. & C. 349 74 6 Gr. 510 154 92 111. 145 122 16 U.C.C.P. 167 297 29 Beav. 123, 128 160 L.R. 7 H.L. 27 Ill, 112,114 143 165 ^ TABLE OF CASES. xxxiii CASK. DATK. liKFKREN'CE. I'Afil',. Corley V. Gray (1887) If) Out. 1 416 Cornwall v. Henriod (18(i()) V2 Gr. ICS 374 Corporation of Brussels V. Ronald (18S-2) 4 Ont. 1 37 Corporation of Dublin v. Judge..(1847) 11 Ir. \jM. 8 275 Corsellis v. Patman (18G7 Cotterell v. fStratton (1872 Cottrcl V. Finney (1874 County of Gloucester Bank v. L.K. 4 p:q. loG 285 8 Ch. 295 287, 288 9 Ch. 541 118, 288, 3G7 Kudry S:c. Colliery Co.. ...[' 5] 1 Ch. G29 133 Court V.Holland (1880) 8 P.R. 213 250, 2G0 Court V. Holland (1881) 29 Gr. 19 151, 335 Court V. Walsh ^^^^'^ {lSntApl:2\)'i}"^'^' '^^^' ^^'^ Cowper V. Green ^ ^ ^ \ 18 K C. 5G4 / Craeknall v. Johnson (1877) Ch. D. 735 422 Cradock v. Scottish Provident^ M«oi^/'5^ L.J. Ch. 15.. \ ,,. Institute /(^^^^•*h70 L.T. 718 j ^^ Craig, lie (1883) 3 C.L.T. 501 296 Craig V. Templeton (18G0) 8 Gr. 483 441 Crawford v. Armour (18G7) 13 Gr. 576 91, 212 Crawford V. Beard (1864) 14 U.C.C.P. 87 86,369 Crawford V. Meldrum (1872) 19 Gr. 165 249 Credit Foneier v. Andrew (1893) 9 Man. K. 65 5 Credit Foncicr v. Lawrie (1896) 27 Ont. 498 418 Credit Foneier v. ydmltz (1893) 9 Alan. R. 70 110 Credit Foneier v. Schultz (1894) lU C.L.J. 323...) (10 Man. R. 158 ( 211 Crerar & Muir, Er (1879) 8 P.R. 5C 294 Crippen v. Ogilvie (1869) 15 Gr. 5G8 156 Cripps V. Wood (1882) 51 L.J. Ch. 584 20, 209 Croft v.Powel (1738) Com. 603 159 Crombie v. Young (1894) 26 Ont. 194 42 Cronnv. Chamberlin (1880) 27 Gr. 551 432 Cronyn, Kew & Betts, lie (1880) 8 P.R. 372 294 Crosbie v. Fenn (1879) 26 Gr. 283 231 Crotty V. Taylor (1892) 8 Man. R. 188 85 Crowdy, lie, Burges v. Crowdy ..(1882) 46 L.T. 71 16 Croxon v. Lever (1863) 12 W.R. 237 243 Crumley V. Kingston (1883) 3 C.L.T. 311 216 Cruse V. Nowell (1856) 2 Jur. N.S. 536 173 Cruso V.Bond (1881) {J ^-^JJ* JJJ j 238, 359 Crusov. Close (1879) 8 P.R. 33 212 Cumberland Union Banking Co. V. Alarvport Hematite Iron and Steel Co [1892] 1 Ch. 415 139 Cullin V. Rinu (1887) 5 Man. R. 8. 408, 417 Cummins v. Fletcher (1880) 14 Ch. D. 699, 708.125, 314, 315 XXXIV TABLE OK CASES. 371 283 QxsiE, DATE. rkfp:rence, page. Cummins V. Harrison {IS(iH) 1 Chy. Ch. 309 230 Cunninf,'ham V. Hamilton (1897) f) B.C.K. 539 lU, 114 Curlewis V. Clark (1849) 3 Ex. 375 Curtis V. Sheffield (1882) 20 Ch. D. 398 D Dance V. Goldingham (1873) 8 Ch. 902 192 Daniell V. Sinclair (1881) L.R. 6 A.C. 181 112, 118 Darling v. Wilson (18*39) IG Gr. 255 225 Darrell v. Whitchot (lWi9) 2 Ch. Kep. 59 26 Daubu/, v.Lavington (1884) 13 Q.B.D. 347 141 Davenport V. James (1847) 7 Ha, 249 214 Davey v. Durrant (1857) 1 De G. & J. 535..186, 187, 19(5 Davidson v. Boycs (1873) (5 P.R. 27 221 Davidson v. McKay (1807) 20 U.C.R. 300 300 Davies v. Second Chatham Building,' Society (1889) 01 L.T.N.S. 680 30 Davis V. Barrett (1851) 14 Beav. 542 325 Davis v.Hawke (1854) 4 Gr. 394 333 Davis V.Thomas (1830) 1 R. & M. 506 117 Davis V.White (1809) 10 Gr. 312 255 Dawkins v. Lord Penrhyu (1877) Ch. D. 318 381 Day v.McLea (1889) J2 Q.B.D. 010 371 Bedford v. Boulton (1878) 25 Gr. 561 378 f 4'' 104 '*0" Delaney V. Can. Pae. Ry. Co (1891) 21 Out. 11 \ ofj^ oH.j^"3f9 372. 17 /1Bno^ i''' Ves. 583; OR.R. \ our, ocq .(1802) I jy2. jg jj;c. 502.1 -^•^' -^^ Denuistoun V. Fyfe (1805) 11 Gr Detillin v. Gale DeVi-pr V.Lee (1843) 2 Ha. 326 104, 307 Walker [1893] 2 Ch. 429 102 .-. Harrison (1817) 4 Price 282; 18 R.C. 474... 08 .gerstein (1870) 3 Ch. D. 000 198, 199 . Burrell (1860) L.R. 1 Eq. 337 413 Avery (1871) 3 Chy. Ch. 222 Dicksoii Dickson v. Hunter (1881) 29 Gr. 73. 258 138 Dilke V. Douglas (1880) 5 Out. App. 63, 70^ -jyii'/iuw Dingham and Hall, Re (1889) 13 P.R. 232 258 Dingle v.Coppen [1899] 1 Ch. 726 104, 202 Dixon V. Wigram (1832) 2 Cr. & J. 013 7 Doan V.Davis (1876) 23 Gr. 207 443 Dobson v.Land (1850) 8 Ha. 210 122 Dodd v.Lydall (18^1) 1 Ha. 333 412 Doe d. Baxter v. Baxter (1852) 2 All. (New Bruns.) 377... 41 Doe d. Baddeley v. Massey (1851) 17 Q.B. 373 273 Doe d. Brvant v. Cunard (1843) 2 Kerr (New Bruns.) 193... 142 TAHLE OF CASES. XXXV CASE. DATE. Doe d. Campbell v. Thompson... (1HJ;J) Doe d. Carter v. liarnard (1849) Doe d. Cliipman v. DoVebor (I8r)4) Doe d. Curzon v. Kdmimds (IfUO) Doe d. Dixie v. Daviea (18.")1) Doe d. Dunlop v. McNab (18,VJ) Doe d. Falls v .Jones (18G2) Doe d. Fisher V. Giles (1829) Doe d. Garrod v. Olley (1840) Doe d. Holderness v. Donelly ..(184(i) Doe d. Jones v. Williams (1830) Doe d. Jukes v. Sumner (184")) Doe d. MacGregor v. Hawke (1837) Doe d. McLean V. Fish (1849) Doe d. Mowat v. Smith (1851) Doe d. Palmer v. Eyre (1851) Doe d. Perry v. Henderson (1846) Doe d. Kiehardson v. Dickson .. (1832) Doe d. Koss v. Papst (1853) Doe d. Koylance v. Lightfoot (1H41) Doe d. Slason v. Hanson (1857) Doe d. Vernon v. White (1859) Doe d. Webster v. Fitzgerald (1839) Doe d. Wood v. Fox (184(i) Dolman v. Nokes (1855) Dolphin V. Aylward (1870) Dolson, He (1872) Dominion Savings & Investment Society v. Kittridge (1876) Don V. Warner (1896) Donisthorpe v. Porter (1762) Donovan v. Bacon (1869) Doody, Re, Fisher v. Doody [1893] Doody, lie, Hibbert v. Lloyd [1893] Dornyn v. Fraliek (1874) Douglas v. Patrick (1790) Douglass v. Culverwell (1862) Dowling v. Ford (1843) Downes v. Grazebrook (1817) Downey v. Parnell (1882) Doyle V. Kaufman (1877) Drake v. Mitchell (1803) Drought v. Kedford (1827) Drummond v. Guickard, cited in (jreen v. Adams (18G7) Dryden v. Frost (1838) REKEUENCE. I'AOK. H.T.6Vict.K. Co (188(5) Falknerv. Equitable Keversion- ary Society (ISoS) Fall V. Elkins (1801) Fallon V. Keenan (18()G) Farrcll v. Caribou Gold Mining Co (1897) : Farrar v. Farrars, Limited (1888) Farrer v. Laccy (1883) Farrerv. Lacy, Hartland & ('0.(1885) Fauldsv. Harper (1882) Faulkner v- Bolton (ISSf)) Fawcett v. Burwell (1880) Fawsitt, lie, Galland v. Burton0885) Fearnside V. Flint (1883) Ferguson v. Frontenac (1874) Fewings, Ex parte (]88;i) Field V. Hopkins (1890) Finch V. Shaw (LSa')) Fink V. Patterson (1*^00) Finlayson v. ]\[ills (1805) Fisher v. Spohii (1883) Fisken v. McMullen (18(i2) Fitzo:il>bon v. Dugjjan (18(55) Fitzgerald's Trustee v. JIellersh[189'2] Fleming v. Palmer (18(5(5) Fletcher v. Fletcher (1844) Fletcher v. Rodden (1S8'J) Fleury v. Pringle (1878) Flight V. Bentley (1835) Flint V. Howard [1893] Foakes v. Beer (1884) Foley V. Burnell (1783) Forbes v. Jackson (1882) Forbes v. Moffatt (1811) Ford V. Allen (18(59) Fordv. Earl of Chesterfield (185G) Ford V. Jones (l«i)-) Ford V. Steeples (1844) HKFKHKNCK. I'A(iK. 77 L.T. 1(58 22(5 11 Man. K.330 433 4 Ex. D. 37 353 43 Ch. D, 287 235 34 Ch. 1). 234 45 4 Drew. 352 191 9 W. R. 8G1 43 12 (jr. 388 8 30 N.S.R. 199 37 An /-.i i-k of»- f 17(5, 18(5. 188, 40 Ch. D.390 I ' ^y.;^ jj,| 25 Ch. D. (53G 240 31 Ch. D. 42 195, 19G, 285 ( 2Ont.405 ) .-,_, .,,.,, .,„„ in S.C.R. G39....J •"-' ■"^* 7 Sim. 319 373 27 Or. 445 2(50 30 Ch. 22 Ch. 21 Gr. 25 Ch. 44 Ch. D. 231 132 D. 579 101 188 307 D. 338 114. 287 D. 524.. SG 20 Beav. 555 254 8 Gr. 417 (5 11 Gr. 218 32G 4 C.L.T. 44(5 391 12 U.C.C.P. 8,5 433 11 Gr. 188 434 1 Ch. 385 357, 3G0 12 Gr. 22(5 44, 339 4 Ha. G7 72 1 Ont. 155 271 2G Gr. 67 440 7 Sim. 149 140 2 Ch. 54 31S 9 App. Cas. 005 87 1 B.C.C. 277 72 19 Ch. D. G15 3(54 18 Ves. 384 322, 325 15 Gr. 565 105 21 Beav. 42G 286 12 U.C.C.P. 358 353 1 U.C. Jur. pt. 1, 282 253 X X X \ 1 1 1 TAIJLE OF CASES. CASK. DATE. Ford V. Tynte (1H712) Ford V. Wftstcll (1H47) Forrest v. (iilisoii (18!)()) Forri'SItT v. Caiiipliell (1H70) Forstor v. IIo>,'f,'art (1H50) Forstwr v. I'iittorsoii (IHHl) Forsyth v. Bristowo (1853) Foster V. Iliirvoy (18(i:i) Foster v. Patterson (1H81) Foster v. Smith (IS'ifi) Fourtli City Mutual Beueiit Huildinj,' Soeiety v. Williams ..{187!)) Frail v. KUis (IS'iii) Francis v. Harrison (1H89) Franklin Saviii<;s lnstitutif)n v. Central Mutual Fire Ins. Co. ..(1870) Fraser v. Fairl)anks (1894) Frasevv. Loeie (18(;;{) Fraser v. Nagle (1888) Freehold Loan Co. v. McLean... (1891) Freehold Loan Co. v. McLean. ...(LSn.S) French v. Brown (1740) Frisley, />V, Allison v. Frisley..(1889) Frith and Osborne, 7.V (1870) Frontenae Loan and Investment Society v. llysop (18912) Furni'ss v. Caterliam Ky. Co (IS.^iS) Fursdon v. Clogj,' (1842) Gt G. v.V (1807) Gabourie, Be, Casey v. Gabourie(1887) Galbvaith v. Morrison (18(J0) Gait V. F.rie and Niagara Ky. Company "..(18(58) Gammon v. Stone (1749) Gaudy v. Gaudy (188;-)) Gardner v. Brown (1890) Gavforth v. Bradley (ll'^'i) Garlick v. Jackson (1841) Gavtside v. Silkstone etc. Coal and Iron Comi>any (1882) Gaskinv. Phoenix Insurance Co. (1 806) Gee V. Bell (1887) Geldurd v. Hornby (1841) Gemmel v. Burn (1878) Gemmill v. Nelligan (1895) Gibbons v. McDougall (1879) HEFKHKNTR. PAOK. 41 L..I. Ch. 7:)8 ;!18 (i Ha. 229 2(iS Man. U. ()12 87 17 Gr. :i79 a04 15 Q.B. 1;") 181 17 Ch. 1). i:i2 :i82, iwi 8F.\ch.710 102, 10:{ 4 UeG. J. & S. 59 243 17 Ch. I). i;i2 280 Vi U.C.K. 24:i 297 14 Ch. 1). 140 :{91 10 Beav. lifK) 205, 209 43 Ch. D. 183 224 119 Mass. 240 122 23 S.C.R. 79 407 10 Gr. 207 251 10 Out. 241 318, 424 8 Man. U. 110 Ill, 114 9 Man. li. 15 154 2 Atk. 120 154 43 Ch. D. 100 277 3 Ch. D. 618 191 21 Out. 577 7(), 226, 415 25 Beav. 014 210 10 M. & W. 572 275, 270 2 Chy. Ch. 33 253 12 P.U. 252 258 8 Gr. 289 335 14 Gr. 499 210 1 Ves. Sen. 339 289 30 Ch. D. 57 72 19 Out. 202 441 2 Ves. Sen. 075, 678 359 4 Beav. 154 254 21 Ch. D. 762 297 6 All. (New Bruns.) 429... 122 35 Ch. I). 100 235 1 Ha. 251 253 7 P.R. 381 81 26 Out. 307 441, 443 30 Gr. 214 170 ^. TAIILK ol" ("ASKS. XXXIX CASK. DATK. Gihbs V. Cruicksliiuik (]S7;{) (tilcliristniuUsliuid, A'-' (IKSO) Gill's V. TIk' Il.iiiiilliiii I'l'oviik'iit & Loan Socit^y (IS!).")) (iill.'laiiil V. Wadsworth (1877) (iillcn V. Tlic liionmii Ctitliolic EpiMfopal Coi'iiovaHoii of tlic Dioet'se of Kinj^stoii (1HS4) Giliiiou! V. Ivoe (1874) Gilnioiir v. Myers (lS(i8) Gilniour v. Uoe (1874) Gilinour aiiil White, He (1HH7) Gli'dlt'stoiio V. Giiim (IHliS) Glass V. Frccklotoii (18(14) Glass, I'.r jKirtf, in /r Jliicdoiuild (18(i;j) Glover v. Blaek (17«:i) Goddard v. O'Brien (IHSL') Godfrey v. Watson (1747) Goldsniid v. Stoiiehewer (18.")l2) Goodull V. Burrows (IH'i'J) Goode V. Job (18r)8) Gooderhaiii v. DeGrassi (iS'iO) Gooderhani v. Traders Bank (1888) Goodtitle v. .Mor{,'an (1787) Gordon v. Eakins (18()9) Gordon v. Gordon (188()) Gordon v. Johnston (18(i8) Gordon v. Lothian (18')!) Gordon v. Warren (1897) Gorringe v. Irwell (188(1) Gough V.Wood [1894] Gowland v Garbutt (18G7) Graham v. British Canadian l fioqQ\ Loan and Investment Co [ ^ •' Graham v. Ross (1883) Grahanie v. Anderson (18(!S) Grange v. Barber (18(i8) Grant v. Canada Life Ass. Co (1881) Grant v. La Banque Nationalo....(188r)) Gray v. Coughlin (1891) Gray v. Riehford (1878) Green v. Adams (18()7) Green and Artkm,J?e (1887) Green v. Hewer (1871) Green v. Marsh [189:2] Green v. Ponton (1885) Green v. Wynn (18G9) Greenwood v. Commercial Bank 1 , , ,,^^< of Canada j'^^^'^ HKKKRKXrE. I'AdK. L.R. 8 C.P. 4r)4 14(1 11 Ont. Ml ...K)."), 1(17, 171, :;28 10 Man. R. ')i>7 •2o:\ 1 Ont. App. 812 ;i;)7 7 Ont. 14G :i7(l 21 Gr. 1284 414 •JChy. Ch. 179 'J.hJ U'l Gr. 1284 1')! 14 Ont. (194 1712 1 Chy. Ch. 1212 12()5 10 Gr. 470 L'2r), 12128 :i P.R. i;i8 1294 1 Wm.Bl.:t9(); nBnrr.i;J94 1121 9 q.li.lK'M ;i71 :i Atk. r)17 144, ir)4 9 Hare Ai>p. XXXVIIL 180, 12124 7 Gr. 449 ^ti") 28 L.J.Q.B. 1 27') 2 Gr. 13.') 24G IG Ont. 438 403, 40'), 421 1 T.R. 755 310 IG Gr. 3G3 155, 15G 12 Ont. 593 260 14 Gr. 402 138 2 Gr. 293 308 24 Ont. App. 44 70 34 Ch. I). 128 217 1 Q.B. 713 139 13 Gr. 578 90, 91, 212, 2G9 12 Man. R. 244 45 G Ont. 154 80, 81, 82, 288 15 Gr. 189 IIG 2 Chy. Ch. 189 365, 3GG 29 Gr. 2.56 17G 9 Ont. 411 37 18 S.C.R. 553 303, 445 2 S.C.R. 431, 454 281 2 Chy. Ch. 134 359 14 Ont. 697 165 21 U.C.C.P. 531 130 2 Q.B. 330 56 8 Ont. 471 299 4Ch. 204 3G4 14 Gr. 40 370 f xl TAP.LK or CASES. rjt CASK. DATK. |{KKI;I!1;N('I;. I'Alir,. (Jnjonwood v.SnIclilTi' [\H[\'S\ 1 Cli. 1 2Hi) (IrctT v.Ciiiiclmii (IHH(I) :i Mim. I{. 'J4H 4:iri (in...t v.(:iti...,.-s IMS. Co (1H7!») I^T^^J^; ]^^;;r,^^ (Jn'K« V. Sinter (iHrdi) 'J'J Mciiv. :tl4 (irt'-jTHmi, /.V,(;iiri«*':ron V. t!oliim(lHH7) :t(i Cli. I). 2L':J 20:i, ;iOH (iroy V. I'.iill (lH7(i) 'J:i dr. :;!»(( 200 (Inty V. iMim. & N.W.Ky (IH!!;")) ;il C.I. ..I. ;i'_'4 UOi) flriflitli V. Crocker (IH!)I) 18 Out. Ai.p. :i70 157 (JriKK v-!^t">'KiN (I^i4(i) f) Ilii. !»;i l.'S() (JriMHfll V. .Money (18(50) ;j8 li..l. Ch. IJl'J liO (iroHveiior V. Atlantic Firt' IiiH, I /.u-m i-v\' -kh 1'»> ;o. ot Brooklyn ) ^ Gundry V. IJiiyniml (1704) '2 Verii. 470 1211 (liinri V. Iliirper (1800) :tO Out. (ioO :i(il (iiithrie v. Shields V.i (Jr. f)84 00 (i/.owski v.Iioidy (1870) 8 I'.IJ. 14(i LM'J Haggartv. Town of Hninijiton ...(1807) IIa;^iU(, AV, Traders Bank v. Murray (1887) Ilaldane v. .lolnison (18r);i) Hall V. I'.rown (18.-)8) Hail V. Ileward (]88t)) Hall, AV, Lilley v. Ford [1800] Hall V. .Morley (18."):!) Hall, Kx ]i(irtr, hi rf \\'hittint,'....(1870) Hallett V. Furze (1885) Halstod V. (%jnkliu (188.-)) Ham V. Ham (18.17) Hamilton v. Stevenson (1877) Hamilton v. Tweed (188;i) Hamilton Provident and Loan Society v. (.iilbert (1884) Hamilton Provident Loiin & In- vestment Society v. Smith (1888) Hampson v. Fellows (18G8) Hancock, AV (1888) Hanford v. Howard (1807) Hansard v. Hardy (1812) Hanson v. \h-rhy (1700) Harding v. Davies (18'jrj) Harding v. Tingey (18G5) Hare v. Horton (1833) Harlock v. Ashbcrry (188L') Harmer v. Priestley (IS.")!]) 28 S.(Mi. 174 i:t 14 Out. (idO 8 F.xch, ()80 If) r.C.U. 410 :t2 Ch. !). 4;!0 . 2 Ch. 107 8 r.c.i;.r)84 . . 10 Ch. I). (ilT) . 31 Ch. I). ;!1L'.. 3 Man. K. 8 .... 14 U.C.H.407.. 125 Or. 108 P.R. 448 .140, (i:!, (5 Ont. 434. 17 Ont. 1 403, 400, G Eq. 57') 57 L..I. Cli. 703 1 N.B. iMi. 241 Ill, 18 Ves. 455 2 Vern. 302 2 C. & P. 77 10 Jur. N.S. 872 5 B. & Ad. 715 ioch.i).53o ('""'i;?y; 10 Beav. 500 280, 443 70 107 3(12 102 338 18 375 2(14 438 243 258 300 417 57 87 114 374 144 3()7 35(5 137 271, 270 3(i8 ^r TAIII.I'; OK CASKS. xli CASK. ItATK. Iiiii|ifi- V. ciiiiuTt (1hk:i) lliill'isoii, [■'..!■ fulfil-, ill ir U<.'ttH..(IHHl) lliirrisoii V. Hrc>,'a (IH(il) IhirriHoii V. (iricr (iWii)) iliinisoii V. Ildlliiig (IHI'J) lliiri'ison V. Owen (17ilK) Ilarroii v. Vciih'Ii (iHH.'t) Jliii't V. .M('(,)iifst('n (IKT.')) Iliirtcr V. Coliimii (1KH2) Iliirtlcy V. I'.iirti.ii (iH(iH) Unity V. AiPi)l<'l)y (IHTL') Hiim-y V. .McN'cil (IKHH) Ilaskill V. Fniscr (\mi) Iliitt V. I'iirk (IKoH) lliiwUc V. Millikf'ii (lH(i(i) Jliiwllioriic, Ilr, (iriilmin v. Miissoy (1Hh;{) Iliiydoii V. Williams (iKItO) llayrs V. liayos (1H81) lliiycs V. Hayes (IHHl) Ilayiifs V. Smith (IS,');!) ITaywood v. I'.niiiswiek etc. liiiildiiif,' S()(,'ii-ty (IHKl) ITi'ah-y v. Daiiit-ls (IHdH) Jli'ath V. I'u-,'h (1H8I) lloiidc'i'soii V. Astwood [1H94] Ilciidcrsoii V. liaiik of I lamiltoii. ( lSi);i) Jlfiidi-rsoii V. Iifowii (1H71) ITciidi'i'soii V. Hoiidersoii (lH!t(!) lli'iiry V. KciT (]K!)()) liercdiiiier v. Mlliott (1H87) Hcrniaim v. lF()d^,'(}S (1K7H) Ilosso V. Briaiit (IHilO) Ileward v. Wolffiiden (iHliH) Ilt'wc'tt V. Barr [IHOl] Hewitt V. Nansom (IKriH) Hiatt V. llillnian (1H71) Hicks V. Williams (1888) Hifi;},'iiis V. Fniukis (18t()) ilif^'K'ns V. TriistH Corporation of Ontario (18<)<)) Hifjf^'s V. Scott (184U) Hill V. Bonner (1858) Hill V. Forsyth (18.59) Hill V. llicken (1897) KrKKIIKNCK. I'Ai.K. f) <)!lt. lo'J '.MM 18 rh. I). 1J7 M, r.7. II! 'JO V.V.U. :i'.'4 290 L' Chy. <'li- It" 2»0 1 H. & SI. 171 a78 1 Atk. .-)•_'() 05 :i Out. I'Jfl 105 '_>•_' (Ir. i:t:( Wiw 19 ch. I). (i:i(i :M8 :i Ch. :i(M .'Hi'j 19 (ir. 'JO") 209 ( r-'i'.ii. :t(iL' I .,n« ll24C.li..l. rj'Ji -"" 12 U.C. ('.]'. ;iH3 4;i8 (i (ir. '>:\\\ 28(1 12 (ir. 2;i(i 'j:t('h. I). 74;j 298, ;j(ii 7 Biii-r. l(i:i 274 29(!r.9(t 290 8 p.u. r)4() 2:.7 11 V.VM. r>7 295 8 Q.B.I). 4o:( 14(i 14 Or. (ilCl T) p; (»).B.i).:!4r. i ir., 271, 27:i, 17 App. Cas. 2:1.') ( :5.")1, :!K2 A.V. 150 ir.2, 192, 19() f 2:i Out. :;27 ) ■ 20 Out. A))!). (;4(>. .. \ 209, :t(;i (2:1 S.C.U. 71(> J 18 Or. 79 'MG 2:t Ont. A|ip. .577 273 10 (".].. T. (;9 '2(\') 14 Ont. 714 :t;i4 L.U. l(i Kq. 18 HiO 2 ,Iiir. N.S. 922 ., 172 14 Or. 1,SS 432 1 ii.B. 98 28.'» 7 W.li. 5 2()2 19 W.U. (194 173, 197 15 Out. 228 280 15 L..I. Ch. 329 314 30 Ont. 084 408, 417 7 C.B. U3 146 20 Beav. 372 224 7 Or. 401 255 77 L.T. 127 305 xlii TAULK OF CASKS. TASK. DATE. IJKFKKKXC'E. PAGK. Hil! V. KowIiKuis [1H!)7] 2 Ch. :5(>1 3G0 Hill V. Silk-bottom (1882) 47 L.T. 224 233 Hilton V. Woods (ISO?) L.li. 4 Eq. 432 3(J5, 413 Hind V. Poole (IBf'S) 1 K. & -T. 383 172 Hobfirt V. Abbot (1731) 2 P. Urns. (i43 22!) Hobiis V. The Ontario Loan and Dcbi'iitiiro Conijiany (]8!)n) 18 S.C.R. 483 47,31 Hobson V. Oorrin-^e [1^!'"] ' ("h- 1«- l-^'i- 138, 13!) Ho(lt,'i' V. Attorney-General (183!)) 3 Y. & C. 342 210 Hodges V. Croydon Canal Co (1840) 3 Beav. 80 288 Hod.sonandHowe'sContract, AV (1887) 3.") Ch. 1). (i88 173, 197 Ilolborrow v. Lloyd (ISiTJ) ;"> Jur. N.S. pt. 2, 114 284 Holford V. Yate (IS.'w) 1 K. & J. 077 2(J9 Holland v. Hodgson (1872; L.K. 7 C.P. 328 130. 137 Hollier v. Eyre (1842) 9 CI. & P. I 94 Hollin},'shead, He (1888) 37 Ch. D. G51 102 Hoo.lv. Phillipss (1S41) 3 Beav. 513 322 Hoofstetter v. Booker (1895) <[ zf. y'c'lf 'Tl' '^'' } ^' Hookev V. Morrison (1881) 28 Gr. 369 270 Hoole v. Smith (1881) 17 Ch. D. 434 179 Hooper, K.r parte (1815) 19 Ves. 477 18, 20 Hopkins v. Herasworth [18!)8j 2 Ch. 347 301 Hopkinson v. Holt (1H<>1) 9 H.L.C. 514 311, 312 Hosken v. Sineoek (1805) 34 L.J. Ch. 435 289 Hosking v. Smith (1888) 13 App. Gas. 582 387, 391 Houston, 7iV,Honstonv.H. ■ dn(1882) 2 Ont. 84 117, 359 Howard V. Harding- (1871) 18 Gr. 181 193 TT J IT • /i,-o-)\ f 1 Vern. 33, 190 Howard V. Harris (1()83) < ,„ „ p ..rj. ;;} Howard V. Maeara (1859) 1 Chy. Ch. 27 254, 209 Howard's Estate, i?e (1892) 29 L.K. Ir. 200 422 Howeren v. Bradbiirn (1875) 22 Gr. 90 104, 202 Howes v. 'J'he Dominion Fire and .Marine Ins. Co (1883) 8 Ont. App. 044 125 Hudson's Bay Co. v. Kearns (18!)0^ 4 B.C.K. 530 304 Huf,'hes v. Cook (1805) 34 Beav. 407 3.53 Hughes v. Howard (1858) 25 Beav. 575 20 Hugill V. Wilkinson (1888) 38 Ch. 1). 480 272 Hungerford V. Clay (1722) 9 Mod. 1 148 Hunter v. Lord Langford (1828) 2 Moll. 272 19 Hunter V. Xuckolds (1850) 1 Mac. & G. 640 103 Hutton V. Brown (1881) 45 L.T. 343 Hyde V. Barton (1880) 8 P.K. 205 Hyde v. Dalhiway (1843) 2 Ha. 528 Hyman V. Hoots (1803) 10 (Jr. 340 310 Hyman v. Hoots (1865) 11 Gr. 202 2!)2 Hynes V. Smith (1879) 27 Gr. 150 290 358 445 379 i TAHLE OF CASES. xliii •I CASK. DATK. REFKREXCE. PAUE. Ibbottson V. Kliodes (170G) 2 Vei-n. i)')^ 304 Ini])eriiil Bank of Canada v. Metc'iilfe (18H()) 11 Ont. 4(i7 282,392 Iniiierial Loan and Investment Co. V. Clement (189(5) 11 Man. K. 428, 445 57 Imjierial Jjoan and Investment Co. V. O'Sullivan (1879) 8 P.U. I(i2 303 Inman v. Wearing (18,J0) 3 DeC. ^: H. 729 374 Irby V. Irby (1855) 22 Beav. 217 MS Irby V. Irby (No. 3) (18.58) 25 Beav. G32 324 Jackson, Kx parte (1880) Jackson, I'Jx parte, in re Bowes ..(1880) Jaekson v. Hammond (1879) Jackson v. Richardson (1897) Jackson v. Yeomans (1809) James v. Biou (1819) James v. James (1873) James v. Kerr (1889) James v. Kumsey (1879) Jainicson v. London and Can- 1 /io,>-\ adian Loan and A<^eney Co. / ^ ' ' ' ' Jamieson v. London and Can- ^ adian Loan and Agency Co. > (1899) (X.).2) j Jenkins v. Jones (1800) Jennin;rs v. Jordan (1881) Jennings v. Major (1837) Jennings v. Ward (1705) Jessop, lie (1863) Johnson, Ex parte (1875) Johnson V. Bennett (1882) Joiuison v. F.vans (1889) Johnston v. Johnston (1882) Johnston v. Keid (1881) Jones, Ex parte (1835) Jones V. Beck (1871) Jones V. Bright (1829) Jones V. Creswicke (1839) Jones, Re, Farrington v. For- rester [1893] Jones V. Gibbons (1804) Jones V. Kearnej' (1841) Jones V. Matthie (1840) 14 Ch. D.725 50 14 Ch.D.720, 743 50 8 P.K.157 219, 230 1 N.B. Kq. 325 118 19 U.C.C.P. .394 04, 05 3 Swanst. 234 301 L.ll. 10 Efi. 153 20,205, 209 40 Ch.I).449 80 11 Ch.l).398 108 (•23()nt. App.002..\ ^o 127 S.C.K. 435 ( " j2(i Ont. App.llO ..) allirmed Huprenie - ..21, 22, 24 (Court Oct., 1899. ..j 2 Gift. 99 187,308 /O App. Cas. 1 125, 313, 310, I 098, 70(1 J 319, 3(53 8 C. & P. 01 307 (2Vern. 520 ) „„ U8 H.C. 3(55 )' "-^ 32 Beav. 400 294 P.K. 225 70, 343, .397 9 P.R. 337 434 01 L.T. 18 358 9 I'.K. 2.59 208 29 Gr. 293 315, 319 4 1). & C. 750 19 18 (Ir. (571 423, 424 5 Hing. 533 105 9 Sim. 304 253, 207 2 Ch. 461 423 9 Ves. 407 331 I Dr. & War. 134 20, 70, 400, 415 II Jul. 504 186 xliv TAULE OF CASES. CASK. DATE. REFERKNCE, PAGE. Jones V. Meredith (ITIiO) Bunb. 340; Com. 661 221 Jones V. Sniitli (1794) 2 Yes. :572 307, 319 Josepli V. Lyons (1884) 15 Q.B.D. 280 38 Jost V. McCuish (1893) 25 N.S.R. 519 299 Judd V. Green (1875) 33 L.T. 597 333 K Kay V.Wilson (1877) 2 Ont. App. 133 379 Kearsley v. Philips (1883) 11 Q.B.D. 021 50 Keech V Hall (1778) I ^^""^- "^ X ^'^^' ^■^■*' l"^*'' Aeecn v. i urn ^ ' " ^U 18 li.C. 123.... j 300, 304 Keen V. Codd (1S91) 14 P.R. 182 225 Keeper v. Merrill (1881) Ont. App. 121 137 Kelcey, lie, Tyson v. Kelcey ....(1899) W.N. 133 17 Kelly V. Imperial Ijoan :ind In- vestment Co (^«»-*) { Jl S.C.R^^Vo '^'^'l ^^^ Kelsey V. Kelsey (1874) L.K. 17 Eq. 495 l,'-3 Kemp V. Lester [1890] 2 Q.B. 102 54 Kendell v. Ernst (1X94) 10 P.K. 107 234 J. 1 1. rn fl- 1 ( [189(i]l Ch. 702 ) 180,188, Kennedy v. De I rafford | L^^^_J ^^ ^ ^^^ | , ^^^ . Tz ni-1 1 ,1„^,.,^ f 19 N.S.K. 497'l Kenny v. Chisholm (1883) W << y ni (•» ( 80 Kent V. Thomas (1850) 1 H. & N. 473 370 KerLy v. Korby (1850) 5 Or. 587 153 Kerrv. Beebec (1800) 12 Gr. 204 20, 209 Kerr v. Kinsey (1805) 15 U.C.C.P. 531 297 434 220 192 281 240 Kerr v. Styles {\Mi)) 20Gr. 309 Korrick v. SalTery (18;'.5) 7 hjim. ^'17 Kershaw v. Kalow (1855) 1 Jur. N.S. 974 Kibble v. Fairthorne [189.5] 1 Ch. 219 Kinf,' V. B'reeman (1807) 1 Chy. Ch. 350 King V. Greenhill (1843) M. & G. 59 Ill King V. Parish of Edington (1801) 1 East 288 159 39 !.'■ u vi nui.,\ f - Ha. 239) King V. Smith (1843) |jg|| c.98/ Kingv. State MutnalFireIns.Co(1851) Mass. 1 122, 129 Kingsland, Ec (1879) 8 P.U. 77 2(i4 Kinn-iird v Trollone (1SS8) I ="' ^''' I 70,89,91,220,238, 2(i9, Kinnaird v. Trollope (No. 2) (1889) 42 Ch. 1). 010 238 Kinsman v. Kouse (1881) 17 Ch. I). 104 378, 382, 383 Kirkpatriek v. Howell (1875) 22 Gr. 94 239 Kirkwood v. Thompson (1805) 2 H. & M. 392 180, 194 Kitchingv. Hicks (1884) Ont. 739 139 Klein v. Union Fire Ins. Co (1883) 3 Ont. 234 237 Klineli v. The Ontario Industrial Loan and lnvestnn'ntConipany(1888) 10 Ont. 502 49, 53, 50 TAMLE OF CASES. xlv CASK. DATE. KEKKREXfK. PA(iE. Knappv. Bower (1871) 17 Gr. (595 ^(Ui Knapp V. Cameron (ISoS) « Gr. 559 80, 81 Knox v.Gve (1872) L.R. 5 H.L. (174 IWI! Kraus v. Arnold (18'J2) 7 Moo. 59 3G7 L ;$io 28a 143 3(57 213 130 211 Laeey v. Ingle (1847) 2 Ph. 413 Lfiing V.Avery (18(57) 14 Gr. 33 Lainsr v. Ontario Loan and Sav- ings Co (1881) 4G U.C.R. 114 Lakrv.Bigsar (18(i0) 11 U.C.C.P. 170 Lake v. Sontli Kensington Hotel Company (1879) 11 (Jh. D. 121 Lallv v.Longhurst (1888) 12 P.K. 510 228 Lamb V. McCormaek (1857) 6 Gr. 240 232 Lancaster V. Eve (1859) 5 C.B. (N.S.) 717 Landed Banking and Loan Co. V. Anderson (188(5) 3 Man. K. 270 Landowners etc. Co. v. Ashford(1880) 1(5 Ch. I). 412 152 Langdon v. Kobertson (1887) 12 P.R. 139 258 Laplanto v. Seamen (1883) 8 Ont. App. 557 43, 2(55 Larios v. Bonany y Giierty (1873) L.K. 5 P.C. 34G 19 Latch V. Bright (1809) IG Gr. G53 30G Latch V. Furlong (18GG) 12 Gr. 303 188, 200 Laudale v. McLaren (1892) 8 Man. li. 322 214 La Vassaire v. Heron (1880) 45 U.C.R. 7 49 Law V. Glen (18(57) 2 Ch. G34 132 Law V. Philby (2) (1887) 35 W.R. 450; 5G L.T. 522. 235 Lawlorv.Lawlor (1881) G Ont. App. 312 387, 388 Lawrasonv. Fitzgerald (18(52) 9 Gr. 371 212 Lawrence v. Galsworthy (18.')7) 3 Jur. X.«. 1049 193 Lawrence v. Humphries (18(55) 11 Cn-. 209 72, 214, 344 Lawrie v. Rathbun (1879) 38 U.C.R. 255 299 Leahy V. De Moleyns (189G) 1 I.R. 20G 102 Lee V.Morrow (18GG) 25 U.C.R. G04 393 Leeds and Hanley Theatre of Varieties V. Broadbent [1898] 1 Ch. 343 80, 82, 232 Lees V. Fisher (1882) 22 (^h. I). 283 245 Leigh V. Burnett (1885) Leitch V. McLollan (1883) Leonino v. Leonino (1879) Leslie, Ix'c (1893) 29 Cli. D. 231 26 2 Ont. 587 4.38 10 Ch. D. 4G0 422 23 Out. 143 374, 384 Leslie, lie, Leslie v. French (1883) 23 Ch. D. 552 45 LeTurgev.DeTuyll (1852) Lothbridge v. Mytton (1831) Lett v. Hutchius (1871) L.R. 13 Eq. 17G Lewiu v. Jones (1884) 51 L.T. 59. 3 Gr. 595 " B. 6c Ad. 772 288 419 359 28G Lewin V. Wilson (188G) 11 App. C.as. (539 102, 278 xl VI TAHLE OF CASES. CASE. DATE. Lewis V. Moore (1897) Lewis and Thorne, lie (1887) Ley V. Peter {lsr-,8) Liddell v. Deacou (1873) Life Interest .and Keversioiiiiry Securities Corporation v. Hand-iii-Hand Fire and Life Insurance Society [1898] Lins*^^ead v. The Hamilton Provi- dent and Loan Society (1896) Liquidation Estates Purcliase Co. V. Willoupiiby [1890] Lister V. Turner (1840) Little V. Brunker (1880) Little V. Hawkins (1872) Livingston v. Wood (1880) Livingston'^ v. Western Ins. Co... (1809) Lloyd, P Allen v. Lloyd (1879) Lloyd V. Lander (1821) Lockhart v. Hardy (1846) Locking v. Halstead (1888) Locking v. Parker (1872) Lockridge v. Lacey (1870) Lodor V. Creighton (1800) London & Canadian L. & A. Co. V. Everitt (1881) London Chartered Bank of Aus- tralia, Re [1893] London and County Banking Co. v. Lewis :. (1882) London and County Banking Co. V. RatcliiTe (1881) London Loan Company v , Smyth. .( 1882 ) London and Mutual Bank v. Mitchell [1899] Long V. Long (1869) Loveday v. Chapman (187;}) Lowell V. Bank of.Upper Canada(1863) Lows V. Telford (1870) Lucas V. Dennison (1843) Luckhardt, lie (1898) Luckin v. Rushworth (1078) Luke V. South Kensington Hotel Company (1879) Lyne v. Willis (1730) Lyon V. Kyerson (1897) REFERENCE. PAGE. 24 Ont. App. 393 429 14 Ont. 133 300 3 II. & N. 101 275 20 Gr. 70 363 2 Ch. 230 198 11 Man. R. 199 51, 59, CO 1 Ch. 720 324, 337 5 Hare 281 42 28 Gr. 191 288 19 Gr. 207 305,412 27 Gr. 515 288 10 Gr. 9 122 12 Ch. D. 447 134 5 Madd. 282 220 9 Beav. 349 209 10 Ont. 32 187 8 Ch. 30 180, 385 30 U.C.R. 494 367 9 U.C.C.P. 295 348 8 P.R. 489 241, 266 3 Ch. 540 88 21 Ch. D. 490 20 6 App. Cas. 722 311 32 U.C.C.P. 530 65 2 Ch. 161 271 10 Gr. 239 305, 307 32 L. T. 689 255, 364 10 Gr. 57 431 1 App. Cas. 414 142, 148 13 Sim. 584 379 29 Ont. Ill 440, 441, 442 / Kep. t. Finch 392 1 .,r IS. C. 2 Ch. Rep. 392/ "" 11 Ch. I). 121 70 3 P. Wnis. 352 211 17 P.R. 516 84. 185 TABLE OF CASES xlvii CASK. Maedoiiiild v. Bullivant Maedonald v. McDonald Mackenzie v. Gordon Maelennan v. Gray Maddison v. Alderson Magnus v. Queensland National Bank Mahar v. Fraser Maingay v, Lewis Mainland v. Upjohn Mair v. Kerr Major, Re Major V. Ward Makins v. Robinson Mallack v. Galton Maloney v. Campl)ell Manchester Economic B.S., lie, Manitoba Mortgage & Invest- ment Co. V. Canadian Pacific Railway Co. Manitoba & North-West Loan Co. V. Barker Manitoba & North-West Loan Co. V. Scobell Manlev v. London Loan Co. Markle v. Ross Markwiek v. Hardinghara. Marsh v. Lee Marshall v. Cave Marshall v. Shrewsbury Marshfield, lie, Marshfield v. Hutchings Martin v. Franklin Fire Ins. Co. Martin V. Hall Martin v. Miles Martin v. Woods. Martindale v. Clarkson Martindale v. Smith Martinson v. Clowes Mason v. Broadbent Mason v. Johnston Massey, lie Massey v. Sladen Massie v. Toronto Printing Co. M DATK. RF.KEnENCE. PAGE. 1884) 10 Ont. App. ri82 323 1H8<)) 11 Ont. 187 9d, 101, 104, 202 1838) G CI. & F. 875 421 188!)) l(j Ont. App. 224.. .'(03, 32,1, 445 1883) 8 App. Cas. 4G7 18 1888) 37 Ch. D 4G(i, 203, 392 1867) 17 U.C.C.P. 408 282 1870) I.R. 5 C.L. 229 94 1889) 41 Ch. D. 12G 9, 85, 86 1851) 2 Gr. 223 241 1897) 5 B.C.R. 244 325 1847) 5 Ha. 598 176, 181, 182 1884) 6 Ont. 1 296 1734) 3 P. Wms. 352 211 1897) 28 S.C.R. 228 77 1883) 24 Ch. D. 488 258 1884) 1 Man. R. 285 141 1892) 8 Man. R. 296 Ill, 114 1885) 2 Man. R. 125 2GG 1896) I 23 Ont. App. 1391 26 S.C.R. 443 j 117, 336 1889) 13 P.R. 135 250 1880) 15 Ch. 1). 339, 346 381 ip-n\ /2 Ventr. 337 \ „„„ ^*^'<'Ul8R.C. 523 I ^^^ 1825) 3 L.J. Ch. 57 144 1875) 10 Ch. 250 374 1887) 1875) 1878) 1883) 1880) 1841) 1882) 18G3) 1893) 1865) 18G8) 1887) 34 Ch. D. 721 202 38 N.J.L.R. 140 122 25 Gr. 471 96, 180 5 Ont. 404.. 180, 229, 362, 3G4, 380 fT.T.3) 1" P.K. 247 25(5 Monk V. Benjamin (1890) 13 P.K. 35(1 228, 229 Monkhonse v. Corporation of Bedford (1810) 17 Ves. 380 253 Montfroniery v. Shortis (1870) 3 Chy. Ch. (59 249 Moody V. Matthews (1801) 7 Ves. 174 2(5 Moore, Jle (1878) 8 P.K. 471 387 Moore v. Bank of British North America (1808) 15 Gr. ;it)8 304 Moore v. Ilobson (1868) 14 Gr. 703 225. 3(55 Moor" V. Jackson (1892) 19 Ont. App. 383 37, 221, 351 Moore v. Merritt (1858) G Gr. 550 374 Moore v. Painter (1842) (i Jur. 903 144 Moore v. Perry (1855) 1 Jur. N.S. 12G 209 Moore & Kobinson's BankingCo., /••.(; pnrle, in re Armytage (1880) 14 Ch. D. 379 135 Moore v. Shelley (1883) 8 App. Cas. 285.. 141, 142,143, 176 Moran V. Carrie (1857) 8 U.C.C.P. 60 330 Morley v. Morley (1855) 5 DeG. M. & G. 610 324 Morrell v. Ward (1863) 10 Gr. 231 86, 369 Morrison v. Kobinson (1872) 19 Gr. 480 251 Morrow v. Lancashire Ins. Co.... (1898) 29 Ont. 377 124 Morse v. Lamb (1892) 15 P.K. 9 241 .Morton v. Woods (18(59) L.K. 4 q.B. 293 51, 52 Morton and Hallett, lie (1880) 15 Ch. D. 143 1(55 Morton v. Hamilton Provident and Loan Society Moss V. Gallimore (^'^^'^) { iSfc'Iiij ' } Moss, lie, Levy v. Sewill (1885) 31 C^i. D. 90 359 Muchall V.Banks (1862) 10 Gr. 25 365, 413 Mnir v. Dunnett (1864) 11 Gr. 85 332 Mulligan V. Ilendershott (1896) 17 P.K. 227 43, 265 Municipality of ()rfordv.P.ayley( 1868) 1 Chy. Cli. 272 229, 230 Municipality of Oxford v. Bailey(18(56) 12 Gr. 276 210 Munroe v. Waller (1896) 28 Ont. 29 24 Munsen v. Hauss (1875) 22 Gr. 279 89, 212 Munsie, lie (1884) 20 C.L.J. 112 236 Murray v. Watkins (1890) 62 L.T. 796 28(1 Music Hall Block, Be, Dumble V. Mcintosh (1884) 8 Ont. 225 387, 438 Muskerry, lie (1858) 9 Ir. Ch. 94 278, 279 :{U8«5,}>«P:H:«|} 2i)2 .141, 145, 352 I TMiLE OF CASKS. CASK. DATE. KKKKRENCE. PAffK. iMuttlel.ury V. Stevens (1886) 13 Out. '29 lia Mnttlchury V. Taylor (1892) 22 Ont. 312 93, 405,420 Aliituiil Life AsHuraiice Society V. Langley (1886) 32 Ch. D. 460 318 Me MeAi'tliur V. I'rittie (1881) M('Ca))o V. Thompson (18')?) McCarogher v. WhieUloii (1864) McOausland v. McCallum (1882) Mc'Cormick v. MeCormick (1S74) Mc(!iiaiK V. Barber (1898) McDermid v. McDermid (1879) McDonald, McDonald & Marsh, L'r (1879) McDonald V. P:iliott (1886) McDonald v. Hinie (18(i8) McDonald v. McDonell (1864) McDonald v. Mcintosh (18r)l) McDonald v. McMillan (1864) McDonald v. Reynolds (1868) McDonald v. Kodger (1862) McDonald v. Wright (1866) McDonell v. West (1868) ^IcDono)igh V. Dongherty (1862) McDoiigall V. Ciunphell (1887) McDougall V. McDougall (1868) McDougall V. Lindsav Patter ) /.or,. \ Mill Co : |il8H4) MfGillicuddy v. Griftin (1873) Mcintosh V. Ontario Bank (1872) Mclntyre v. Canada Co (1871) Mclntyre v. Thompson (1884) McKay v. Davidson » (1867) McKay v. Grant (1893) McKay v. Howard (1883) McKay v. McFarlane (1872) McKay v. Mitchell (1860) McKay v. Keed (1864) McKeen v. McKay (1875) McKibbon v. Williams (1897) McKiiinon v. Anderson (1S71) McLaren v. Fraser (1870) McLaren v. Miller (1874) McJjean v. Burton (187()) McLean v. Chisholm (189'») McLean v. Wilkins (1887) 29 Gr. ftOO 260 6 Gr. 17i> 434 34 Beav. 107 173 3 Ont. 305 137 6 F.R. 208 266 29S.C.K. 126.-91,92,93, 354, 355 7 P.K. 457 108 8 I'.K. 88 294 12 Ont. 98 99, 101, 113 15 Gr. 72 392 2 K. & A. 393 379, 434 8 U.C.R. 388 382 23 U.C.H.302 437 14 Gr. 691 421, 434 9 Gr. 75 249 12 Gr. 552 260 14 Gr. 492 112 10 Gr. 42 336 6S.C.R. 502 210, 365 14 Gr. 267 43 I 10 P.R. 247 .) o-ifi oATf:. McLellan v. Maitliind (1852) McLennan v. McLean (1879) McLeod V. Avey (1888) MeLeod v. Wadland (1894) McMaster v. Hector (1872) McMichael v. Wilkie (1891) McMieken v. Ontario Bank (1892) McMiekinj? v. Gibbons (1897) McMillan v. McMillan (189:J) McMillan v. McMillan (1894) McMillan v. Munro (1898) McMullen v. Free (1887) McMnllen v. Polley (1886) McNaughton v. Fraser (1855) McPhadden v. Bacon (1867) McPhelim v. Weldon (1862) MePherson v. Dougan (1862) McPherson v. MePherson (1883) McPliillips V. London Mntual Fire Ins. Co (1896) McQueen v. Phoenix Mutual Fire Ins. Co (1880) McVean v. Tiffin (1885) N Nanny v. Edwards (1827) National Bank of Australasia v. United Hand-in-Hand Co (1879) National Fire Insurance Co. v. McLaren (1886) National Provincial Bank of England v. Gaines (1886) National Provincial Bank v. Harle (1881) Nant-y-Glo &c. Ironworks Co. V. Tamplin (1876) Neil V. Almond (1897) Nelson v. Cochrane (1889) Nesbitt v. Kiee (1864) Nesbitt v. Tredenniek (1808) Neve v. Pennell (1863) Nevitt v. McMurray (1886) Newbould v. Smith I (1889^ Newcomb v. Bonham (1681) Newman v. Newman (1885) Newman v. Selfe (1864) Newton v. Chorltou (1853) KKFERENC?:. PAGE. 3 Gr. 164 385 27 Gr. 54 386, 390, 391 16 Ont. 365 40 25 Out. 118 302 8 C.L.J. 284 107, 119 18 Out. App. 464.77, 245,410,416 20 S.C.R. 548 6 24Ont.App.586.103, 104, 105,202 24 Ont. 181 35 21 Ont. App. 343 303 25 Ont. App. 288 302 13 Out. 57 354 12 Ont. 702 370 3 All, (New Bruns.) 247... 44 13 Gr. 591 343, 397 5 All. (New. Bruns.) 358... 88 9 Gr. 258 332 10 P.R. 140 305 23 Ont. App. 524 125 4 S.C.R. 660 123 13 Ont. App. 1 296 4 Russ. 124 253 4App.Cas.39l{;iJ;\*9^2','288 12 Ont. 682 126, 129 31 Ch. D. 582 284, 285 6 Q.B.I). 626 218 35 L.T. 125 333 29 Ont. 63 84, 101, 175, 435 13 P.R. 76 219 14 U.C.C.P. 409 158 1 Ball & B. 29 26 2 H. & M. 170 314 14 Ont. App. 126 302 33 Ch. D. 127 1 077 079 14 App. Cas. 423.. i ••" ' " 1 Vern. 7 356 28 Ch. I). 674 217 33 Beav. 522 243 10 Ha. 646 94 lii TAIII.K «»l" (ASIX CASK. liATK. I!KKKH1;NTK. PAUK. Niiif^aia Falls Intcnisitloiiiil Hrid^B Co. v, (.ireut Wt'stein Uuihvny Co. (ISUIl) '22 V.VAi. '>i)2 'MtU Nlchol v.Alleiil)}- (lHSi») 17 Out. '.'7") 'jyi Nicholls V. Maynard (1747) li Vtk. 51'J: )8 R.C. 141.. 115 Nichols V. Watson (1876) 23 Gr. 00(5 41;") Nickl.' & Walkcvton, J{c (ISSG) 11 Ont. 4:j:{ V>ii[\ NMooI V. Mwin (1878) 7 I'.K. :}31 4:55 v • ,„ , l■lOl^^\ / -9 Bi'av. 'J4(j ) .,,., Noiris v.ChnmbreH (1801) j ;j jj^, ,^j j.i ^ ^] r^j.-;. j" -i')! Norris v. MeadowH (188l>) 7 Out. Api). '237 4'J4 North of Scothmd Alortgafre Co. V. G(M'man (1880) 31 r.C.C.P. 340 323 Noi'tli of Scotland Mortgage Co. V. Udell (1882) 4G U.C.R. 511 87.323 Nova Scotia Mining Co. v. Greener (1808) 31 N.S.R. 180 34S Noyes v. Pollock (1885) 30 Ch. D. 330 157 Nntt V. Easton [1800] 1 Ch. 873 103 O Oakcley v. Pasheller (1830) O'Brien v. Cogswell (1800) Odell V. Bennett (1880) Odell V. Doty (1808) O'Donohoe, lie (1868) O'Donohoe v. Whitty (1882) O'Donohue v. Hembroff (1873) Oldham v. Stringer (1884) Oliver v. Hinton [1800] Omnium Securities Co. v. Canada Fire and Mutual Ins. Co (1882) Ontario Industrial Loan etc. Co. v.Lindsey (1884) Orme v. Wright (1830) Orrett, Ex parte (1837) Otter V, Lord Vaux (1856) -1 r4CI. & F. 207. ..\ .... 04 1. 10 Bli. N.S. 548 J 17 S.C.R. 420 13 P.R. 10 206 237 IChy. Ch. 207 4 P.R. 200 . 265 294 2 Ont. 424 182 U.C.L.J. 312 W.N. 235 257 200 2 Ch. 204 207 1 Ont. 404 128 }(1874){ Overend v. Oriental Financial Corporation Owen v. Homan (1853) Oxenham v. Ellis (1854) 4 Ont. 473 3Jur. 10 3 M. & A. 153 .... 2 K. & J. 650 10 I)e G. M.& G. 7 Ch. 142 .. I 7 H.L. 348) ••• 4 II.L.C. 007 18 Beav. 593 200 193 20 038 105, 320 04 94 157 Pache V. Riley (1866) 3 E. & A. 215 348 Pagetv. Ede (1874) L.R. 18 Eq. 118 200 Palkv. Lord Clinton (1805) 12 Ves. 48 362 Palmer v. Earl of Carlisle (1823) 1 S. & St. 423 213, 218 TABLE OK CASKS. Illl f 'J- Bonv. :t4!» ) „j, j)Q \-JH Boav. :i41 f ^"' ""• 12:J U.C.C.P. 5H(J 'J Coll. 241 3 E. & A. 215 G Mndd. 11 ( 24 Out. :j7:j...\ \:U) C.L..I. 140 J 23 Gr. 179 79, 22 N.S.U. 83 (I Dr. & Sm. 143 ..A I 2 l)e O.J. & S. 152 I 148, "jL.K. 2 H.L. 1 I U4K.C. 411 j CASE. DATK. KKKKKKNCK. Palmer v. Hendrie (1859) Piilniei' V. Winstanley (1874) Piinncl! V. Hurley (1845) Piirkf V. Hiley (18C6) Piirker v. Calcriift (1821) Parker, AV, Parker v. Parker (1894) Parker v. Vine Growers' Assoc. (1870) Parker v. Willett (1889) Parkinson v. Hanbury (1800) Parks V. Bishop of New West- minster (1897) Parr v. Montgomery (1880) ,. ^^' • I,. f (1823) Parry v, \\ ri<,'h^ | (1828) Parsons v. Bank of Montreal ...(1808) Parsons v. Queen Insurance Co. (1878) Patch V. Ward (1807) Paterson v. Holland (1800) Patey v. Flint (1879) Paton V. Wilkes (1800) Patrick v. Walbourne (1890) Patterson v. Gilbert (1888) Patterson v. McLean (1891) Patterson v. O'Reilly (1882) Patterson v. Tanner (1892) Paul V. .Johnson (1800) Paxton V. Smith (1889) Peareev. Morris (1809) Pearman v. Hyland (1802) Pearse v. Hewitt (1835) Pease v. Jackson (1808) Peers v. Allen (1872) Peers v.Ceeley (1852) Pegg V. Hobson (1887) Pegge V. Metcalfe (1850) Pelly V. Wathen (1849) Penn v. Lockwood (1850) Penn v. Lord Baltimore (1750) Penner v. Canniff (1808) Penrhyn v. Hughes (1799) People's Loan and Deposit Co. V. Grant (1890) 18 S.C.K. 202 I'A 33 C.L.J. .302 (B.C.) 27 Gr, 521 41, 1 Si. St. 309 "I 5 Russ. 142 ) 15 Gr. 411 I 29 U.C.C.P. 188,211) 17 App. Cas. 90 ) • 3 Ch. 203 253, 254, 8 Gr. 238 48 L.J. Ch. C90 8 Gr. 252 27 Ont. 221 12 P.K. 052 21 Ont. 221 74, lOL.R. Ir. 304 22 Ont. 304 190, 12 Gr. 474 151, 152, 18 Ont. 178 5 Ch. 227 362, 22 U.C.R. 202 7 Sim, 471 3 Ch. 570 19 Gr. 98 246, 15 Beav. 209 14 Ont. 272 5 Gr. 628 /7 Ha. 351 \ 11 DeG.M.&G. 16/ 1 Gr, 547 150, 152, 1 Yes. Sen. 444 1 Chy. Ch. 351 5 Yes. 99 157, (iK. 269 370 220 300 142 357 207 221 179, 194 73 433 324 365 121 268 219 240 209 296 257 334 148 419 153 100 363 338 353 391 308 285 88 433 314 251 209 230 205 104, 111, 113, 114 liv TAIILK OK (ASKS, I (1804) CASK. DATK. I'cpc v. City aiul Siiliurbuii \'vr- muiiciit liiiildiiiK Society [iHillt] I'crry v. linrkor (lH()(i) I'crry v. llciidciHOn (1847) IVrry v. Koiuio (18:((;) I'fiTy V. I'orry (18K4) IVrry v. Wiilker (IHri.")) IVU-rkiii V. Mc'Fnrlime (18H4) I'rto V. Hamiiioiid (18(10) IVto V. Wi'liaiul \{y. Coniitiiny . (18(iL') PluTu' v.Uillan (l«4r)) Plu,'e (18")9) I'hillipiiHV. I'roiit (18i)8) I'itTC'o V. ("aniidii Permanent Loan and Savinj^s <'o... Pierce v. <'nnavan (1882) I'inliorn v. Soiister (18");!) Pipe V. Shafor (18(iS) Pitt V. Chohnondeley (17')4) Piatt V. AnhbridKe (180,')) Piatt V. Grand Trunk KailwayCo. (1886) Piatt V. Mendel (1884) Pledt,'e V. Can- [IHUr)] Pled>,'e V. White [18'J«] Polglass V. Oliver (18:n) Pooley V. Ilarradino (IH'u) Pope V. Biggs (]8t>!)) Popple V. Sylvester (1881>) Portinan v. Paul (1804) Potter V. Edwards (18r)7) Poulett, Earl, v.Viscount Hill [1893] Powell V. Peck (1888) Powney v. Blomberg (1844) Pratt.v. Bunnell (1891) Pratt v. Hawkins (1840) Pressy v. Trotter (1878) Prince v. Wade (1891) Prince of Wales etc. Co. v. Palmer (1858) Prittie V.Connecticut Fire Ins. Co(1890) Prosser v. Kice (18r)9) Prout v. Cock [1890] Prythereh, lie, Prythercli v. Williams (1889) Pugh V. Heath (1882) UKKKKKNCK. PAfiK. 2 Ch. :tll 31 i;j Ves. 198 80 :» r.C.K. 480 276 li..I.\.S. Ch. (7 208 10 P.U. 27.') 84, IH.") 24 L..I. Ch. :il9 144 9 Ont. App. 429 304 29 Beav. 91 228 9 (ir. 4;')-) 210 .') Ha. 1 :jr)3 8 I'.K. 408 233 UlCli. n. 104 3r)2 4 !).•({. iV ,l..'):il ;{23 12 Man. \i. 143 80, 157 ( 2") Ont. ()71 \ .,„ \23 Ont. App.r)10 ... i •"* 7 Ont. App. 187 424 8 Kx. 703 54 1 Chy. Ch. 251 151 2 Ves. Sen. 505 412 12 dr. 105 268 12 Ont. 119 354 27 Ch. 1). 240 2.'J4, 255, 320 1 Ch. 51 315 A.C. 187 313, 315, 319 2 Cr. & J. 15 .367 7 E. & B. 431 94 9 B. & C. 245 147 22 Ch. I). 98 Ill, 115 10 Gr. 4.58 219, 266 20 L.J. Ch. 468 86 J1<"1.. 277 \ - .„ \02L..I.Ch.40G.... / '*•* 15Cac.App. 138. 49,111, 112, 113 14 Sim. 179 367 21 Ont. 1 440, 441, 443 15 M. & W. 399 283 26 Gr. 154 3.35, 336 14 P.K. ,351 435 25 Beav. 005 224 23 Ont. App. 449 124, 217 28 Beav. 08 392 2 Ch. 808 363 42 Ch. D. 590 133, 144 7 App. Cas. 235 283, 383 M «v m ^ 1 •iai;m: ok casks, Iv CAKE. I'ATK, IJKKKKF.NCK. I'\<.r,. Pmiii.'tt, /vV iKiric (IHM)) i<; cii. I), 'j'jti .vj, r^->, HI I'unloin V. l'!tv<-y (IKittij 'J(; S.C.K. llil ;i«il I'urdv V. I'lirkH (IhH.'l) <• I'.K'. tJ4 '-MO, 'J4(! t^uum'll V, l;.'.-kf()nl (iHHi) 1 Mii.ld. L'(il) .. Queen's ("<)lk'>,'(' v.Cliixtoii (1804) Un Out. 'JK'J (iiiii't V. ','uc.Mi (IS'U) 1!) S.C.li. riio u l{a(.%'»'tt. A'r, rx i>((rlt WilliiiiiiK (Ih.KO) HI <'li. D. 117 Utikcstruw V. HrewtT (17liH) ■_'!'. Wins. .')Hl UimiHoy V. McDonakl (1H8(I) H I'.W. l'h:j KiinniH V. Dow (18»;]) M I'.K. 'Jilt . Kiilison V. McrHiu- (IH)!>) 1(1 (iv. (iK.*) . KutcliJT." V. Hiirnara (1871) (iCli.O')!] Kiitiil.iiii V. CulbcrlHon (1875) '_'2(ii'. 465 Ueiil Hstiito Loiui Co. v. (Snnvd- liotisc, y.V (IK li(14 (> 4;t:; (]8 '-'2 Out. 449 2()i{, 1 n. i^ li. Kil '2',i Ont. 5.VJ 1> Atk. 22;) 4 I'.R. 27 f 17 Ont. (515 \ 17 Ont. A] >p. 421 J Reid V. Whitebread (1864) | 10 Or. 44() 2 E. & A..')80. Reid V. Wilson (1881) Reinhart v. Shutt Remer v. Stokes Rennie v. Hloek Renwiek v. Berryman Reynolds v. Allan Rice V. George Rice V. Murray Richards v. Chamberlain Richards v. Cooper , Riehardrt, lie, Humber Ricliurds Richards v. Morgan Richardson v. Horton ..(i.:S8) ..(1856) (1896) ..(18.86) .(1852) .(1872) ..(1884) ..(1878) .(1842) r. (1890) ..(175;i) .(i84;j) :i Man. H. 116 226 :t;i9 •III :i24 :ioi 210 141 295 112 296 213 191 423 367 154 254 296 205 301 144 308 f 9 I'.K. 166 \ \l8C.Ii.J.58 i 15 Ont.:j25 4 W.H. 730 26 S.C.K. 3.56 3 Man. R. 387 10 U.C.R. .350 19 Gr. 174 2 Man. R. 37 25 Gr. 402 5 Beav. 304 249, 45 Ch. D. 589 4 Y. & C. Kx. App. 570 7 Beav. 112 I\l TAULE OF ('ASE.S. CASE, UATK. ,,. , , v / (1H70) Itieliaruson V. Yourifje •< mo7i\ Ilichmond v. Evans (1801) Riffht V. Bucknell (ISIll) RiKney v. Fuller (ISoS) Kitchie, /.V, Seweryv. Ritchie. ...(ISTfi) Rithet V. Bcaven' (1897) Rohl) V. Murray (1800) Rol.erts, AV (1880) Roberts v. Williams (18^4) Rol)ertson, Re (1877) Ro))ertson v. Burrill (189")) Robertson v. Hetherington (1888) Robertson v. Loekie (1840) Robertson v. Norris (18r)8) Robertson v. Robertson (1878) Robinson v. Chisholm (1894) Robinson v. Cook (1884) Itobinson v. Dobson (1805) Robinson v. Trevor (188;}) Robson V. Arjscue (1878) Rodburn v. Swinney (1889) Rodilam v. Morley (18r)7) Roe v. Braden (1877) Rogers v. Challis (1859) Rogers v. Dickson (1801) Rogers v. Lewis (1800) Rogers v. Ontario Bank (1891) Rogers' Trusts, Uc (1800) Rogers v. Wilson (1887) Rolt'e V. Chester (1855) Romanes v. Herns (1875) Rose V. Peterkin (1885) Rosebatch v. Parry (1879) Rosenburg v. Northumberland Building Society (1889) Ross v. Stevenson (1877) Rouse V. Bradford Banking Co. [1894] Rowland v. Burwell (1888) Royal Canadian Bank v. Kelly.. (1809) Rudge V. Richens (1873) Rumble v. Moore (1808) Rumney and Smith, Re [1897] Rumsey v. Thompson (1800) Rushworth's Case (1070) Russ V. Mills (1859) KEFEREXCE. PAOE. 10 Eq. 295 \ ,,„, ch. 478 ; '*"' 8 Gr. 508 188 f2B. & Ad. L»78...\ ..,„ \;{0 R.R. 50;{ j •*'" 4 Gr. 198 24:{ 23 Gr. 00 257 5 B.C.R. 457 14 13 P.R, 397 73 14 Ch. 1). 49 Ill 4 Ha. 129 289 •24 Gr. 442 444 23 Ont. App. 350 100 8 C.L.T. 141 238 15 Sim. 285 180 1 Giff. 421 102 25 Gr. 480 440, 443 27 N.S.R. 74 5 Ont. 590 139 11 Gr. 357 240 12 g.B.l). 423 391 25 Gr. 407 232 10 S.C.R. 297 199 1 DeG. & J. 1 102 24 Gr. 589 299 27 Beav. 175 19 lOU.C.C.P. 481 353 12 Gr. 257 225, 305 21 Ont. 41C 138 1 Dr. & S. 338 107 12 P.R. 322 402 20 Beav. 010 308 22 Gr. 409 201 13 S.C.R. 077 304 27 Gr. 193 257 22 Q.B.D. 373 29, 30 7 P.R. 120 249, 320 / 2 Ch. 32 I LApp. Cas. 580/ ''^ 12 P.R. 007 230 19 U.C.C.P. 190 49 L.R. 8 C.P. 358 91 1 Chy. Ch. 59 229, 230 2 Ch. 351 105 8 Gr. 372 246 Freem. Ch. 13 26 7 Gr. 145 40 3 ■I I 1 M i i i TAHLK OF (ASKS. Ivii CASR. Bussel V. Smitliies ... Kusscll V. Robertson Kussell V. Russell Russell V. Russell Hutlierfnril v. Rutherford Ryckniau v. The Canada Life Assui'ance Co. Sadler v. Worley 8t. .lohu V. Rykert. Halnion v. Dean Saloway v. Strawbridjye Saniis v. Ireland Sanders v, Davis Sanders v Sanders Sanderson v. Inee Sandon v. Hooper Sands v. Thompson Sani;ster v. Cochrane Sanguinetti v. Stuckey's Bank- in},' Co. (1>) Santlev v. Wilde. Sargant v. Read Satchwell v. Clarke Saunders v. Milsome Sayles v. Brown Scarlett v. Birney Scarlett v. Nattress Sclater v. Cottam Scobie V. Collins Scott V. Morley Scott V. Vosburg Scottish American Investment Co. V. Prittie Scottish American Investment Co. V. Sexton Scully V. Robertson Seager, l{t, Seager v. Aston Searles v. Sadgrave Seatli V. McIIroy Seear v. Lawson ).\Ti:. 17!»4 ISnl) 1783 1881 1890 187(1 B 1894 1884 18,-)! 185;') 1879 188.-) 1881 1809 184:J 188:5 1884 1890 1899 187G 1892 18()6 1880 i89;j 1890 18.-)7 189r) 1887 1880 189;i 1894 1894 18,')7 18,"),-) 1807 1880 Selby V. Pomfret (1801) KEKEUKXCK. I'AOK. 1 Anst. 90 144 1 Chy. Ch Tl 12l! (1 B.C.C. 2091 .,„ U8 R. C. 20... j "' 28 Or. 419 .'500 17 P.R. 228 249, 425 17 Or. 550 :5;}2 2 Ch. 170 9, 205 10 S.C.R. 278 Ill, 114 ;5 Mac. & G. ;544 145, ;5;5l ( 1 K. & J. .'571 \ ,-o \7 De G. M. & G. 594 1 ^'- 4 Ont. App. 118 432, 4:5:5 15 Q.B.I). 218 i:58 19 Ch. 1). .'57;j 282, 382, 385 7 Gr. 383 180 Beav. 240 152 22 Ch. D. 014 390 28 Ch. 1). 298 392 1 Cii. 502 2:i6 1 Ch. 747.. ) 2 Ch. 474.. \ 183, 185 W.X. Y.Vl.) 1 Ch. D. GOO 1:54 |00L.T.04] \ .,.,., 18 Times L.R. 592J •"'"' L.R. 2 Eq. 573 19 28 Gr. 10 388 15 P.R. 283 265 23 Ont. App. 297 217 3 .Tur. N.S. G30 293 1 Q.B. 375 54 20 Q.B.D. 120 245 8 P.R. 33G 40 20 Ont. App. ;598 42, 220 2G Ont. 77 138 30 C.L.J. 472 370 3 Jur. N.S. 481 100 5 E. & B. G39 3G7 2 Chy. Ch. 93 292 15 cii. 1). 420 C.A 413 ( 1 .1.&H.3;50 \ ,,,„ \3 DeG. F. A: .1.595/ **^^ ■0 Iviii TAl'.LIi OF CASES. CASE. DATE. Sellick V. Smith (182(i) Sehvinv.riai'fit (1888) Senhouse v. Earl (ITo'J) Sentance v. Porter (1849) Seymour v. DeMarsii (188G) Sharp V. Sharp (18G7) Shaw V. Btiiuiy (]8()r)) Sheflield riiioii Banking Co., Ex parte, in cc Carter (1865) SiM'iiard V. Jones (1882) Shepherd v. Titley (1742) Sheppard v. Sheppard (1867) Sherboneau v. Jeffs (186!)) Shore, Re (1890) Shnttloworthv.Lowther (1802) Siehel v. Mosentha! (1862) Sievewright v. Leys (1882) Silverthorn v. Glazebrook (1899) Sinionton v. (Jraliani (1881) Simpson v. Home (1880) Simpson v. Smyth (1846) Sinclair v. James [1894] Skae V. Chapman (1874) Skinner v. White (1883) Slade V. Kigg (1843) Small V. Thompson (1897) Smart v. McEwan (1871) Smeeton v. Collier (1847) Smith, A'.f/w We (1842) Smith V. Brown (1890) Smith V. Chichester (1842) Smith V.Columbia Ins. Co. (1851) Smith V. Eggington (1874) Smith V. Elliott (1878) Smith V. Lloyd (1854) Smith V. Maelure (1884) Smith V. Pears (1897) Smith V. Phillips (1837) Smith V. Smith (1835) Smith V. Smith (1852) Smith V. Smith (1889) Smith V. Smith [1891] Smith V. Spears (1892) Smithett v. Ilesketh (1890) Smythe v. Martin (1898) REKEKENCE. PAGE. 11 Moo. 459 352 38 Ch. 1). 273 181 2 Ves. Sen. 449 265 7 Ha. 426 289 11 P.R. 472 2::4 2 Chy. Ch. 244 216 2 l)e G. J. & S. 468 194 13 L.T. N.S. 477 20 21 Ch. I). 469 151, 411 2Atk.348 307 14 Or. 174 444 15 Gr. 574 299 6 Man. R. 305 187 7 Ves. 586 289 30 Beav. 371 19 9 P.K. 200 258 30 Ont. 408 315 8 P.K. 495 112 28 Gr. 1 290 1 E. & A. 9 8, 385, 431 3 Ch. 554 43 21 Gr. 534 385 19 C.L.J 115 216 3 Ha. 35 205, '208 28 S.C.K. 219 77, 409, 417 18 Gr. 623 332 1 Exch. 457 7 2 M.D. & De G. 587 338 20 Ont. 165 84, 185 1 Conn. & Law. 486. ~) 2 Dr. & War. 393 \ 26, 46 18 R.C. 128 J 17 Penn. 253 129 L.R. 9 C.P. 145 146 25 Gr. 598 89 9 Ex. 562 272 32 W.R.459 135 24 Ont. App. 82 418 1 Kee. 694 324 1 Y. & C. Ex. 338 17 3 Gr. 451 439 18 Ont. 205 319 f 3Ch.550.... \ „-fl 1 18 R.C. 119/ •*•"* 22 Ont. 286 191 44 Ch. I). 161 254 18 P.R. 227 234, 235 .M TAl'.LE OF CASES. li: CASE. DATE. Sol)er V. Kemp (I>^'i7) Solomon and Meagher's Con- tract, iff (1889 Sovereign Life Ass. Co. v. ])oil(l[189l2 Spencer-Bell v. London & South- western Kaihvay Co (1885 Spencer's Case Spooner v. Sandilands (1842 Squire v. Ford (185] Squire v. Pardoe (1891 Stanhope v. Mantiers (17()3 Stanley v. Grundy (1883 Stansfield v. Hobson (1852 Stark V. Reid (1895 Stead's Mortgaged Estates, Jle ..( 1876 Steeds v. Steeds (1889 Steers V. Rogers [1893] Steinlioff v. Brown (1865 Stephens V. Simpson (1866 Sterling v. Campbell (1862 Sterling v. Riley (1862 Sterne v. Beck (1863 Stevens v. Barfoot (1886 Stevens' Will, liv (1868 Stewart v. Rowsom (If^'f? Stinson v. Pennoek (1868 Stockdale v. Nicholson (1867 Stockton iron Furnace Co., AV . ..(1879 Stone V. Evans (1806 Stone V. Lickorish [1891 Strachan v. Murney (1858 Strange v. Redford (1887 Street v. Dolan (1871 Street v. O'Reilly (1868 Stronge v. Hawkes (1853 Sturgess v. Bitner (1861 Superior Savings and Loan So- ciety V. Lucas (1879 Sutcliflfe V. .lames (1879 Sutherland v. Webster (1894 Sutton v. Sutton (1882 Sweny v. Smith (1869 Swift v.Minter (1879 Swift V. Swift (1859 Swinbanks, /;,'.(• /xirte (1879 Swire v. Redman (1876 KEFEKENCE. \'.\son v. Wilkes (185G) Thomson v. Hamilton (1835) Thomson v. O'Toole (1888) Thorn v. City Rice Mills (1889) Thornboron£!;h v. Baker (1G75) Thorne v. Cann [1895; ( [1893 Thorne v. Heard \ [1894 I [1895; Thorneycroft v. Crockett (1848) Thornhill v. Manning (1851) Thornton v. France [1897] Thorpe, lie (1808) Threlfall, Re (1880) Threlfall v. Wilson (1883) Thurlow V. Mackeson (18(>8) Thynne v. St. Maur (1887) UKKKHKNCI'.. I'AOK. !» Ch. 1). 5(i8 308 13 App. Cas. 523 18 29 How. 71 122 23 Q.B.I). 239 71,218 23 Beav. 555 203 20 Ch. 1). 470 34 •H. /M n .-<• ) 15, 180, 229, 3 My. & Cr. G3 3G2 2 Q.B. 5G4 422 19 Gr. 271 104, 202 2 Ves. Sen. 23 'Ill 3 :\Ian. R. 4 264 L.R. 5C.P. 73 16 2 Y. & C.C.C. 31 286 10 Gr. 85 •. 84, 109, 227, 307 20 Ch. D, 724 401, 403, 404 4 Ch. 537 206 1 Gr. 147 213 1 N.B. Eq. 257 118, 288 7 Ont. 586 139 9 Jur. N.S. 863 381 28 Gr. 35 188, 189 44 Ch. D. 492 181 21 Ont. App. G37..404, 418, 420 5 Gr. 594 7G, 406, 415 5 U.C. O.S. Ill 367 21 N.S.R. 1 118 40 Ch. D. 357 78 f 1 Ch. Ca. 283 ) \ 3 Swanst. G28 \ 340 (l8 R.C. 231 ..j A.C. 11 322, 323, 324, 421 3 Ch. 530) 1 Ch. 599 \ 105, 204, 281 A.C. 495. J 2 H.L.C. 239 155 1 Sim. N.S. 451 267 2 Q.B. 143 274 15 Gr. 76 344, 397 16 Ch. D. 274 54 8 P.l). 18 215 L.R. 4 Q.B. 97 196 34 Ch. I). 465 216 'I TAllLE OF CASES. Ixi CASE. DATE. HKrEHENCK. ['A(iE, Tichboviie v. VVier (1893) 4 K. 20 2H1 Tiffiiiiy V.Clarke (1858) (5 Gr. 474 ;i29 Tillett V. Nixon (1883) 25 Ch. D. 238 133 Titley V. Wolstenholnie (1844) 7 Beav. 425 1C5 ToiiiH V. Wilson (1802) 4 B. & S. 442 370 Toronto Belt Line Ry. Co., AV..(1895) 20 Ont. 413 4'2 Totten V. Doiifrlas (1808) 15 Gr. 120 332 Totten V. Wilson (1870) 17 Gr. 233 110 Towvrson v..laekson [l^^l] - Q-B. 484 147 Tracy V. Lawrence (1H54) 2 Dr. 403 180 Traey, /iV, Scully v. Tracy (1894) 21 Ont. App. 454 370 Train V. Smith (1875) cited in 17 P.K. 227 205 Trent V. Hunt (1853) 9 Exeh. 14 147 Trestrail V. Mason (1878) 7 Ch. 1). 055 422 Trimleston, Lord, v. Hamil (1810) 1 Ball. & B. 377 148 Trinity College v p,i; (1885) 8 Ont. 280 209 Troughton V. Biukes (1801) Ves. 573 72 Truman & Co. v. Kedgrave (1881) 18 Ch. D. 547 134 Trust and Loan Co. V. Boultou..( 1871) 18 Gr. 234 305 Trust and Loan Co. v. Cuthbert(1808) 14 Gr. 410 45, 307 Trust and Loan Co. v. Gallagher(1879) 8 P.K. 97 302, 387 Trust and Loan Co. v. Lawrason(1881) (jq^^ q K^'oV'J*^^) ^^' "*^' ^''^' '^^ Trust and Loan Co. v. Kirk (1880) 8 P.K. 203 108 Trust and Loan Co. V. McCarthy (1883) I J*"^(^P^^Y'oJ;o*^ } 240 Trust and Loan Co. v. McKenzie(189G) 23 Ont. App. 107 .. j'^^' ?!^' ?,h Trust and Loan Co. v.Stevenson(1892) 20 Ont. App. 00 1 ^^-' \Ji'_' ".{i' Trust Corporation of Ontario v. Hood (1890) 23 Ont. App. 589 339 Trusts Corporation and Boehmer, lie (1894) 20 Ont. 191 300 Turley v. Williamson (1805) 15 U.C.C.P. 538 283 Turner V. Melbane (1892) 28 C.L.J. 324 137 Turquand v. Fearon (1879) 4 Q.B.D. 280 217 Tweedale v. Tweedale (1857) 23 Beav. 341 314 Tylee V. Hinton (1878) 3 Ont. App. 53 80, 374 Tyrwhitt v. Tyrwhitt (1803) 32 Beav. 244 322, 323 V Union Assurance Co., lie (1893) 23 Ont. 027 125, 315 Union Bank of Scotland v. National Bank of Scotland (1880) 12 App. Cas. 53 311 V Vandelinder V. Vandelinder (1804) 14 U.C.C.P. 129 12 Ixii TAHLE <»F CASES. CASE. DAT^. REFERENCE. PAGE. Van Gelder, Apsimon t& Co. v. Sowerby Bridge etc. Co (1H90) 44 Ch. D. 374 352 Vannoriimn v. McCarty (1KG9) 20 U.C.C.P. 42 432 Van Wagner V. Findlay (1H()7) 14 Gr. 53 300 Vintv. Padget (1858) 2 De G. & J. 611 316, 319 Voisey, Kx parte, iu re Knight .(1882) 21 Ch. D 51, 52, 53, 54 W Waddell v. MeColl (18()H) Waddell v. Smyth (1871) Wade V. Paget (1784) Wafer v. Taylor (1852) Walhampton Estate, Re (1884) Walker v. Bradford Old Bank ....(1884) Walker V. Dickson (1892) Walker v. Jones (181)6) Wallace v. Kelsall (1840) Wallbridge V.Martin (1868) Wallingford v. Mutual Society... (1880) Wallis, lie, ex parte Lickorish ...(1890) Walmsley V.Milne (1859) Wanty V. Kobins (1888) Ward V. Carttar (1865) Waring v. Ward (1802) Warner v. Don (1896) Warner v. Jacob (1882) Warnock v. Prieur (1887) Warren v. Taylor (18()2) Wason V. Carpenter (1867) Waterfall V. Penistone (1856) Waterhouse v. Worsnop (1888) Waters v. Shade (1851 ) Watkins v. McKellar (1859) Watson V. Dowser (1881) Watson V. Lindsay (1879) Watson V. Mid- Wales Kailwav Company '..(1867) Watt v. Feader (1862) Watts, lie, Smith v. Watts (1882) Watts V. Symes (1851) Wavcll V. Mitchell (1891) Wayne v. llanham (1851) Weaver v. Vandusen (1880) Webb, AV, Lambert v. Still [1894] Webb V. Smith (1885) 14 Gr. 211 117, 150, 152 3 Chy. Ch. 412 260 1 B.C.C. 363 197 9 U.C.R. 609 352 26 Ch. 1). 391 316, 317 12 Q.B.D. 511 71 20 Ont.App.96..228,407,415, 416 L.R. 1 P.C. 50 89 7 M. & W. 264 369 2 Chy. Ch. 275 232 5 App. Cas. 685 117 25 Q.B.D. 176 293 7 C.B.N.S. 115 138 15 Ont. 474 296 L.R. 1 Eq. 29 3C6, 378 7 Ves. 332 76, 406, 415 26 S.C.R. 388 135, 137 20 Ch. D. 220 186, 200 12 P.R. 264 227, 241, 373 9 Gr. 59 250, 434 13 Gr. 329 40, 434 6 E. & B. 876 136 59L.T. 140 216 2 Gr. 4.57 363 7 Gr. 584 194, 307 28 Gr. 478 303 (27 Gr. 253 \ .^ \6 Ont. App. 609../ ^'^ L.R. 2 C.P. 593 318 12 U.C.C.P. 254 330 22 Ch. D. 5 288 1 De G. M.& G.240 315 I W.N. 86; \ 1 64 L.T.560.. J "'•' 9 Ha. 62 208 27 Gr. 477 323 1 Ch. 73 412 30 Ch. D. 192 423 f i •,;f TAHLE OF CASES Ixiii CASE. Webber v. O'Neil Webster v. Cook WesgProsser v. Evans Welch V. National Cycle Works Wellby V. Still Wells V. Trust and Loan Co. West V. Fritchie West V. Jones West V. Williams West of Knf^liiiid Fire Ins. Co. f V. Isaacs I Westerell v. Dale Western Canada L. & S. Co. v. Court Western Canada L. & S. Co. v. Dunn Western Canada L. & S. Co. v. Heimrod Westmoreland etc. Slate Co. v. Fielden Wethered v. Cox Whatton v. Cradock Wheeler v. Brooke Whiteomh v. Minchin White V. Bastedo White V. City of London Brewery Co White V. Hillaere Whitfield V. Roberts Whittier v. McLennan Wickens, Ex: parte Wickens v. Shuckburgh Wigle V. Stetterington Wiley V. Ledyard Wilgress v. Crawford Wilkes V.Collin Wilkins v. McLean Wilkinson v. Candish Williams, E.r parte Williams, Ex parte, in cf Thomp- son Williams v. Balfour Williams v. Bosauquet Williams v. Haun Williams and McKinnon, Re .. DATK. 1804) 18()7) 1804] 18»,'>] 188«) 189:J) 1884) 1848) 18-)!) 1899] 18»()] 1897] 1797) KKKKRENCE. PAGE. 10 Gr. 440 414 2 Ch. 542 8.") 2 Q.B. 101. 1 (^.B. 108 I r)4, 115 55 L.T. 673. W. N. 91 254 293 (9 Out. 170 ...K... ou.-, .,07 o,,H 120C.L.J.407J^'^*^'-^'''''"'''*"^ 3 Exch. 216 52, 54 ->05. 1 Sim. N.S I Ch. 132... 2Q.B. .■}77....\ , 1 Q.B. 226 ... i ^ 7 T.K. 306 288 312 28 21 1877) 25 Gr. 151 204 1883) 9 P. It. 587 212 1892) 28 C.L..J. 185 254 1891] 3 (Ml. 15 54 1888) W.N. 165 235 1836) 1 Kee. 267 253 1894) 26 Out. 96 403 1820) 5 Madd. 91 193 1869) 15 Gr. 546 445 1889) 1839) 1861) 1855) 1898] 1898) 1872) 1883) 1888) 1869) 1885) 1854) 1832) 42 Ch. D. 237 152 3 Y. & C. Ex. 597 318 7 Jur. N.S. 1268 269 13 U.C.R. 638 371 1 Q.B. 543 83 78 L.T. 213 83 19 Gr. 512 304, 365,413 f 10 P.K. 182 \ ..r. iri o'K- 120 C.L.J. 142. I •■^'' ^^^' -^•^ 246 324 150 370 285 12 P.K. 658 240, L.H. 8 Eq. 338 10 Out. 58 13 Ont. App. 467 14 S.C.K. 22 5 Ex. 91 1 D. & C. 489 1877) 7 Ch. D. 138 57 1890) 18 S.C.K. 472 77 1819) 1 Brod. & B. 238 21 1864) 10 Gr. 553 261 1891) 14 P.K. 338 224 IPS Ixiv TAllLE OF CASES. CASK. Williams v. Owen Williaiiisoii V. (Jordon WillK V. ijxiiX Wilison, A'.r jxtrte WilHoiiv.BaleiiiTeBBi'ookSteiuu- slii]) ("o ■\Vilsoii V. ('anipbfll Wilson V. Camiibell Wilson V. Cluei' Wilson V. Fleming Wilson V. Kyle Wilson V. Miles Platting Build- ing Society Wilson V. Kykei't Wiltonv. Dnnn Wincliester, Bishop of, v. Paine Withington v. Tate Wolff V. Ogi Ivy Wolverliamjiton and Stafford- shire Banking Co. v. George.. Wood V. Brett Wood V. Hewett Wood V. MeAlpine Wood V. Williams Wood V. Wood WoDdrnff v. Mills Wragg V. Denham Wright, E.c jxtric Wright V. Kirby Wriglit V. Leys Wright V. ]\[organ Wri.xon v. Vize Wyllie V. Pollen Wyndham v. Lord Egremont. DATE 1840 IHPJ 1888 I8i;j I89:i 1879 189:5 1841 189:J 1880 1889 188() i8r)i 1805 1869 1888, 1883 18()'2 184G 1878 1819 1869 1860 1836 1812 1857 1884 1877 184'_' 1863 1775 Yarrington v. Lyon (1866 Yates V. Aston (1843 Yates, lir, Batcheldor v. Yates. ..(1«88 Yem V. Edwards (1857 York Union Banking Co. v. Artley (1879) 11 Ch. D. 205 HKFEUKNCE. PAGE. 5 My. & Cr. 303 5 19 Yes. 113 211 38 Ch. J). 197 234 2 V. & B. 252 352 I Q.B. 422 73 8 P.K. 1.54 HI 15 P.K. 254 80,81,238,261 4 Beav. 214 289 24 Ont. 388 66. 67 28 (!r. 104 332 22 q.B.lh 381 30, 31 14 Ont. 188 156 17 Q.B. 294 147 II Ves. 194 374 4 Ch. 288 .367 12 P.K. 645 -227 24 Ch. 1). 707 243 9 Gr. 452 260 8 Q.B. 91 136 1 Ont. App. 234 217 (4Madd.l8 i< II a Bills of Sale Act, 1882 Mortgagees' Legal Costs Act 169 173, 198 56 293 I XVI TAHLE OF STATITKS ANI> RULES. DOMINION STATUTES. CITED A&Sk YEAR. CHAP. SEC . TITLE OF ACT. AT l'A(^E Revised Statutes of Canada U M 1886 30 i") 6 <:;uiTency Act 11 369 369 ;u M «f a 7 i< t 369 .« u * t i i 9 11 369 <« n H 31 4 Dominion Notes Act 369 ♦• . , *• (« 120 45 Bank Act 36 . »» ♦* H 127 Interest Act 28 It \- it H i I 1 1 1 109 • 1, «• «'• i i o 1 1 109, 113,114 ,»? «« 4< t » 3 1 1 109 «» «« . H a 4 1 1 109 it (( <* i i 5 1 1 109, 110,115 .» «« ■ <« t i 6 1 1 109, ,115,118 «• « << i i 7 11 109, 356. 357 (< (< 4 ( ( i 26 . 1 114 53 Vict. 1890 31 11 64 Bank Act, 1890 35, 3() 35, 36 tt t< 11 68 n ( t 35, 36 «' <( 11 69 ^ i n 35, 36 i( <( 11 70 n ti 35, 3(5 .<( it 11 71 n a .35, 36 u (< 34 ] Act amending Interest Act 357 a (( ( i o 114 57 & 58 Vict. 1894 28 1 1 6 7 Land Titles Act, t t 1894 436 351 (1 <( 11 65 i i 76, 410 . i «i 11 73 i I 11 ( t fi 11 74 4 i 163 t f It It 75 H 164 K It 1 1 85 M 14 60 & 61 Vict. 11 '< 1897 8 1 1 2 3 Interest Act, 1897 110 110 < 7 Will. IV. TAHLE OF .STATUTE.S AND RULE.S. PROVINCE OF UPPER CANADA. YEAR. CHAP. SEC. TITLE OP ACT. 1834 1 1(5 Act amending Law of Real Property II " 'Jfi " " Ixvii CITKD AT PAGE 270, :f77 II II ^77 18:}7 li Act establishing Court of Chancery 7 PROVINCE OF CANADA. Consolidated Statutes of Upper Canada 1859 15 34 County Courts Act 12 Vict. 1849 73 Sale under Execution of Mort- gagor's Interest IG Vict. 1853 121 Recovery of Possession 27 Vict. 18G3 13 Sale under execution of Mort- gagor's Interest 29 Vict. 1865 18 19 Insolvent Act, 1865 " " 1865 24 Act respecting Registration PROVINCE OF ONTARIO. 290 431 277 431 278 304 31 Vict. 1868 20 60 32 Vict. 1868 6 38 Vict. 1874 16 1 39 Viet. 1876 7 R.S.O. 1877 51 71 II II 104 42 Vict. 1879 22 44 Viet. 1881 5 47 Vict. 1884 16 49 Vict. 1886 20 Act respecting Registration Law Reform Act, 1868 Real Property Limitation Act Amendment Act Ejectment Act Short Forms of Mortgages Dower Act 388 290 270 332 238 171 440 29 Ontario Judicature Act, 1881 38,287,322 Ontario Mortgage Act, 1884 185 Conveyancing and Law of Property Act, 1886 129' Act respecting Landlords and Tenants and Dis- tresses, 1886 5» 50 Vict. 1887 26 154 Ontario Insurance Act 129 R.S.O. 1887 77 Execution Act 40{> 102 2 Mortgages of Real Estate 289 II 30 II 11 185 107 Short Forms of Mortgages 171 122 6 Mercantile Amendment Act 217, 329 i< 7 II II (i 71 217,329 Ixvni TAMLE OK STATITKH AND lULES. I'liOVINCK OF UNTAKI()-C'(//i/iHuct/. ACT YKAIi.CIIAl'.SKr. TJTI-K OK ACT. AT J'ACIK 51 Viet. 188H 15 5 AmondiuK Law of MortKiiKen 168 KJ Vict. IHDO 27 1 I'owcrw of Halo in MortgageH 167, 168 50 Vict. 1893 5 Act roHpectinj; HlioriffH 347 <> t i 21 93 UeRiHtry Act, 1893 299 58 Vict. 1895 25 Act rewpecting Dowor 444 61) Viet. 1896 19 County Courts Act, 1896 291 60 Vict. 1897 15 5 Amendment Act 71, 329 R.S.O. 1897 31 28 Heir, Devisee and Assignee Commission 45 << « 51 " Ontario Judicature Act 3,53 <( (i " 36 11 •• 264 (« i» " .')8 (3) 11 11 322 «( «i 11 11 (4) 11 11 353 4( (« ti 11 65 8 Act respecting Lunatics 215 i i 1 1 " 14 11 II m 1 ( It " 15 II «i 174 , , _; ' *«. , , 11 72 1 Limitation of certain Actions 62, 202 *<■- ' 1 1 " 1 (b \ n «< 97 li I TAHI.K ol- STATirrES AND UULES. Ixix I'ROVINC'K OK O'ST AlilO— Con fin aed. '1 a(;t. R.S.O. I* 1 I* ti «< i( )< M >■ << • M U H li l( << (MTKl) AT I'AdK 1897 r. yi;ai{. ciiAi'. skc. title ok act. I (A) Liiuitiition of Certain ActioiiH l>7, OH M " 412 « •♦ '17, 98 «» (I 77 :( H •24 • ♦ (( !t7, 08 !»H, 00 Kxi'cutioii Act (1) ('-') (3) (1) (2) ' ' '>'i 20 27 28 29 :{0 (1) " (2) ;u 32 (< it M l< (< << ^1 il 78 Creditors' Relief Act 218 340 340, 01 01, 347 72, 347 347 m 217, 347 m m 430, 431 430, 431 430, 431 45,88,325,355, 409, 417, 433 88(1 119 1 (2) Law and Transfer of Property 121 it (a) i i (4) i i («) 3 4 12 30 30 37 30 I << 11 14 (( tl 88, 325 <( *( 325 (( (( 325 (( (( 171,214,230, 340 , 341, 394 (( II 343, 397 (< II 69, 70, 213, 394 (1) II 1 1 172, 342 (2) 11 «i 343, 395 (3) 1 1 < 300 n t ( a 97 <• 301, 310 1 1 i i 1 i 98 << 303; , 311, 313, 334 i i t ( t i 99 t( 311, 312 11 i i 138 33 Land Titles Act 10 «< i i 1 i 34 i< 112 t< i t i i 37 11 2ia (< t i i i 38 II 163 t< k t i i 50 II 440 t( 1 i 147 5 Act respecting Assignments and Preferences by Insol- vent Persons --0 II i i I i ')i (i\ " n II II II II II II 140 >■ i 1 10 ii 11 140 i i 153 7 Mechanics" and Wage Earners' Lien Act 296 I i 103 Married Women's Property Act 37 II t i 3 11 11 74, 75 II ( t 4 It 11 74. 75 II i i 15 II 11 215 i i i i 21 11 11 245 ( i 104 •) Dower Act 228,351, 438,441 1 i ( i 3 11 437, 439 II H 4 II 437 II i ( 5 II 43K, 441 Ixxiv TABLE OF STATUTES AND RULES. PROVINCE OF O^TABIO— Continued. ACT YEAR. CHAP . SEC . CITEU TITLE OF ACT. AT PAGE R.S. 0. 1897 1G4 7 Dower Act 177, 204, 221, 440 ,441 a 1 ( 8 177, 221 204, ,442 h (( t( 9 204,221 ,443 i 1 a 10 11 1 1 11 443 445 ( t ( k i 12 (1) '• 446 I a 1 1 (1 ('->) 1 1 446 t a a 13 (1) 1 1 446 t an 11 (2) II 446 H i i 11 (3) 1 1 446 t ( ( ( 14 (1) 1 1 447 [ H t i 1 1 C^) 1 1 447 U (( 15 1 1 447 (t <( IG 1 1 447 t( f ( 17 (1) 1 1 447 t n a (1 (2) 1 1 447 a I i II (S) 1 1 447 ( it ( < 18 1 1 447 t ( f ( 19 1 1 448 [ ( < a 20 1 1 448 I n n 21 1 1 448 22 1 1 (1) (2) 1 1 11 448 448 ' " 170 30 Landlord and Tenant's Act 60 1 ( < ft 31 ( ( ( < 68 ( k f ( ( 32 It 11 61 " 171 Overbold ing Tenants Act 141 174 45 Act respecting Solicitors 293 1 (1 i( 49 II 11 294 ' " 203 168 Insurance Act 124 1 11 11 1 1 (19) II 124 ' " 205 20 Loan Corporations Act 109, 116 1 ti 11 21 11 II 109 1 11 11 22 11 «« 109 : 11 It 23 " 109, 116 1 11 11 24 " •' 109 116 ACT. R.S.O. (( II u II 1 1 tl TAHLE OF STATUTES AND RULES. PROVINCE OF Q-STAMO—Continued. TITLE OV ACT. Loan Corporations Act Railway Act of Ontario Municipal Act YEAR. CHAP. SEC. 1897 205 25 207 lU 223 " 387 " 420 (1) " 640 (11) " 224 149 Assessment Act II 1 1 11 226 307 317 II Ixxv CITED AT PAGE 357 42 295 295 210 62 Vict. (2) 1899 11 53 56 13 Municipal Drainage Act Act respecting Property of Religious Institutions Act respecting Lunatic Asylums 29S U 215 215 Act amending Creditors' Re- lief Act 296, 297 PROVINCE OF NOVA SCOTIA Revised Statutes of Nova Scotia 1884 n it (( (( 48 Viet. 61 Vict. 1 1 (( (I (( (( 84 20 89 92 104 LXI. " 13 II II 112 124 Registry of Deeds Wills Secret Bills of Sale Judicature Act 1885 32 (3) (4) Limitation of Actions 804 429 135 328 322 353 270 Sale of Land under Execution45, 348,431 u II 2 1898 23 () 1 1 1 1 7 (i 11 8 M 1 1 9 (( 1 1 19 (1 1 1 77 Act to enable Executors and Administrators to release Mortgages II i» Deeds of Married Women (> «< (i (I (i It 45 394 344 438 437 437 440 439 437 Ixxvi TABLE OF STATUTES A\D RULES. PROVINCE OF NEW BRUNSWICK. ACT. YKAR.CIIAI'. SKC. TITLE OF ACT. (5 Will. IV. 18;]() 4:J '2 Limitation of Actions Consolidated Statutes of New Brunswick 1877 42 Attachment " "24 " 4;j ^1 Garnishment 47 Memorials and Executions " " ') " " " 7;j 1 Dower it 57 Vict. 1894 84 Limitation of Real Actions 10 Ejectment Act. CITED AT I'AGK 271 4:51 348 ;549 ;J49 4.31 :J49 438 437 270 377 238 PROVINCE OF MANITOBA. Revised Statutes of Manitoba 1891 45 24 J3evolution of Estates Act 178 i i i 19 " << 436 t i i 20 II II 351 4G o Distress and Extra-judicial Seizure s,59 i i ( .{ 11 11 II 63 48 Ejectment Act 238 53 22 Jlxeeutions Act 349 80 •ludgments Act 431 89 Real Property Limitation Act 270 ( i 20 " II 11 377 99 1 Act respecting Mortgages 332 i i 1) II II 332 i i 4 II II 360 133 81 Real Property Act 77 410 146 13 Trustee Act 394 11 i i 150 Wills Act 429 58 & 59 Vict. 1895 () 39 w Queen's Bencli Act 353 ( ( ( i i i i i (14) 1 1 95 TABLE OF STATl'TES AND RULES. NORTH-WEST TERRITORIES. ACT. YEAR. CHAP. SEC. TITLE OF ACT. 57 & 58 Vict. (D) 1894 28 G Land Titles Act, 1894 l( 11 1 1 (1 1 (( 1 1 ( 1 a 65 (( (( (1 i( 73 (.1 1 1 (1 II 74 tl i( u 11 75 ( ( 1 1 i ( II 85 Consolidated Ordinances II (( M «< i( (I (t a it 1898 21 10 (3) Judicature Ordinance " 10 (4) " 359 '* 41 Choses in Action Ixxvii CITED AT PAGE 436 351 76, 410 11 163 164 M 322 353 349 328 PROVINCE OF BRITISH COLUMBIA. Revised statutes of BritishColumbia 1897 63 3 II i< " " 4 II <( (( (( (( (< (< (( (I (1 11 II 1 1 " 5 " 6 " 7 123 40 140 141 Dower Act Limitation of Action Personalty Exemption Act Mortgagors' Relief Act. 488 487 489 377 429 238 ONTARIO RULES. WITH CORRESPONDING MANITOBA RULES. NO. OK MANITOBA CITED NAME OF SERIES. YEAR. RULE. RULES. AT PAGE Ontario Rules (1 1881 It 17 515 237 290 11 It 254 234 227 Consolidated Rules 1888 328 227 i i 1 1 329 (1 (( 330 227 (1 (t 331 227 (( (( 332 227 Jxxviii TAHLE OF fSTATlTES AND IIIILES. ONTARIO liVLEH—Continued. NAME OK 8EKIES. Consolidated Rules t( (« < < (* ft i< ti tt i< <( (< YKAR. 1888 << II 1S97 NO. OK MANITOBA. CITED KULE. RULES. AT I'AOE 888 2S7 841 888 653 881 I'JIO 280 15 ^0 138 282 140 411 141 233, 237, 240, 372, 411 162 196 242 164 242 176 412 m 215 226 100 217 219 , 229, 230 198 220 72, 214, 224, .344 185 222 223 206 235 216 'J09 238-239 227 1215 226, 227 217 245 215, 227 218 246 227 244 51 235 254 285 237 263 242 271 236 276 303 236 330 353 235, 248 332 357 231 334 360 248 348 372 242 353 377 258 364 428 242 378 257 208, ;:20 379 258 208,211 380 259 211 381 211 TABLE OF STATUTES AND RULES. ONTARIO RULES— C'on^^J^ aed. Ixxix NAMK OF SKRIES. Consolidated Rules «.» 7«8 m m I* tl 729 98 364 << «t 780 . 94 26i «l tt 781 95 m It (( 782 96 364 <( t( 788 97 36« <« " l-Kt »« " ir)4 «• " la.-) NO. OK MANITOHA CITKII VKAK. IU'I,K. Rri.KS. AT PAOK 1897 ii:ji2 iC.'H '.2!»1 «( 11S4 mo '-»•* '2'2iK :i7'J. 41 ' 411 411 411 i '! ADDENDA. l.„j,,. 44.-IiistL'iul ol" tin- luiiiiKniiili iH'piiiiiu;.' on necond line from bottom of imffe: "But iii-iivt from express ii^'reement ete." read as follows: "A movttrii},'<'f Ims ii lien for moneys jiaid to redeem the mort»jafj;ed lands sold for laxt-s: /(V/r.i/ v. Lvtiijnnl (188;J) 10 P. K. 182. But a mortfia^'ec who has been a party to a breach of trust in taking the mortpige has no lien for money pain of A security for the payment of money, o-enerally speak- . inu", is anytliintj tliat makes the money more assured in security. its payment or more readily recoverable than the mere riii'ht of action ao^ainst the debtor for its recovery. Thus a promissory note is a security : besides the mere t. . ^ ^ _ "^ I'ei'soiiiil riHit of action for the debt it confers on the creditor securitv. certain rights which make the debt more readily recover- able ; for it is not necessary to prove the considei-ation, and the promissory note itself is evidence of the debt. And wliere another person, b}' sit^ning or indorsing the note, becomes surety for the payment thereof, the creditor has a rio'ht (3f action al(>KT(iA(iE. Arising out of contract. Operation of law. Incidents of securities. Ditlcvcnt'c Ix'twcen iTiorttrage and other real rit'curities. of tlic debtor to ivalizc liis claim. Sufli a security is Ciilli'd a real .security or security in ri'ni. Thus a pledge or pawn is a real security whereby actual or constructive delivery of a pei-sonal chattel is made to the creditor, the property therein remainino- in the debtor ; a mortijaoe is a real security under which the property pa.sses to the niorto'agee. These forms of security, it will l)e observed, all arise out of and are constituted by the agreement of the parties thereto. Tliere are, however, certain forms (jf security which arise, not by agreement, but by operation of law. These are liens, such as a lien on land for unpaid purcha.se money, a lien on g(jods for the price of work and labour bestowed on them, or a statutory lien on property for labour or materials furnished. The es.sential character of all forms of security in rent is the same. Tlie creditor has a right to enforce the pay- ment of his debt against the property which constitutes the seciu'ity, or in certain cases to retain possession of tlie property initil paid and to be paid his debt out of the property in priority to other creditors of the owner. The debtor has a right to redeem the property and have and enjoy it again on payment of the debt on the day iixed for payment, and under certain circumstances after that day. The dirterence between a mortgage and other kinds of real securities lies in the (piality and extent of the interest that the creditor has in the })roperty of the delator, and in the modes by which his rights may be enforced. Thus, under a mortgage the creditor has an absohUe title to the pro])erty of the . This is a conveyance •""'"'^f^'iS*"' of an estate as .securitx', redeemable at anv time on i)avment of the principal without interest, the rents and profits of the estate until redemption lieing taken without account by the mortgagee in li<-u ot interest. THE ('OXTHACT (>F M()RT«JA(iE. Statutory detinitioii^ Mortgage. Mortgagor. Mortgagee. Property. Laiul. Conveyance. Mortgage. Mortgagor. Mortgagee. Inciiinlirauce Ineuni- lirar.cer. In Ontario tlic following- (Ictinitions have be( vided by the Act rcsjx'cluii/ flic Lmr mul Triii\ Propcrfij : — "Mortgage" shall ineliide every instrument by virtue land is in any luunner conveyed, assigned, pledged or eli security for the repayment of money or Tnoney's worth, an reeonveyed, re-assigned or released on satisfaction of the de "Mortgagor" shall include evei'y person by whom fi convey iv. If p, assignment, pledge or charge as aforesaid is mat "Mortgagee" shall include every ])erson to whom or : favour any such conveyance, assignment, pledge or cliarge i said is made or transferred {<•). • Tlie i'ollowino' definitions are to be found in 1 respect iiuj }f<)rt(/y or money's worth, and to be on satisfaction of the debt (a). revy person by whom any such charge as aforesaid is made {!>). ery person to whom or in whose iment, pledge or charge as afore- are to be found in tlie Act Eshifc :— personal property, and any debt, her right or interest {r of sale (,/■). \ mortgi.ge is a contract of secm-ity and a conveyance of property constituting tlie security. The contract is usually contained in the instrument of conveyance, but this is not essential. The conveyance may be absolute in form and the provi.so for redemption may be contained in a separate instrument, or it nuiy be merely verbal. The conveyance may be ab.solute in form and yet be a mortgage (/.;), and the absence of a proviso for redemption will not prevent its being a mortgage (/). It cannot be a mortgage on one side only ; the riglits of the parties must be reciprocal and nnitual. The ((uestion whether a transaction is an ab.solute sale of the propertN' or a mortgage depends on the intention of the parties. In determining the real intention the subse- (^uent conduct of the parties and the collateral circumstances may be considered, and parol evidence is admissible to show that an absolute conveyance was intended to be a mortgage only {rn). Thus a deed made to a party advancing money to carry out the purchase of the land is of the nature of a iiiortoaoe in). And so the pavment of interest, or the inatkMiuacy of the pm-chase price, will raise a presumption that the transaction was intended to be a mortgage {(>). (^n the other hand if there be no covenant for payment, or if the grantee take possession and continue therein as ostensible owner, that inference will l)e rebutted (/>). But to induce a court to declare a deed absohite on its face to have been intended as a mortgage only, the (j) Credit Fonder \. Andrew (IHiCf) i) Man. L.K. (m. (k) lUtrnhart v. (Ireensliields (IS,-)!}) i) Moo. P.C. IH. (/) Hell v. C(trtcr (185!)) 17 Beav. 11. (m) lUirton v. Hank of Sen- Sonlli lldhs (iSiK)/ 15 App. Cas. :579. (//) l{) Williams V. Uiren (1840) 5 My. & ("r. :iO;! ; Ahlvrson v. n7/(7<' (18r)8) 12 DeG. & •! . 97 : He,(ti,is„)i (1860) 8 Or. 417 ; CVn//r// v. Mrh^-tHtlil (IS(is) 14 Gr. ri4() : Jlhai/ v. Mmsh i ISSS) 1 N.W.T.li. .'),'); {{iiirh v. Millikci (IHliO) \'2 (ir. SM): Rnps,,,, v. Ilirsv' (ISGit) Ki (lv.\()8.'). vv .V. J)EKr.\ITI(»X, N'ATIUK AND INC'IDEXTS. 7 his estate was forfeited to the niortgajjee, who h(>caine absohxte owner thereof. Courts of law enforced tlie niort- oajro conti'act strictly, and refused to alter or modify its terms in favour of the niortifa<;or, liowever inecjuitahle the terms mi^ht be. The mortiraii'or's riijht to redeem after default was the Redemption ,. , (• •, T 1-. 1 1 if ..111 equity, creation of courts oi ecpnty. In LnoJand courts or ecjuity early he^au to moderate the severity with which the connnon law treated the breach of the condition. And while courts of ecjuity refused to alter the le<;al etlect of the forfeiture, they operated on tin; conscience of the mort- ''•a'''i'e, and actiiiij in />('?'.sf>7/'. ij; and not 7/» /v'J(» declared it to be unjust that the mortt>;aa<>'es alone were ('a;:;c debt or performance of the covenants, or where an action of ejectment should lu' l)roui;ht by a morti>ao-ee for i'ec('Very of the mortga(;cd [)remises. if the person havin*;' i-iuht to i-edeem should, penht to redt-em, it was neces,sary to lay ht to redeem. Tliat rule is expressed in the well-known maxim, " Unce a mortijat^e always a mortgao'e " (r). Every stipulation, moreover, which lias tl\e effect of fettering the right to redeem, such as resti'icting it to a limited period of time, or confining the right to a particular person or class, will be rejected (w). So the mortgagee will not be allowed at the time of the loan to enter into a contract with the ntortiiagor for the purchase of the lands at a fixed prici' in case of default in payment (.r). But an agreement made after the making of the mortgage, if entered into in good faith, for the pin'cha.se of the ecjuity of redeuiption by the mort- gagee is not within the rule, even although the purchase price is made up of the principal, interest and co.sts. A mortgagee will not be allowed to take advantage of the nece,s,sities of the mortgagor ,so as to o})tain a col- lateral or additional advantage beyond the payment of the mortgage moneys. As expre.ssed by the Ahister of the Kolls in Jcnnincjx v. ]Vrt(j.\(;k. SE(rri()N 1. Legal Mortgac^es. Mortjffif^fos imiy be either k-o-al or e((ni table. To effect a letj;al inortf^a^'e, tlie le). But a conveyance intended to operate as a transfer of the legal estate is reipiired to be under seal {<■). Vndav t\w Land TUlcx A(t.{(l), however, a registered owner may charge his land with the payment of money (a) R.S.O. (1897) o. 119, s. 1. (b) s. 4. (e) s. ;}. {(I) H.S.O. (1897) c. US, s. :V.]. See Form No. 28 to the Act. LE(i\L M(>irnJAer the land mort«;at{ed. These covenants are according to the tenor and effect of the several and respective forms of covenants set forth in Schedule B to the Ad renjwct Iikj ^hoii Foriiit* of Moii- (jtl(J('s(k). In a conveyance V»y way of mortgage of leasijhold LoiiselioUl property the following further covenant by the person who conveys and is expressed to convey as lieneficial owner is implied, namely : — "That the lease or grant creating the term or estate for which the land is held is, at the time of conveyance, a good, valid and effectual lease or grant of the land conveyed, and is in full force, unforfeited and unsurrendered, and in nowise become void or voidable, and that all the rents reserved ])y, antl all the covenants, condi- tions and agreements contained in the lease or grant, and on the part of the lessee or grantee, and the persons deriv- ing title under him to be paid, oljserved and performed, have been paid, observed and performed up to the time of conveyance. " And also that the person so conveying, or the persons deriving title under him, will at all times as long as any money remains on the security of the conveyance, pay, observe, and perform, or cause to be paid, observed and performed, all the rents reserved by, and all the covenants, conditions and agreements, contained in the lease or grant, and on the part of the lessee or grantee, and the persons deriving title under him, to be paid, observed and performed, and will keep the person to whom the conveyance is made, (*•) R.S.O. (1897) c. V2G. 14 THE roN'TR.VrT OF M<)RT. (/) K.S.O. (1«»7) c. I'Jl, K. 6. (i«) 57-58 Vict. (!).) (1894) c. 28, 8. 85. (h) mtlut V. lUaicn (1897) 5 B.C.R. 457. SECTION II. EtJU ITA HI.E M < »RT< i A( JES. An equitjible iiiort^age dot's not paHH tlie K'jjal estnte to the niortga^eo hut oporatt^s 1)y way of t*<|nitable transtVr. It may be effected by a niort^ajje in the ordinary form vvliere tlie Ui^al estate has ahva*!}' In^en conveyed by a prior mortj;aj;e ; or it may be created by an agreement to give a legal mortgage. i. MortfjOfjc of tlif Kqiiitji of Rcdonftt'um. At conunon law only one form of mortgage was recognized, namely, a mortgage conveying the legal estati'. When the owner had conveyed the legal estate to the mortgagee there was according to connnon law doctrine no finther estate to convey, and accordingly a second mortgage had at law no ett'ect whatever as a conveyance of the lands. Courts of e). So also a ."^ubseouent mortiraire, althouirh of no effect at law. morf opei i-tgag< itgagor (juity of redemption totter (jiiotli's and was called an iMjuitable mortgage because, while not recognized at law, it was ((>) Cdshonic V. Srarfr (17;J7) 1 Atk. ()()3 ; 18 K.C. :i(i of lands, tenements or hereditaments, or any interest in or concerning them, unless the agreement upon which such action shall be brought, or some memorandum or note thereof be in writing, and signed by the party to be charged therewith or some other person thereunto by him lawfully authorized." An inunediate c....rge on property has been hehi to be created by a power of attorney to receive rents and profits of land until repayment of a loan (s) ; by a deed appointing; a receiver of rents and profits to secure an annuity (t) ; by a letter that money intended to be invested at interest on a niortgajje of certain lands was in the hands of the writer who was interested in those lands (jt). And so a letter in the following form, "I agree to charge the east half of lot number 19 . . . with the payment of the two mortgages .... amounting to ^750 . . and I agree on demand to execute proper mortgages of said land to carry out this agreement or to (7) Tehh V. Hodqc (1869) L.R. 5 C.P. 73 ; Miittliews v. Carlwright (1742) 2 Atk. 347 ; Jinrn v. Hunt (1798) 3 Ves. 573. (r) 29 Car. II. c. 3. (») Spootier V. ,Sre(l, and the amount now due on it was .£1,214. It had not bevn paid owin*; to the applicant's notice. On the lOth of April, \H\)\\, the applicant took out a summons, askint; that the administrator rum fcsfo- nof'.nto (I in>t\i'ii mijjht Ik; ordered to pay her claim out of moneys comin*; to \\\t\ l)ands as such administrator. It was ari^ued in o|)position to the application that the memorandum did not create a specific lien of any sort or kind (/>) and that it was not only t(M) vaj;ue and indefinite to he enforced, but as it included every item of the mortijaj^ors property, preventinj( him jMiyinj; his debts, and deprivin*; him of the means of subsistence, it wa.s ajjainst public policy to enforce it (c). It was held that a person can specifically charge every item of his real and personal property, although no »()• WluM'c there is a written agreement for a deposit of deeds as seciu'ity it will be a «^ood charjje althoujyh no deeds have been actually deposited ; or even although sonie of the deeds have not been executed (/*)• A niortj^ajjee by deposit of title deeds may enforce the completion of the security by reijuirint; a legal conveyance from his ). An ecjuitable mortgaj^ee by deposit of title deeds with or without any memorandiun of charge or agi'eenient to execute a legal mortgage, or the holder of any other ecjuitable mortgage or charge may obtain, an order for sale ( /)). An e(|uitable mortgagee who commences an action for foreclosure may obtain an injunction restraining the owner from parting with the legal estate (/•). (/) Russell V. EitsseH (1783) 1 Brown Ch. Cas. 269; 18 K.C. 20 ; Jtimjess V. Moxon (185(5) 2 .lur. (N.S.) 1059. (/») Ex parte Hooper (1815) 1 Mer. 7 ; 19 Ves. 477 ; Ex parte Coombe (1819) 4 Madd. 249 ; 20 R.K. 294. (h) Ex parte the Slie^cM Union liankhig Co. re Carter (1865) 13 L.T. (N.S.) 477; Ex parte Orrett (1837) 3 M. & A. 153. (o) Ex parte iVright (1812) 19 Ves. 255 •, James y. James (1873) L.R. 10 Eq. 153. (/>) Tork Union liankinq Co. v. ArtUti (1879) 11 Ch. D. 205 ; Grissell V. Money (1869) 38 L.J. Ch. 312 ; Cripps v. fVood (1882) 51 L.J. Ch. 584 ; Kerr v. Jiebee (1800) 12 Gr. 204. (>•) London and Countij Hanking Co. v. Lewis (1882) 21 Ch. D. 490. CHAITER III. Special Kixns ok Mon'niAuK. Liability of niortRnpep ).y iiMHignment. SKCTION I. .AI(HtT(JA(JE OF Leaskhoij). A in<)rti;aj;e of IciiHchold may \n' oivated I'itlicr by Jlowcroatfd a.s.sijjiiment of tlie whole unexpired residiu; of the term or by sub-lease. If the mortjjage is by v ay enrer\s Vase, I Sm. L.C., 10th ed. at p. 70 ; IVoixlfnlV a Landlord «/<; (1797) 7 T.K. 30(i; Burton v.Barclai/ (1831) 7 Bing, 745 ; PlatVs Law of Covenants 488. (/>) Jamicson v. London and Canadian Loan and Agenci/ Co, (No. 2) (1899) 2C0nt. App, 116 at p. 132; affirmed by Supreme Court 24th Oct., 1899. (»') Jamieson v. London and Canadian Loan and Agency Co, (No. 2) (1899) 26 Ont. App. 116 at p. 124; affirmed by Supreme Court 24th Oct., 1899. Liability of mortgagee by way of sub -lease. i > m I 3 i I 28 THE COXTUArT OK MoliniAMK. Wlmt is an nHHiKiiiiifiit of lenHH. Recital. Preniisi<8. Habendum. ori^^iiial lessor. Hut wlicrr ii reversion is left in the iiiortL'Mv the ni()rti;ai;oi' of the covenants or eoiiditions in the leas*-. In .III iiiicsiHi V. Thf Loinlnii iiiiif f'd iniillii ii LiMfit iliiil Aijiiirji ('(i.{i/) the (Hiestion what eonstitutes an absolute assiminient of a lease as .laniiesou, of tlie said city of Toronto, mercliant, as lessor, and the sairor doth arrant and mortfjap' unto the said mortpifrees, their successors and assif^ns forever, all and singular the saitl indenture of lease and the beiu'lit of all covenants and agree- ments therein contained, ami all that certain jiarcel or tract of land and )»remises situate lyinp and bein^ in the city of Toronto, in the coiinty of York, l)ein<; composed of lots numl)ers five and si.x on the south side of (.^iieen street, according? to refristered i)lan 14, together with all ami singular the engines and lioilers which now are, or shall at any tinu» hereafter be brought upon and placed upon oraftixed to the said premises, all of whicli said engines and boilers are hereby declared to be and form )>art of said leasehold j)remises herelty granted and mortgaged or intended so to be, and be and form part of the term hereby granted and mortgaged. To have and to hold unto the said mortgagees, their successors and assigns for the residue yet to come and unexpired of the term of years created by the said lease, less one day thereof, and all renewals and substituted estates and rights of renewal and other interest of him, the said mortgagor, or wliich he may liereafter acquire therein. Together with all the outhouses, outViuildings, easements and appurten- ances thereto lielonging or now in anywise used or enjoyed in connec- tion with the said premises by the said mortgagor. (it) (18!)7) '27 S.C.K. 43;'), reversing the judgment of the Court of Appeal, S.i Out. Ajip. (JOL'. MOKTdAUE OF LKASEHOLI). 23 Till' Sui>r»'ir,t' Court i-cvorsin;; tlu' juaHed upon two jjnanuls: — ( 1 ) The ])rennses of the niort«;a<;e deed upon a proper interpretation eontained an express assitriniicnt of the whole term, and if the /nihcinhi iii itserved a reversion of one H)J{Te said that an hubvtiKT(iA(iK OF LKASEIKHJ). •li) I'.iortjjageoH of a l»'aH^^ wcro entitled to ^et rid oi' liability on the lea-se by executiiij; a statutory discliartje ot" the iiiort^a^e, to which at the time of its <'X(!Cutioii tlve lessor had consented. It was contended that this was in fact asHi;»S ; ,I<,),VK V, luanini (1842) 1 D. & War. UU \ I.ei(/li v. I{itr)irtt (\HH:)) 2i» Ch. D. L':}! \' HiigUis v. Iloinu-il (18iJ8) 'J.') Beav. 075 ; Smith v. Vhirhr.stiT (184'J) 1 Conn. & Law. 48(). (k) liniUlhiq uuil Loan Afisorintiou y. McKcn::ic (1897) 28 Ont. .'51 (i ; afHrmed 24 Oiit. App. 5!)9; 'J8 S.C.H. 407. (/) lliishirorth's Ciisr (1()7(5) Freem. Ch. 13 ; Liirkhi v. Rushworlh (1()78) Hep. t. Finch. 3!)'.' ; S.C. 2 Ch. Hep. li;j ; IhurcU v. WhitrhnI (lG()!t) 2 Ch. Uej). 5!t. (;,v) Uakvstmn- v. Ihrirrr (1728) 2 P. Wms. 51(». (h) Xeshitt V. rrKU'iniifk (1808) 1 Ball & B. 29. MOKTUAUE OF LEASEHOLD. 27 Umber, even althougli he may hr ,e obtained the consent of the revei-Hioner (o). It is doubtful whether tlie Act respectlnu Short Fonn^ tF^l^"'' of Mort<,acr.s{p) can be safely employed in drawnig a of^Shor^^^ mortgage of lease. For the act expressly provides that whei^ the word " lands " occurs in the act it shall extend to " freehold lands and liereditaments " {q), and this expres.sion does not include chattels real. It has been held that leaseholds will not pass under a general devise of real estate, unless aided by other words (/•). (o) amhnlm v.Shclihn (ISoO) I Gr.'ilS. (p) R.S.O. (1897) e. 12(5. t!-)%rift V. Su-ift (1859) 1 DeG. F. & J. 100. See Leith's Real Property Statutes 419. - I 3 i If V SECTION II. HriLinNMi Society MoimiAOEs. Hiiildinjj scx-iety niorttja^es iiui}' be divided into two classes : — (/') Where tlie ])<)rro\ver is not a member of the society. (It) VVliere tlie borrower is a member. Of the first chiss tliere is little to be said, as the contract between the borrower and the society is practically the same as that of the ordinary mortiraijor and mortifajfee. The money is usually advanced in a lump sum and is made repayable in a stated nmuber of instalments. When all the instalments have been paid the mortgagor is entitled to a discharge of his mort<;ao[e. It should be observed, Provisions as however, that as the payments of principal and interest are to interest. , i , i , i • i i blended the mort«jfa«(e must comply with the provisions ot TItcDoiii ill l(}ii I life rest Ad (a ) and state the amount of prin- cipal advanced as well as the rate of interest which is beinjj charj^ed, which rate must be calculated yearly or half- yv-nrly not in advance. In computinj^ the rate of interest it is not necessary to include any premiums which the borrower may be recjuired to pay in consideration of the loan ; for it ha ". been held that these payments are in the nature of a bonus and not interest (h). The relation l)etween the borrower and the society is considerably moditied in the second class of cases. The applicant for the loan in this instance is first obliged to become a member of the s(x;ietv. A number of shares, the nurturity vahu' of which will ecpial the amount to be advanced, are allotted to the applicant. The money is then advanced and the applicant is recjuired to assign his shares to the society. These are of course of no value Mortgagor a member of the society. (<() R.S.C. (IHH(i) c. 127. (//) Ed- parte Bath, rt Pliillips (1883) 27 Ch. D, 501). , BUILDING .SOCIETY MORTOAGES. 2!) bcctuiHc as yet nothing; has been paid in respect of them ; he is therefore reipiired to execute a niort*;a<;e by way of further security. This is to jjuarantee that the borro\v*'r will make all the payments which may be necessary to mature the .shares which he has assiHT(JA«iE. tliat an mlvaiici-d iih'iiiIxt should not be entitled to redeeni his nioitj,'aije without payinjj in a a I 3 i K w (d) R.S.O. (1897) c. 129. 34 THE f'ON'THACT «)F M()HTOA«JE. Executor. 18. If 11 tfHtatorwho oreiitfH Biich a chnrse an is dosoribed in section 16 does not devise the real estate cliarged as aforesaid in such terms as that liis wlioie estate and interest therein become vested in any trustee or trustees, the executor or executors for the time beinp named in tlie will (if any) shall have the same or the like power of raisinp the said moneys as is hereinbefore conferred upon the devisee or devisees in trust of the said real estate ; and sucli powers shall from time to time devolve to and become vested in the person or persons (if any) in whom the executorship is for the time beinj? vested ; but any sale or mort^ratfe under tliis Act shall operate only on the estate and interest of the testator. 19. Purchasers or mortw-inoes shall not bo bound to inquire whether the jiowers conferred by the preceding tliree sections of this Act, or any of them, have been duly and correctly exercised by tlie person or persons acting in virtiie thereof. 20. The provisions contained in the preceding; four sections shall not in any way prejudice or affect any sale or mortgage already made or hereafter to be made under or in pursuance of any will cominy into operation before the IKth day of September, 1HG5; but the validity of any such sale or mortfrape shall be ascertained and determined in all respects as if the said sections liad not been enacted; and the said several sections shall not extend to a devise to any person or persons in fee or in tail, or for the testator's whole estate and interest char^red with debts or lepicies, nor shall they affect the |)Ower of any such devisee or devisees to sell or mortgage as he or they may bv law now do. Wliere a te.statrix, after a direction to pay her debts, devised land to lier executor and trustee and liis execu- tors and administrators, upon trust to retain for hi.s own use for life, and directed that after his decease his executors or administrators shoidd sell the land and divide the proceeds amonjj; her children, it was held that this was a devise of the land out and out as to the lej^al estate, and tlie words " his executors and administrators " bein^ e(|uivalent to "heirs and a.ssigns " the executor had the ritjht by virtue of section 10 of the Trustee Af/'(1898) 29 Out. 680; In re Baileii, Jiailey v. HaiUii (1879) 12 Ch. D. 268; In re Tanqneray-niUaHme awl Landau (1S82) 20 Ch. D. 476. {(j) R.S.O. (1897) c. 127. WHM MAY HE M0KT(J.\(inlt AND M(tKTUA(iEE. M5 DeviHPeof Iniul niiiy niortKttKf . and acts nrcU , tho will ami the pi'ovisions of the Trtistii' Art (A). The devisee of real estate under the will of a testator subject to the Dei'oliUiait of h'stntt's Act and aniendnients has a transmissible interest in the lands durinj; the twelve months after the death of the testator, pendin*; which time they are vested by the act in the legal personal repre- sentatives. And where real estate devised by a will so subject to the Di'roliitloii of Entatm Act, of which letters of administration with the will annexed had been <;i'anted •luring the twelve months succeeding the testator's death, but as to which no caution had ever been registered, was durino- such period mortt;asolute title to and in any such mortgaged real or immovable property , whatever the value thereof is, or from exercising or acting upon any power of sale contained in any mortgage given to it or held by it, authorizing or enabling it to sell or convey away any property so mortgaged. A inoitgaj^e upon land given to secure indorsements upon negotiable paper to be made by the mortgagee for ' the benefit ot" the mortgagor becomes operative only upon the indor.sements being njade ; and an assignment of such mortgage to a bank, before the making of the indorsements, is not a violation of secti('n 45 of the Bank Act, R.S.C. (188()) chapter 120 (k). If a mortgage upor lands bo given to a bank as security for future advanee.s in contravention of the banking acts, and ei'-cer the debt has been contracted or advances made another mortgage be executed vipon the same property as (A-) Ke Esuei: Land .V' Timber Co., Trout's Case (1891) 21 Ont. 367. WHO MAY HE M<>KT(J.\(!<)R AND M»)KT(iA). In Manitoba it lias been held that a moitgage made by an Indian living on a reserve of land in the reserve is void (q). {I) Grant V . La Banque Nationale (1885) 9 Ont. 411. (w») Farrell v. Carribnu Gold Mining Co. (1897) 30 N.S.R. 1^9. (n) Corporation of the ViUage of Brussels v. RonaUt (1882) 4 Ont. 1. (o) R.S.O. (1897) c. 163. {p) Moore v. Jackson (1892) 19 Ont. App. 383. (g) Black v, Kennedy (1877) Man. R. 144. •loint Htock conumny. Municipnl corporation. i'npncity to mortgage. (Coverture. Mortgage by an Indian. PART II. RIGHTS AND LIABILITIES OF THE MORTGAGEE. CHAPTER V. Twofold interest of a mortgafjee : real estate ; personal estate. Legal and equitable principles. Uiglit to hold his security: right to be paid. Remedies of the mortgagee. Ki(;nTs (IF M(»KT<;A(iEE Gexerallv. Tlie intere.st of a luorttjao'ee undtjr a mortijaffe of the local estate in land is twofold : a lejjal interest which is real estate, and a beneficial interest which is personal estate. By virtue of his havino- the legal estate the ni()rt54; \M<'DoHqall v. McHnugall (1868) 14 Gr. 267; Catton v. Banks [1893] 2 Ch. 221. {w) R.S.O. (1897) c. 119. 44 RHiHTS AXn LIAHILITIES OF THE MORTGAGEE. Mortgajjee IS ail assign. '■ / if' Mortgagee not liable for damage (lone by mortgagor. Mortgagee entitled as against mortgagor to a lien for moneys paid to assignee. Mortgagee lias no lien for taxes paid by him. Where a purchasei- of land made lasting iniprovemonts thereon under the belief that lie had acquired the fee and then made a mortgage in favour of a person who took in good faith under the same mistake as to title, and it was subsequently found that the purchaser had accjuired only the title of a life tenant, it was held that the mortgagee was an •' assign " of the person making the improvements within the meaning of this section and had a lien to the extent of his mortgage which he was entitled to enforce actively. The value of the improvements should be ascer- tained as at the date of the death of the tenant for life, and there should be as against the mortgagee a set-otf of rents and profits or a charge of occupation rent only from that date till the date of the mortgage. Interest should be allowed on the enhanced value from the date of the death of the tenant for life (.r). A mortgagee is not liable for damage done by the inoftgagor on the mortgaged property. Thus a mortgagee of land through which a stream flowed was held not liable for an injury caused by a mill-dam erected by the mort- g.agor in possession, although the money for which the mortgage was given was lent bv the mortgagee for the purpose of building the dam (y). Where a mortgagee assigned the mortgage covenanting for payment of the uiortgage money, and subject to an agreement between the mortgagee and the assignee that the former might have a re-assignment of the mortgage on payment of principal and interest due thereon, and the mortgagee afterwards made payments under his covenant, it was held that he was entitled to a lien therefor as against the mortgagor (2). But apart from express agreement a mortgagee has no lien for money paid by him for taxes on the mortgaged (.1) McKibhoH V. WUliams (1897) 24 Ont. App. 122. (//) McNaufihton v. Fraser (1855) 3 All. (New Bruns.) 247. (c) Fli'miiuj V. Palmer (1866) 12 Gr. 226. RIGHTS OF MORTGAGEE GENERALLY. 45 lands or for money paid to redeem from a sale for taxes (a). A mortgagee paying oft' a prior execution has a lien therefor as against subsequent execution creditors (/>). A ?nortgagee may become the purchaser of the ecjuity of redemption at a sale under execution, but only on condition that he gives to the mortgagor a release of the mortgage debt. This is provided by section 32 of the E'Xt'cuiioti Act {c), wliich is as follows : 32. A mortgagee of lands and tenements so sold, or the heirs or assigns of the mortgagee (being or not being plaintiff or defendant in the judgment whereon the writ of execution under which the sale takes place has issued) may be the purchaser at the sale, and shall acquire the same estate, interest and rights thereby as any other purchaser ; but in the event of the mortgagee becoming the purchaser, he shall give to the mortgagor a release of the mortgage debt ; and if another person becomes the purchaser, and if the mortgagee enforces payment of the mortgage debt against the mortgagor, then the purchaser shall repay the debt and interest to the mortgagor, and in default of payment thereof within one month after demand, the mort- gagor may recover the debt and interest from the purchaser, and shall have a charge therefor upon the mortgaged lands (rf) . Section 28 of the Act respecting the Heir, Devisee and Assignee Commission (dd) declares that any mortgage, incumbrance or lien created bj' the nominee of the Crown on lands for which the patent has not been issued may be registered and shall have the same force and eft'ect, and no other, as if letters patent had before the execution of such instrument been issued in favour of the grantor. Under this provision the mortgagor and mortgagee have all the rights and liabilities as between themselves that they would have if the freehold were actually vested in the mortgagor (e). A mortgagee, by virtue of his beneficial interest under the mortgage, is entitled to all accretions to or substitu- Lien for executions paid off. Mortgagee purchasing equity of redemption. Must release mortgagor from the mortgage debt. Unpatented lauds : rights of mortgagor and mortgagee. Mortgagee entitled to accretions; (rt) Graham V . British Canadian Loan and Investment Co. (1898) 12 Man. R. 244; In re Leslie, Leslie v. French (1883) 23 Ch. D. 552; Falckc V. Scottish Imperial Insurance Co. (1886) 34 Ch. D. 234. (b) Trust and Loan Company v. Cuthbert (1868) 14 Gr. 410. (c) B.S.O. (1897) c. 77. (d) A similar provision is in force in Nova Scotia: R.S.N.S. (1884) e. 184, s. 5. {dd) R.S.O. (1897) c. 31. (f) Watson V.Lindsay (1879; 27 Or. 253; 6 Ont. App. 609. 46 and to nmniments of title. V Fraudulent ooncealment of title deeds. Action for damages. RUJHTS AND LIAHILITIES OF THE MOHT0A«JEE. lions for tlie mortgaged propoi-ty, whethei his security is Ic^'al or c'(|uitrtble (/). A k'tjal inoi-t^atjoi' of real estate, wliether of the fee or of a life estate therein, is entitled to the nmninients of title to the estate ; and a leijal mortjjajjee of leaseliolds is entitled to the lease and all documents relating only to the term (;/). Section 27 of tlie xict respect I in j Morffjdijes of Real h's(<(fi' (//)|provides as follows : — 27. At any time after the power of sale hereby conferred shall have become exercisable, the person entitled to exercise the same shall be entitled to demand and recover, from the person entitled to the pro- IK-rty subject to the charge, all the deeds and documents in his jiosscssion or jiower relating to the same property, or to the title thereto, which he woula have been entitled to demand and recover if the same ])roperty had been conveyed, appointed, surrendered, or assigned to and was then vested in him for all tlie estate and interest which the jievson creating the charge had power to dispose of; and where the legal estate is outstanding in a trustee, the person entitled to a charge created by a person equitably entitled, or any purchaser from sueii person, shall be entitled to call for a conveyance of the legal estate to the same extent as the person creating the charge could have called for such a conveyance if the charge had not been made. Section 81) of the Act respectinij the Ltnv and l^ravsfer of Property (i) provides : — 39. If any seller or mortgagor of land, or of any chattels real or ]iersonal, or choses in action conveyed or assigned to a purchaser or mortgagee, or the solicitor or agent of any such seller or mortgagor, conceals any settlement, deed, will or other instrument material to the title, or any incumbrance, from the purchaser or mortgagee, or falsifies any pedigree upon which the title depends or may depend, in order to induce him to accept the title offered or produced to him, with intent in any of such cases to defraud, such seller, mortgagor, solicitor or agent shall, irrespective of any criminal liability he may thereby incur, be liable to an action for damages at the suit of the purchaser or mortgagee, or those claiming under the purchaser or mortgagee, for any loss sustained by them, or either or any of them, in consequence of the settlement, deed, will or other instrument or incumbrance so concealed, or of any claim made by any person under sucli pedigree, but whose right was concealed by the falsifica- tion of such pedigree; and in estimating such damages where the estate is recovered from such purchaser or mortgagee, or from those claiming under the purchaser or mortgagee, regard shall be had to any expenditure by them, or either or any of them, in improvements on the land. (/) Ex parte Bisdce, in le Baker [ISiO) IM.D. &DeG.333; 18R.C.137. ((/) Smith V. Chichester (1842) 2 Dr. & War., 393; 18 R.C. 128. (/() R.S.O. (1897) c. 121. (i) R.S.O. (1897) c. 119. CHAPTER VI. Distress. SECTION I. Form and Effect of Proviso. Tlie right of the mortgagee to diHtrani on the lands of the mortgagor for arrears of interest or of principal does not arise from the relation of mortgagor and mortgagee and is not incident thereto. The right can only arise by express stipulation between the parties (a). There are two modes by which this right is usually given to the mortgagee. First, a simple stipulation in the mortgage deed that the mortgagee may distrain; and secondly, a stipulation whereby .the relation of landlord and tenant is created between the parties. In tlie latter case the right to distrain arises by implication as incident to the relation of landlord and tenant. No set form of words is necessary to give tlie mortgagee the right to distrain. The mortgage deed may provide that the mortgagee may distrain for all the mortgage moneys, principal as well as interest, and this without regard to the value of the land and whether the goods are on the mortgaged premises or elsewhere. As between the parties there is no doubt that such a stipulation is perfectly valid (aa).^ In Ontario the usual form of stipulation is the statutory (a) For a full and instructive discussion of tlie rights of a mortga- gee in regard to distress see articles by Mr. A. H. Marsh, Q.C. in 6 C.L.T. p. 217, 265 and 313. {na) Hohbs v. The Ontario Loan and Debenture Company (1890) 18 S.C.K. 483, per Patterson J. at p. 552. Right created by contract. License and attornment. Right to distrain for interest or principal may be given. Good as between the parties. Statutory distress clause. 48 RKiHTS AND LIAIULITIES OF THE MORTGAGEE. Does not create relation of landlord and tenant. Interest accniing after maturity of principal cannot be distrained for unless special provision. dintn^Hs clau.se contained in tlie Act respecting Short Forms of Mdi'fgiigeH (I)) : — l.T. Provided that the mortgagee may distrain for arrears of in- terest. If the niortt^aijt; deed is expre.s,sed to be made in pursuance of the act this form of words .shall be taken to have the same effect and be con.strued as if the mortgage deed contained the following form : — 1;'). And it is further covenanted, declared and agreed by and between the parties to these i)resent8, that if the said mortgagor, his heirs, executors or administrators shall make default in payment of any i»art of the said interest at any of the days or times hereinbefore limited for the payment thereof, it shall and may be lawful for the said mortgagee, his heirs, executors, administrators or assigns, to distrain therefor ui)on the said lands, tenements, hereditaments and premises, or any part thereof, and, by distress warrant, to recover by way of rent reserved, as in the case of a demise, of the said lands, tenements, hereditaments and premises, so much of such intereat as shall, from time to time, be or remain in arrear and unpaid, together with all costs, charges and expenses attending such levy or distress, us in all cases of distress for rent [c) . This clause does not create the relation of landlord and ttMiant between the mortgagor and mortgagee, but operates simply as a personal license from the mortgagor to the mortgagee that it shall be lawful for the latter to distrain uj)on the goods of the former ((/). It would seem from the provision.s of the statutory clause that the mortgagee may exercise hi.s right to distrain at any time whether before or after tlie maturity of the mortgage debt or of any instalment thereof. But only arrears of interest which shall have accrued before the maturity of the mortgage debt can be distrained for in cases where there is no provision in the mortgage for pay- ment of interest after niaturity. In such cases the interest payable after maturity of the principal would be recover- able, not by the terms of the contract, but as damages, and the right to distrain under the statutory power is given {h) R.S.O. (1897) c. 12(5, Schedule B., clause 15. (c) Schedule B, clause 15. (d) Trust ami Loan Co. v. Laicrason (1882) 10 S.C.R, 079. FORM AND EFFECT OF PROVISO FOR DISTRESS. 49 only whero the niortjjagor makes (i'ifault in payment at the time limited therefor (c). A mortgaj^ee having; made a first seizure for arrears of interest and abandoned the seizure cannot seize a second time for the same demand. A seizure for more than is due is illegal (/'). ii. Attornment Clause. It has been held that a stipulation in the form of the statutory distress clause (^) coupled with the provision that the mortgagor should continue in possession until default, and his occupation in pursuance thereof, created the relation of landlord and tenant at a fixed rent(/i). That decision was reversed by the Ontario Court of Appeal, but it is uncertain upon what grounds as the written judgment was lost (i). It has since been held by the Supreme Court of Canada that such a distress clause does not create the relation of landlord and tenant (j). In the case just cited the mortgage in question contained in addition to the statutory distress clause the following provision : — " And the mortgagor doth release to the company all his claiu\s upon the said lands and doth attorn to and become a tenant at will to the company subject to the said proviso." And it was held affirming the judgment of the Court of Appeal (k), the Supreme Court being ecjually divided, that the relation of landlord and tenant was not created by the statutory distress clause. And it was further held that the attorrnnent clause in the mortgage in (piestion failed to create a tenancy on the ground that ((') Klinck v.The Ontario Industrial Loan and Investment Co. (1888) 16 Ont. 562 ; Poioell v. Peck (1888) 15 Ont. App. 138. (/) La Vassairev. Heron (1880) 45 U.C.R. 7. (g) R.S.O. (1897) c. 126 Schedule B. clause 15. (/() Royal Canadian Bank v. Kelly (1869) 19 U.C.C.P. 196. (0 Mr. Leith, Q.C , one of the counsel engaged in the case gave a report of the judgment from memory. This is to be found in 14 C.L.J. 8. (j) Trust and Loan Co. v. Lawrason (1882) 10 S.C.R. 679. (k) 6 Ont. App. 286. Second seizure illegal. Former decision as to statutory distress clause. Statutory distress clause does not create relation of landlord and tenant. i I 3 i w oO HKiHTS AND MAIilMTIKS OK TIIK MO!lT«iA(iEE. iicliitioiiHliip (if liiiiillonl and tciiiiiit limy III- cri'iitcd lit'twccn iiiortKtij-'oi' llD.'t mortgagt't'. The stipula- tion must conforin to tlie liiw of laiullovd and tenant and it must be a real tenancy. tht'ic WHS IK) ifsrr\iiti()ii ol" ront sutHciciit to i-iititlc tlio iiiorti^a^iccs t<» clniui tin- lundlord'.s right its against aii I'xt'outioii c'rc,'t' deed a clause making the mortgagor attorn as tenant to the mortgagee and thus )iy contract constituting the relation of landlord and tenant lietweeii tliem." Tlu'siger, LJ. in the same case said : — "There can he no douht that such clauses contained in mortgage deeds are valid and operative in themselves and that th< y may and ordinarily do <'reate tlie relationshiji of tenant and lamllord between the mortgagor and mortgagee and with it the ordinary right of distress which tlie law attaches to that relationship" (m). It is essential to the validity of snch an ari'angement that it should ])e so carried out as to comply with the re(|nirements of the law prescribed for the creation of leases, and it should appear that it was really the inten- tion of the })arties to create a tenancy at the rent reserved, and not merely to give the mortgagee tinder colour or pretence of the lease an additional security incidental to lii.s character of mortgagee. If these ccinditions are com- plied with the relation of lessor and lessee is considered to be estal)lished not only as between the parties themselves but in respect of third persons also. In such a case the mortgagee, if not restricted by .statute, may distrain for rent in arrear upon the goods of the mortgagor, and also upon the goods of a stranger found upon the mortgaged or demi.sed lands, and may insist as against tlui sheriff' and (0 (1880) 14 Ch. D. 726. (m) 14 Ch. D. at p. 743. See also Eearsleii v. riiiUi)s (188:!) 11 Q.B.D. 621 at p. 624. FOHM AMI) KKFKCT (»K PHoVlSU KoH OlsTttEMS. ftl tlio I'Xi'cution creditors ol' tlif moit^^aj^or updii tlu' rii^hts conft'iTcil on luiirllordH l)y tlu' Stiitutf S Aiiiic clmptci' 1 4( h ). The attornnu'iit cliiusc \h irruvmWy in tlif t'ollowiiii; form : — • "The tnortfjfifjor herclty iittoniH to tlip mortdiifjeo inid bopoiiics a tt'iiiiiit of tilt' Miiid liiiuls «lui'iii>i tlu" tprin of tliiH inoi'tK»K»' nt ii ri-nt t'(|iiiviilt'iit to iiiiil pnyiililo at tlic simic ilayM and tiiiien iis tlu- payiiiniitM of iiitoi't'st are lu'i'idnliefon' a^i'^t'd to hv paid, Much rent when so paid to 1)6 in Hutisfaction of Hueli paynicntM of intfrewt. Provided tlnit tlie inoit)ia>;ee may in default of iiaynieiit or on lireaeh of any of the covenants hereinbefore eoutained enter on tlie said lands and deter- mine the teinmey herel)y ci'eated without notiee. i'rovided that lU'ither the existence of this clause nor anythin>; done by virtue thereof shall render the niort^af^ee liable as niorff^aKee in possession so as to Ijo accountable for moneys excejit those actually received." Whore a mort*^aoe detnl contained the foHowino; attorn- ment clause : — " And the said mort<;a) (1890) 18 S.C.R. 483, at p. 495. [q) See also Ex parte Voiscy, in re Knight (1882) 21 Ch. D. 442. (>•) Hohhs V. The Ontario Loan and Debenture Company (1890) 18 S.C.R. 483; Morton v. tf'oods (1869) L.R. 4 Q.B. 293. (s) 29 Car. II. c. 3. Form of attornment clause. Mortfjfnj^or estopj)ed. The mort- ^i\iiv deed need not be executed by the mortgagee. m RIGHTS AXD LIAKILITIES OF THE MORTGAGEE. Rent need not be pnitl Nor the mortfjagor let into posMessiiou. Reversion need not be in the mortgagee. Several mortgagees may be landlords to one mortgagor. applies to tenancie.s which exceed three years. A tenancy which at the time of the contract may last for less than three years is not within the statute. The attornment to the mortgagee by deed executed by Llu' mortgagor in possession and delivered to the mortgagee is sufficient evidence of the creation of the tenancy between the parties. It is not necessary in order to constitute a tenancy that rent should be paid (t). Nor is it nece,s,sary to the creation of a valid tenancy that the mortgagor should be let into pqssession. It is sufficient if there is a continued occupation by the mortgagor instead of a change of possession and a letting into possession again {ti). In order to enable the mortgagee to distrain under such a clause the legal reversion of the lands need not be in the mortgagee. In Mortoi) v. Woods (v) Cockburn, C. J. said : — " Although it may appear on the face of the deed that the defen- dants, the lessors, have not the legal estate yet the tenant and those who claim through him are estopped, after he has attorned, from denying that the relation of landlord and tenant existed between the defendants and the mortgagor so as to pass as between them the reversion of the lessor." There may l)e two or more attornments by the same mortgagor to difierent mortgagees ; and the mortgagees will be entitled to distrain for the purposes of their resjiective mortgages and during the same period of time (tc). In Ex parte Punvett(x) Jessel, M.R., said : — "If by a contract, notwithstanding the fact is known that the legal estate is outstanding in a mortgagee and that the mortgagor is not really the owner of the reversion, you can create a tenancy between the second mortgagee and the mortgagor by what may be called estoppel, or quasi-estoppel (it does not matter what term we use), it appears to me that there is nothing either in law or in good sense to prevent the same arrangement being made with more than one mortgagee." (0 West v. Fritche (184H) 3Exch. 216; Morton x. Woods (1868) L.R. 3 Q.B. 658; 4 Q.B. 29;i; Ex parte Foisey, in re Kniyht (1882) 21 Ch. D, 442. (m) Morton v. Woods (18C8) L.R. 3 Q.B. 658 ; West v. Fritche (1848) 3 Exch. 216. [v) (1868) L.R. 3 Q.B. 658 at p. 667. (w) Ex parte Punnett (1880) 16 Ch. D. 226. ix) (1880) 16 Ch. D. 226. FORM AND EFFECT OF PROVISO FOR DISTRESS. 63 A rent that is certain is essential to the creation of a valid tenancy. The rent must be fixed and certain but it may fluctuate. It is sufficient if by calculation it may be rendered certain. Id certum est quod certuni reddi potest. Thus where the rent reserved was a monthly instalment of a fixed amount together with a fine of five per cent, per month on the whole amount unpaid, the rent was held to be sufficiently ascertained (y). But where a mortgage contained a special provision by which the mortgagors became lessees of the mortgaged lands until the maturity of the mortgage at a rental of the same amount as the interest, and the mortgagee distrained for arrears of interest which accrued after the maturity of the mortgage, it was held that there was no definite tenancy after the maturity of the mortgage and that, the interest thereafter being recoverable not by the terms of the contract but as damages, the rent became uncertain and therefore there was no right of distress (z). It is also laid down that there must be an affirmative covenant that the mortgagor shall hold for a determinate time in order to make a valid re-demise (a). Where a mortgage deed contains a stipulation that the mortgagor shall become tenant to the mortgagee upon making default in any of the payments the mortgagee has no right to distrain unless he shall have given notice previously to the mortgagor that he intends to treat him as a tenant (b). A tenancy from year to year or from month to month will be a good yearly or monthly tenancy notwithstanding that the mortgage contains a proviso that it may be Rent must be certain. Determinate time. Tenancy on default. Tenancy frum year to year and tenancy at will. (y) Ex parte Voisei) (1882) 21 Ch. D. 442; Trust and Loan Compaui) V. Lawrason (1882) 10 S.C.R. G79. {e) Klinck v. The Ontario Industrial Loan and Investment Companii (1888) 16 Ont. 562. (a) Trust and Loan Company v. Lawrason (1885) 10 S.C.R. 679 at p. 706. (6) Clowes V. Hughes (1870) L.K. 5 Ex. 160. 54 RIGHTS AND LIABILITIES OF THE MORTGAGEE. Kif^lit to (lis- tniiii i)0s1 - polled by proc'cpdiiifis for sale. Right to distrain not mtM'fj;t'd in judfjjnient for mortjj:)ifft' moneys. Devisees niavdistniin. Tenancy at will ■ determined by death of niorttcagor. determined at any time by the will of the mortgagee (c). There may be a tenancy at will although the rent reserved be payable yearly {(I). A tenant at will is not at liberty to put an end to his tenancy by parting with his interest unless the les.sor at will have notice thereof (e). If the morti^ao'ee has given notice of his intention to exercise the power of sale contained in the mortgage, his right to distrain will be postponed luitil the time has expired after whicli according to the notice the power of sale is to be exercised (/). If the mortgagee obtains a judgment for the interest, or for the principal and interest, the remedy of distress is not thereby merged. A judgment is but a security for the debt until it be satisfied, and dov's not operate to change any other concurrent remedy which the mortgagee may have(^). The a.ssignee of a mortgage cannot distrain for arrears of rent which have accrued before t'le as,signment (h). The power to distrain under a tei:ancy from year to year or for a term of years may be exercised })y the devisees of the mortgagee ( i). Where the tenancy is a tcinancy at will it comes to an end with the death of the mortgagor, and the mortgagee cannot distrain upon the heirs(j); the executors of the lessor may distrain for arrears of rent upon lands demised for any tciiu or at will at any time within six month.s after the determination of the tenancy and while the (c) III re Thrclfall (1880) IG Ch. D. 274; Ex parte roiscy (1882) 21 Ch. D. 442; see also lump v. Lesley [1896] 2Q.B. 1C2. ((> V. CoWhs [1895] 1 Q.B. 375. FORM AND EFFECT OF PROVISO FOR DISTRESS. 55 tenant is in possession. Tliis is provided by sections 13 and 14 of the Trmtee Act, R.S.O. (1897) chapter 129 whicli are as follows : — 13. The executors or administrators of any lessor or landlord may distrain upon the lands demised for any term or at will, for the arrears of rent due to such lessor or landlord in his lifetime, in like manner as such lessor or landlord might have done if living 14. Such arrears may be distrained for at any time within six months after the determination of the term or lease, and during the continu- ance of the possession of the tenant from whom the arrears became due; and the powers and provisions contained in the several statutes relating to distresses for rent shall be applicable to the distresses so made as aforesaid. The creation of tlie relation of landlord and tenant in tliis way by expre.ss stipulation does not alter the eijuitable relation existino' between them which arises out of the relation of niortyaijor and inorto;ao'ee. The existence of O C^ OCT the tenancy may interfere with the mortjjao'ee's right to take possession unless he has the power to determine the tenancy at any time {k) ; and a clause giving the mortgagee this right is valid (/). When a tenancy has been created the mortgagee as landlord will be entitled to exercise the rights and will be subject to the liabilities arising out of the relation of landlord and tenant. The effect of an attornment clause is to render a mortgagee liable as mortgagee in possession to account to subset luentiucuml^rancers for rent which but for his wilful default he might have received {m). A stipulation is usually inserted that the mortgagee shall not be liable as mortgagee in possession for any moneys except those actually' received. An attornment clause rloes not come within the Ontario Bills of Sale Act and does not recjuire to be registered in (A) In re Slocktim Iron Furnace Co. (1879) 10 Ch. D. 3;J5. (/) Ihw ,L (larrod v. Ollcn (1840) 12 A. & E. 481; Mctropnlitan Voiinlici iV'c. Assurance Societjf v. Brown (1859) 4 H. & N. 428. (m) In re !itocklon Iron Furnace Co. (1879) 10 Ch. D. 335: Ex parte Puniirti (1880) 16 Ch. 1). L"2(); A'.*; parte Harrison (1881) 18 Ch. I). 127 at p. 135. But Bacon V.-C. in Stanley v. Grundy (1883) 22 Ch. D. 478 decided otherwise. Tenancy does not alter the relation of mortgagor and mortgagee as such. Rights and liabilities of mortgagee as landlord. Effect of attornment clause — mortgagee in possession. Attornment clause not within the Bills of Sale Act in Ontario. V k Si ) m I : i t 56 RIGHTS AND LIABILITIES OF THE MORTGAGEE. Landlord cannot distrain but within six months after expiration of tenancy. Goods seized are in custo- dia legis. Tenancy must be real not fictitious. Amount of rent reserved material in determining lona fides. pursuance thereof («). But the provisions of the English Bills of Sale Acts of 1878 and 1882 apply expressly to instruments giving powers of distress by way of security (o). Under the Statute 8 Anne chapter 14 the landlord may not distrain but within six months next after the termina- tion of the tenancy. And a mortgagee who distrained two years after the maturity of the mortgage, when by a special provision in the mortgage deed the tenancy expired, was held liable in an action for illegal distress ( p). Pending the distress the goods taken by the mortgagee are in the custody of the law and not liable to seizure by chattel mortgagees or execution creditors so long as no fraud is on foot and no contention or contrivance exists to prejudice chattel mortgagees {q). In order to give the mortgagee the right to distrain as against creditors the tenancy created must be a i-eal tenancy entered into in good faith and intended to be acted upon. If the attornment clause is merely conti'ived to enable the mortgagee to seize the goods of the mort- gagor in ca.se of the latter's insolvency no tenancy is created and none of the incidents of the tenancy arise, and the mortgagee is not entitled to di.strain (r). It is material in determining the bona fides of the tenancy to consider the amount of rent reserved by the mortgage. Where the rent is out of all proportion to the annual value of the lands the inference is that it was /lot the bona fide intention of the parties to create a tenancy. In Ex parte Jackson {s) Baggallay, L.J. in delivering judgment said : — "So far as any inference can bo drawn from the practice of inserting attornment clauses, it appears lo me that the benefit to be (w) Trust .f- Loan Co. v. Lawrason (1881) 6 Ont. App. 286; In re Stockton Iron Furnace Co. (1879) 10 Ch. D. 335. (o) Green v. Marsh [1892] 2 Q.B. 330. (p) Elinck V. Ontario Industrial Loan i^- Investment Company (1888) 16 Ont. 562. iq) Anderson v. Henry (1898) 29 Ont. 719. (r) Ex parte Jackson (1880) 14 Ch. D. 725. (s) (1880) 14 Ch. D. 725. FORM AND EFFECT OF THE PROVISO FOR DISTRESS. 57 derived from the attornment clause was intended to be an equivalent for that which the mortgagee would derive from the rent if the tenant had been a stranger. What would that equivalent be? Would it not be a right to the payment of a fair and reasonable rent such as the ordinary tenant would be willing to give for the property under ordinary circumstances? That, as it seems to me, is the rent for which a properly prepared attonement clause should make provision, not necessarily the exact amount which a tenant would pay for the property but such an amount as a willing tenant would probably pay as a bona fide rent. If the rent so reserved is clearly in excess of what would be a fair and reasonable rent, it appears to me that although you may call it rent it is no longer a real rent but a ficti- tious payment under tbe name of rent." And SO where a mortgage of real estate provided that the moneys secured thereby amounting to $20,000 should be payable with interest at seven per cent, per annum as follows :—!$500 on December 1st, 1883 ; $500 on the first days of June and December in each of the four following years; and $15,500 on June 1st, 1888; and contained an attornment clause reserving rent equal in amount to the amount so payable ; it was held that the rent reserved was so unreal and excessive as to show conclusively that the parties could not have intended to create a tenancy and that the arrangement was unreal and fictitious (t). The stipulation, however, will be supported if the rent, although a large rent, is one which a tenant honestly might agree to pay and the landlord honestly might expect to receive (tf ). A mortgagee may apply the proceeds of a distress for Application rent in payment of whatever is due to him whether for ^ P'^^®® s* principal or interest. A contrary intention is not shown by the fact that the amount fixed for rent is equal to the sum due for interest and is payable on the same days (v). it > I 3 i ¥ (<) Hobbs v. Ontario Loan and Debenture Co. (1890) 18 S.C.R. 483; see also Imperial Loan 4' Investment Company v. Clement (1896) 11 Man. R. 428 and 445. (m) Ex parte Williams, in re Thompson (1877) 7 Ch. D. 138: In re Stockton Iron Furnace Co. (1879) 10 Ch. D. 335. (v) Ex parte Harrison, in re Belts (1881) 18 Ch. D. 127, overruling Hampsonv. Fellows (1868) 6 Eq. 575. SECTION II. Limitations of the Right of Distkess. Kffoc -'f attorntiiont clause. i. To the Goodfi of the Mortgagor. A valid attornment clau.se oive.s to the niortoajjee all th." v", .flits of a landlord. If not restricted by statute the ni(jrtoatjee may distrain upon the goods of third persons and will be entitled to priority over execution creditors (w). In Ontario under section 81 of the LtDullord and 7V»f' ^ V /' i-> . . r mortgagor distrain for interest due upon the mortgage is limited to and to goods not exempt. (//) Edmonds v. Hamilton Provident and Loan Socictn (1891) 18 Ont. App. ;]47, per Osier J. at p. 3ii8. (z) R.S.O. (1897) e. 121. (a) Edmonda v. Hamilton Provident and Loan Socieli/ (1891) 18 Ont. App. 347. (h) fAnsti'ad y. Hamilton Provident and Loan Socieli/ (1890) 11 Man. R. 199. ((•) R.S. Man. (1891) c. 40, s. 2. 60 RIGHTS AND LIAlilLITIES OF THE MORTGAGEE. Does not apply to mortgagee as landlord. the ^oods and chattels of the mortgagor only, and so at such goods and chattels to such only as are not exempt from seizure under execution. It has been held, however, that this section has no reference to the right of a mortgagee to distrain for rent under a tenancy validly created but only to the right to distrain for interest as such under the ordinary distress clause contained in the Act respecting Short Forms of Indentures (d). This distress clause is identical with that contained in the Ontario act. Where a mortgage deed contains a provision that the inortgagee may distrain for arrears of interest and also an attornment clause by which the mortgagor becomes a ti^nant of the mortgagee, and the mortgagee distrains for arrears of interest, but not for rent as such, on the crops of a lessee of the mortgagor, the distress is wholly illegal for the defendant can only take the goods of the mortgagor foi" arrears of interest (e). The right of the mortgagee, therefore, does not extend to the goods of the assignee of the equity of redemption. So that where the lands are sold by the mortgagor and he is not in possession the mortgagee's right to distrain is gone. ii. Limited to Goods not exempt from Seizure under Execution. In Ontario the goods and chattels exempt from seizure under execution shall not be liable to seizure by a landlord goodsexempt for rent in respect of a tenancy created after the first under ^^y of October, 1887, as provided by section 30 of the execution. Landlord and Tenant's Act (/). But a tenant who is in default for non-payment of rent and claims the benefit Landlord cannot distrain {(\) Linstead v. Hamilton Provident aw >'oan Soeiety (1896) 11 Man. R. 199. (e) Miller v. Imperial Loan and Investment Company (1896) 11 Man. R. 247; 16 C.L.T. 298. See also Edmonds v. Hamilton Provident and Loan Society (1891) 18 Ont. App. 347. (f) R.S.O. (1897) c. 170. LIMITATIONS OF THE RIGHT OF DISTKESS. 61 of the exemption from distress to which he is entitled under that act must give up possession of the premises forthwith or be ready and offer to do so. This is provided by section 32. By section 15 of the Act respecting Mortgages of Real Estate (g) above quoted the right of a mortgagee to distrain for interest in arrear on a mortgage is limited to tlie goods and chattels of the mortgagor, and as to such goods to such only as are not exempt from seizure under execution (h). (fir) R.S.O. (1897) c. 121. (h) In Ontario the following provisions regarding exemptions from seizure under execution are contained in the Execution Act, R.S.O. (1897) C.77, 88. 2 & 3:— 2. The following chattels shall be exempt from seizure under any writ, in respect of which this Province has legislative authority, issued out of any Court whatever in this Province, namely: (1) The bed, bedding and bedsteads (including a cradle) in ordinary use by the debtor and his family ; (2) The necessary and ordinary wearing apparel of the debtor and his family ; (3) One cooking stove with pipes and furnishings, one other heating stove with pipes, one crane and its appendages, one pair of andirons, one set of cooking utensils, one pair of tongs and shovel, one coal scuttle, one lamp, one table, six chairs, one washstand with furnishings, six towels, one looking glass, one hair brush, one comb, one bureau, one clothes press, one clock, one carpet, one cupboard, one broom, twelve knives, twelve forks, twelve plates, twelve tea cups, twelve saucers, one sugar basin, one milk jug, one tea pot, twelve spoons, two pails, one wash tub, one scrubbing brush, one blacking brush, one wash board, three smoothing irons, all spinning wheels and weaving looms in domestic use, one sewing machine and attachments in domestic use, thirty volumes of books, one axe, one saw, one gun, six traps, and such fishing nets and seines as are in common use, the articles in this sub -division enumerated not exceeding in value the sum of$150 ; (4) All necessary fuel, meat, fish, flour and vegetables actually provided for family use, not more than sufficient for the ordinary consumption of the debtor and his family for thirty days, and not exceeding in value the sum of $40 ; (5) One cow, six sheep, four hogs, and twelve hens, in all not exceeding the value of $75, and food therefor for thirty days, and one dog ; (6) Tools and implements of or chattels ordinarily used in the debtor's occupation, to the value of $100 ; (7) Bees reared and kept in hives to the extent of fifteen hives. Mortgagee can distrain for interest on goods of mortgagor only, and only on goods not exempt from seizure under execution. Goods exempt from seizure under execution. Bedding. Wearing apparel. Furniture. Food and fuel. Animals. Tools. Bees. 3. The debtor may in lieu of tools and implements of or chattels Election ordinarily used in his occupation referred to in clause 6 of section 2 of debtor, of this Act, elect to receive the proceeds of the sale thereof up to 62 KKillTS AND MAHILITIKS (»F THE MoHTOAUEE. Limited to six yt'iii's' arrf'iirs as bctwet'ii the jmi'tit's. Twenty years' arreni'H recoverable l)y iu'tioii on the covenant. Limited to one year's arrears as against creditors. iii. Liuiiti'il fii si.r Years' Ai'l't'Hi's us hcfirmi t/ir I'dflics If, 1(1 dill' Vi'dr's Arrcors as a(/aliist {'i'caI liars. Wlicit' the iiiortiTiioXH' lias tlic ri";ht to (liHtrniii for anc.'irs ui intcrt-st or I't'iit he i.s liiuited as botwct'ii the parties ami ajiaiiist tlu' lands to six years' arrears. Section 17 of the Rral I'rajtirfi/ L! Ill Ifafiaii A(t(i) is as folhjws: — 17. Xo arrears of rent, or of interest in res])eet to any sum of money ciiarged njion or i)aya))le out of any land or rent, or in res])ect of any letraey. or any dannif^es in respect of sucli arrears of rent or interest, sliiill lie recovered by any distress, or action, but within six yeais next after the same respectively has become due, or next after any acknowledfrment of the same in writinj; hiis been given to the l)erson entitled thereto, or his afjent, signed liy the person by whom the same was payable, or his af^ent. 'I'liis section does not limit the anioinit of arrears of interest recoverable in an action on the covenant for pay- ment. In mortoaufs made before the 1st day of July, 1H1I4, twenty years' arrears, and in mortoaoes made after that date ten years' arrears are rec()veraV)le by action on the covenant ( /' ). As against creditors of the mortgaoor tlie riglit of tlie mortgaoee is further limited to one 3'ear's arrear.s by the Act ri's/icrfi iHj Marfjjayi's of Real Esfafr (/.■). Section 1(1 of that act is as follo\vs : — 16. (1) As ngninst creditors of any mor'tcnffo'' or person in jiosses- sion of mortftaj^ed premises under a mortfjagor, the right, if any, to distrain upon the mortgaged premises for arrears of interest or for rent, in the nature of or in lieu of interest under the provisions of any mortgage executed after the 'j;!rd day of April, 1887, shall be restricted to one year's arrears of such interest or rent, but this restriction shall not ai)])ly unless some one of such creditors shall be an execution creditor, or unless there shall be an assignee for the general benefit of such creditors appointed before lawful sale of the goods distrained, nor unless the olWeer executing such writ of execu- tion, or such assignee shall, by notice in writing to be given to the $100, in which case the officer executing the writ shall pay the net proceeds of such sale if the same do not exceed $100, or, if the same exceed $100, shall pay that sum to the debtor in satisfaction of the debtor's right to exemption under said subdivision 6, and the sum to wliich a debtor shall be entitled hereunder shall be exempt from attachment or seizure at the instance of a creditor. ((•) R.S.O. (1897) c. 133. (j) R.S.O. (1897) c. 72, 8. 1. (k) R.S.O. (1897) c. 121, s. 16, sub-ss. 1, 2, 3. LIMITATION'S <>F THE RIGHT OF DISTRESS. 63 person distniininj,', or his attorney, bnililT, or agent, before «iu'h lawful sale, claim the benefit of the said restriction, and in case siicli notice is so given, the distrainor shall relinquish to the officer or assignee the goods distrained, upon receiving one year's arrears of such interest or rent and his reasonable costs of distress, or if such arrears and costs shall not lie paid or tendered lie shall sell only so nnich of the goods distrained as shall be necessary to satisfy one year's arrears of such interest or rent and the reasonable costs of distress and sale, and shall thereupon relinquish any residue of goods, and pay any residue of moneys, proceeds of goods so distrained, to the said officer or assignee. (2) Any ofMcer executing a writ of execution, or any assignee who shall pay any money to relieve goods from distress undei' the next j)rece»ling siil)-section, shall be entitled to reimburse himself therefor out of the proceeds of the sale of such goods. (;i) Goods distrained for arrears of interest or rent, as aforesaid, shall not be sold except after such public notice as is now re(|uired to be given by a landlord who sells goods distrained for rent. Ill Manitoba the laiidlord is limited to throe montliH' arrears of rent where tlie same is payable (|uarterly or more l're(|uently, and to one year's arrears when the same is payable less t're(|nently than (jnarterly, ,is aijainst any writ of execution or attachment issued out of any court of that Province (i). Thus far we have discussed the ri<>-ht of a mortt^ai^ee to age(> coukl not recover ; for the promise which was verbal was a contract for an interest in lands within section 4 oi t]w Shifntc (if Fni.adi^; and if the transaction amounted to a lease it was not binding unless in writing under section 2 of the statute {d). Where a mortgage contains an acknowledgment of the receipt of mortgage money but no covenant for repayment this does not of itself atlbrd conclusive evidence of a debt, so as to enable a mortgagee or his assignees to maintain an action for its recovery. It was held that where no money was advanced by the mortgagee, but the mortgage was given for a debt due by the mortgagor to the mortgagee who, in consideration of getting the mortgage, agreed to release the mortgagoi' from all personal liability, the plaintitls who were assignees of the mortgage were not entitled to recover (e). Where liowever there is evidence If mortgage of a debt or loan the moneys may be recovered by action gecuie a debt iiill'.oujifh tliere is no covenant to pay ( /"). or loan, '^ ^ . 1 J v^ / action will In a Welsh mortgage from the nature of the contract lie. between the parties the mortgagor incurs no personal obligation to pay the money secured thereby although it was a loan. (<•) Jai'ksou V. Ycomans (1876) 39 U.C.R. 280. ((/) Jackson v. Ycomam (1876) 39 U.C.R. 280. («) London Loan Company v. Smyth (1882) 32 U.C.C.P. 530. (/■) Yates V. Aston (1843) 4 Q.B. 182 ; Sutton v. Sutton (1882) 22 vCh.' I). 511. 66 HKaiTS AND Ll.U'.liJTIES OF THE MORTGAGEE. Statutory covenant for payment. Short form. Mortgagor may limit his liability to pay. It is usual to insert in mortgages tlie following covenant for payment: — . , " And the said nioi-tgagor doth hereby, for himself, liis heirs, executors and administrators, covenant, promise and agree to and with the said mortgagee, his heirs, executors, administrators and assigns, in manner following, that is to say : That the said mortgagor, his heirs, execu- tors, administrators or some or one of them shall and will well and truly pay or cause to be paid unto the said mortgagee, his heirs, executors, administrators or assigns, the said sum of money in the above proviso mentioned, with interest for the same as aforesaid, at the days and times and in the manner above limited for payment thereof, and shall and will in everything well, faithfully and truly do, observe, perform, fulfil and keep all and singular the provisions, agreements and stipulations in the said above proviso particularly set forth, according to the true intent and meaning of these presents, and of the said above proviso." This form of covenant has been adopted in Ontario by the Act respectmc) Short Fimiis of Mortgages (g). The eijuivalent short form is as follows : — " The said mortgagor covenants with the said mort- gagee that the mortgagor w^ill pay the moi'tgage money and interest and observe the above proviso." A mortgagor may by his covenant restrict his liability as to the amount and as to the terms on which the mort- gage may be enforced (h). In a mortgage for S3, 250, which contained the usual printed short form covenant for payment, the following words were added in writing to the covenant : — " But before proceeding upon the covenant the moit- gagee shall realize upon the lands mortgaged, and the iff) R.S.O. (1897) c. 126, Schedule B, clause 4. There are similar provisions in Manitoba and British Columbia. (/() n'llnon V. Fhmitnj (18D3) 24 Ont. 388. (iESEHALLY. 67 Implied covenant for payment in mortgages made after 1st July, 1886. niortgagov shall then be liable only to the amount of $600 or such lesser sum as will with the net proceeds from the lands make tlie i?3,250 and interest." The last clause in the mortgage, also added in writing, provided that " in no event shall the personal liability of the mort- iratror on his covenant exceed S600." It was held that the mortgagor was not subject to any liability on the covenant until after the mortgagee should have realized upon the lands and then only to the extent of $600 (i). In Ontario under section 5 of the Act respect ing Mort- (jages of Real Estate (j) a covenant to pay on the part of each person who conveys as beneficial owner is implied in all mortgages made after the 1st day of July, 18S6. Sec- tion 5 is as follows : — 6. There shall, in the several eases in this section mentioned, be deemed to be included, and there shall in those several cases by virtue of this Act be implied, covenants to the effect in this section stated, by the person or by each person who conveys, as far as regards the subject-matter or share of subject-matter expressed to be conveyed by him, with the person, if one, to whom the conveyance is made, or with the persons jointly, if more than one, to whom the conveyance is made as joint tenants, or with each of the persons, if more tha» one, to whom the conveyance is made as tenants in common, that is to say :— (a) In a conveyance by way of mortgage, the following covenants by the person who conveys, and is expressed to convey as beneficial owner, namely : — For payment of the mortgage money and interest, and observance in other respects of the proviso in the mortgage ; Good title; Right to convey ; That, on default, the mortgagee shall have quiet possession of the land ; Free from all incumbrances ; That the mortgagor will execute such further assurances of the said lands as may be requisite; That the mortgagor has done no act to incumber the land mort- gaged ; According to the tenor and effect of the several and respective forms of covenants for the said purposes set forth in Schedule B to the Act respecting Short Forms of Mortgages. The right of a mortgagee to sue for principal or interest Right to sue in Division (/) mison V. Fleming (1893) 24 Ont. 388. °" ' (j) R.S.O. (1897) c. 121. (/,) R.S.O. (1897) c. 60. 68 RIGHTS AND LIAHILITIES OF THE MORTGAGEE. in the Division Courts is governed by section 79 of the Division Courtfi Ad (k) which is as follows : — 79. (1) A cause of action shall not be divided into two or more actions for the purpose of bringing the same within the jurisdiction of a Division Court, and no greater sum than $100 shall be recovered in any action for the balance of an unsettled account, nor shall any action for any such balance be sustained where the unsettled account in the whole exceeds $400. (2) Where a sum for principal and also a sum for interest thereon is due and payable to the same person upon a mortgage, bill, note, bond or other instrument, he may, notwithstanding anything in this section contained, but subject to the other provisions of this Act, sue separately for every sum so due. The niortoaofee cannot sue for an instalment of interest upon a niortgacje, the amount of the instalment being within the jurisdiction of the Division Court, when other instalments are due and the whole amount due exceeds that for which a suit may be brought in the Division Court (/)• Where a mortgage deed contains a covenant for pay- ment of principal and interest on a tixed day the principal and tiie interest are two distinct debts, and either may be sued for separately from the other (m). (I) Re Real Estate Loan Co. v. Gmrdhonsc (1898) 29 Ont. 602: fol- lowing Re Clark v. Barber (1894) 2G Ont. 47. {tn) Dicketmm v. Harrisim (1817) 4 Price 282; 18 R.C. 474. SECTION II. Who May Sue and Be Sued. i. Who nuiy sue. The general rule is that only parties to a contract may sue or be sued thereon. But the benefit and in some cases the burden of the covenant may devolve on persons other than the parties to it either by assignment or by operation of law. Where there is a debt due from the mortgagor to tlie mortgagee or a loan for which the mortgage has been given, the mortgagee during his lifetime and while he is the holder of the security may maintain an action whether there is a covenant for payment or not ; and where there are two or more mortgagees the survivor or survivors of them may sue in like manner- for he or they are entitled by law to receive the money and give discharges for the same (« ). The executors or administrators of a deceased mort- gagee who died entitled to the mortgage money ma}' also sue to recover it as a debt, and the remedies for it devolve upon them by law (o). Although the heirs of the mortgagee are named in the statutory covenant for payment it is improper to make the covenant to them. Tiie personal representatives will not thereby be deprived of their ordinary right to the moneys as being personalty or of the right to sue for the moneys in their own names (2^). Where there are two or moi"e executors or administra- tors all may sue ; but it is doubtful if one or any number less than all of the surviving executors or administrators may maintain an action on the covenant, although it has (w) R.S.O. (1897) e. 121, s. i:). (o) R.S.O. (1897) c. 127, s. 4. (p) Leith's Real Property Statutes p. 420. General rule: only parties to the con- tract may f*ue or be sued. Mortgagee. Survivor of two or more mortgagees. Executors or administra- tors. Heirs. One of two or more executors. 70 KKiHTS AM) LIAI'.JLITIES OF THE MORTGAGEE. One of two or more mortgagees. Executors of surviving mortgagee. Assignees. been held that two of three executors may give a valid discharge (f/). But it \v(mld appear that one of several mortgagees or one of several executors may bring an action on the covenant if their co-mortgagees or co-executors will not join. In that case tlie co-mortgagees or co-executors should Ije made defendants (r). In like manner tlie executors or administrators of ohe last survivor of two or more joint mortgagees ma}'- recover the mortgage moneys by action as they are the persons entitled b}" law to receive the same. This provision, how- ever, applies only to mortgages made after the 1st day of July, 188(5, and only if and so far as a contrary intention is not expressed in the mortgage (.v). The assignee of the mortgage security also may sue on the c(jvenant in his own name. T'he Ontario Jitdieature Art R.S.O. (1807) chapter 51 section 58 sub-section 5 provides as follows : — (5) Any absolute assignment, made on or after the 31st day of DecemVier, 1897, by writing under tlie hand of the assignor (not pur- porting to be by way of charge only) of any debt or other legal chose jn action of which exjiress notice in writing shall have been given to the debtor, trustee or other person from whom the assignor would have been entitled to receive or claim such debt or chose in action, shall be effectual in law (subject to all equities which would have been entitled to priority over the right of the assignee if this section had not been enacted) to pass and transfer the legal right to such debt or chose in action from the date of such notice and all legal and other remedies for the same and the power to give a good discharge for the same without the concurrence of the assignor. It will he noticed that this section applies to absolute assignments made after the 31st day of December 1897 ; and it would seem that express notice in writing to the debtor is essential to the validity of the assignment. This enactment corresponds to the English Juulicature Act 1873, 3() k 37 Vict, chapter 00, s. 25 (0). Prior to this enactment the right of the assignee to sue depended upon (7) A'c /«/r/(^ ./o/fH.vox (1875) G P.K. 'J"25. (/•) Liikv V. S,)itth Kemiufjfon Hotel Company (1879) 11 Gh. D. I'il. (.s) It.S.O. (1H!)7) c. l-Jl. s. 13. WHO MAV SUE AND BE ISl'ED. 71 section 7 of the Mercantile Amendment Act R.S.O. (1887) chapter 122 which is as follows: — 7. Every debt and chose in action arising out of contract ahall be assignable by any form of writing, but subject to sueli conditions or restrictions with respect to the right of transfer as are contained in the original contract; and the assignee thereof shall sue thereon in his own name in the action, and for such relief as the original holder or assignor of such chose in action would be entitled to sue for in any Court in this Province. ' The repealing act 60 Vict. (Ont.) chapter 15 s. 5 .saved the rights of persons claiming under assignments executed before the new act came into force. The recent enactment does not confer new rights but gives a new mode of enforcing rights under the assignment, and transfers the remedies as well as the rights of the assignor (0- The enactment applies only to absolute assignments ; Absolute but a mortgage of debts due to the mortgagor and, it would seem, a mortgage of a mortgage made in the ordinary form with a proviso for redemption and reassignment upon repayment is " an absolute assignment (not purporting to be by wa}' of charge only)" within the meaning of the act, and the assignee may maintain an action in his own name ( a ). Lejjatees or devisees of the mortffaffe security cannot Legatees and devisees, maintain an action on the covenant for payment of the mortgage moneys as they are not parties to the contract. In general they would require an assignment of the covenant from the executors or administrators of the moi'tgagee before bringing action. Where debentures are secured by a trust deed the Trustees. trustees are the proper persons to bring an action ; but if they refuse to do so an action may be brought by one of the debenture holders. The suit should be on behalf of the plaintiff and all other debenture holders and tile trustees should be defendants. The plaintiff's claim (/) fFalker v. Bradford Old Bank (1884) 12 Q.B.D. 511. (u) Durham v. Robertson [1898] 1 Q.B. 705: Tancred v. Dclagoa Bail and East Africa Railway (1889) 23 Q.B.D. 239. 72 RIGHTS AND LIAIJILITIES OF THE MORTGAGEE. Cestui que trust. Sheriff. in such an action is that the trusts of the deed be carried into execution (v). Trustees, executors and administrators may sue and be sued under Rule 193 which is as follows: — 193, Trustees, executors and administrators may sue and be sued on behalf of, or as representing, the property or estate of which they are trustees or representatives, without joining any of the persons benefi- cially interested, and shall represent them; but the Court or a Judge may at any time order any of them to he made parties in addition to, or in lieu of, the previous parties. In a suit brought by executors of a mortgagee to foreclose it was held that the heirs of the deceased mort- gagee or the persons beneficially entitled under his will were not necessary parties (iv). The cestui que trust is entitled to bring an action again.st his trustee and compel him to perform any par- ticular act of duty. Tlius, if the legal estate in the hands of the trustee be disturbed by a stranger the cestui, que trust, though he may not institute legal proceedings in the name of a trustee without his authority, may oblige the trustee, on giving him a proper indemnity, to lend his name for asseiiing the legal right. If the trustee of a covenant, even a voluntary one, will not sue upon it, the cestui que trust may compel the trustee on a pi'oper indemnity being given to lend his name to the cestui que trust, so as to enable the latter to sue (x). In the case of a mortgage made to a mortgagee as trustee for a third person it would seem that in equity the cestui que trust may maintain an action on the covenant as well as the trustee (y). In Ontario under the Execution Act(z) a sheriff who has taken a mortgage in execution on behalf of a (v) Troughtonv.Binkes (1801) 6 Ves. 573. (m?) Lawrence v. Humphries (1865) 11 Or. 209. (x) Foley v. Burnell (1783) 1 B.C.O. 277; Fletcher v. Fletcher (1844) 4 Hare 67. iy) Oavdy v. Gandy (1885) 30 Ch. D. 57. (z) R.S.O. (1897J c. 77, s. 24. WHO MAY SUE AND BE SUED. 73 creditor of the mortgagee may maintain an action to recover the mortgage money. ii. Who may he sued. The mortgagor during his lifetime and whether he remains the owner of the mortgaged property or not continues to be liable for the mortgage indebtedness. Where there are two or more mortgagors both or all may be sued ; and if the covenant is several, or joint and several, any one or more may be sued. Whether the covenant is joint or several depends upon the construction of the express terms of the covenant itself, and it may be explained by evidence of the interest of the covenantors in the property or in the moneys advanced, or by other circumstances of the transaction. If the covenant is a joint covenant the action must be brought against all the covenantors if living. If one of the joint covenantors be dead the action may be brought against the executors or administrators of the deceased covenantor in the same manner as if the covenant liad been joint and several and without joining the other coven- antors although they may be living {a). If one of tlie joint covenantors resides out of the jurisdiction the action may be brought against the others who reside within the jurisdiction, (b). The statutory covenant for payment is not sufficient to bind the "successors" of the mortgagors; a corporation sole therefore cannot bind its successors by the ordinary covenant for payment (c). The duly appointed trustees of a religious congregation, to whom by that description the site for a church has been conveyed, and who by that description give to the vendor to secure part of the purchase money a mortgage Mortgagor. One of two or more mortagagors. Joint covenant ; joint and several covenant. Successors not bound by statutory covenant. Trustee of a religious congregation not person- ally liable on thecovenant. (a) R.S.O. (1897) e.l29, s. 15. {b) ffilson Sons tfj- Co. v. Balcarres Brook Steamship Co. [1893] 1 Q.B 422; Eobb v. Murray (1890) 13 P.R. 397. (c) Parks v. Bishop of New Westminster (1897) 33 C.L.J. 302 (B.C.) 74 RUJHTS AND LIABILITIES OF THE MORTGAGEE. Executors. A mortgnKor trustee not personally liable. Covenant by married woman. witli the ordinary covenant for payment, are a corporation and are not personally liable upon tlie mortgage although it is signed and sealed by them individuall}'^ (cc). The executors or administrators of a mortgagor may be sued under the covenant for payment, and also the heirs ; but only to the extent of the property received from the mortgagor at his death. In addition to the remedies by action on the covenant the mortgagee may prove his claim against the mortgagor in bankruptcy or insolvency proceedings or in administration proceedings undertaken by the court, and he may follow the assets in the hands of the legatees or devisees. As a general rule a trustee executing a mortgage will not be personall}^ liable to repay the debt. And where a person holding land as a trustee, at the request of beneficial owners and without any consideration to him, executed a mortgage on land for the benefit of the owners, and the mortgage deed contained without his knowledge a covenant to pay the mortgage debt, it was held that the covenant was not enforceable against the mortgagor personally even by the assignee of the mortgage for value without notice ; and that his remedy was restricted to foreclosure pro- ceedings against the lands (d). Likewise a covenant in a mortgage deed to pay the mortgage money out of a specific fund is not sufficient to fix the covenantor with personal liability (e). If the mortgagor is a married woman and the mort- gage deed contains a covenant by her to pay the principal and interest, she is not thereby made personally liable, but the covenant operates as a contract binding upon her general separate estate in the manner provided by the Married Women s Property Act (/). {cc) Beat;/ v. Gregoni (1897) 24 Ont. App. 325. See also Conserva- tors of the River Touc v. Ash (1829) 10 B. & C. 349; R.S.O. (1897) c. 307. {d) Patterson v. McLean (1891) 21 Ont. 221. {e) Matthew y.lUackmore [Um) IB.. Si 'iii.7Q2. if) R.S.O. (1897) c. 1G3. ' . WHO MAY .SUE AND BE SUED. 75 By that act it Ih enacted as follows : — 3. (1) A lufti'i'ied woman shall be capable of acquiring, holding, and disposing by will or otherwise, of any real or personal property as her separate property, in the same manner as if she were a feme .■sole, without the intervention of any trustee. {'2) A married woman shall be capable of entering into and rendering herself liable in respect of and to the extent of her separate property on any contract, and of suing and being sued, in all respects as if she were a feme sole, and her husband need not be joined with her as plaintiff or defendant, or be made a party to any action or other legal proceeding brought by or taken against her; and any damages or costs recovered by her in any such action or proceeding shall be her separate property; and any damages or costs recovered against her in any such action or proceeding shall be payable out of her separate property, and not otherwise. (U) Every contract entered into by a married woman prior to the 13th day of April, 1897, shall be deemed to be a contract entered into by her with respect to and to bind her separate property, unless the contrary is shewn. (4) Every contract entered into by a married woman prior to the said 13th day of April, 1897, with respect to and to bind her separate property, shall bind, not only the separate property which she was possessed of or entitled to at the date of the contract, but also all separate property which she has since acquired or may hereafter acquire. 4. (1) Every contract entered into by a married woman on or after the 13th day of April, 1897, otherwise than as an agent: {a) yhall be deemed to be a contract entered into by her with respect to and to bind her separate property whether she is or is not in fact possessed of or entitled to any separate property at the time when she enters into such contract, and it shall not be necessary in any proceeding to prove that she had any separate property at the time when such contract was entered into, or subsequently; (h) Shall bind all separate property which she may at the time or thereafter possess or be entitled to ; and (c) Shall also be enforceable by process of law against all property which she may thereafter while discovert possess or be entitled to. (•2) Nothing in this section contained shall render available to satisfy any liability or obligation arising out of such contract any sei>arate property which she is restrained from anticipating (g) . A iiuii'i'ied woman is not liable on the covenant for payment unless it be shewn that the property mortgaged was her separate property. Thus where the married woman was merely a trustee for her husband of property purchased by him and conveyed to her and she joined with her husband in creating a mortgage upon it, she was held (f/) Bee as to former and present acts relating to married women's property Holniested & Langton's Ont. Jud. Act, "Jnd ed., 331 ct w/. Married woman's liability. 76 HKiHTS AND LIAIUJJTIES OF THE MORTGAGEE. Mortpngor after parting with equity oJF redemption. Purchaser of equity of redemption not liable. Privity of conti'uft. Mortgagor entitled to eoveiumt of iTidemnity from pur- chaser of equity of redemption. not liiihlt' on the covenant for payment althou^li the inoftpip'e had no knowledge of her position (gg). The mortgagor continues to be personally liable under his covt'uant although he has conveyed away the equity of redemption in the land. In such a case the mortgagee will be entitled to judgment on the covenant only on the term that upon receiving payment of the amount due from the mortgagor he shall reconvey the property to liim subject to the existing e(juity of redemption. The original mortgagor will thus become a mortgagee of tlte proper-ty {h). The burden of the covenant to pay the mortgage money does not run with the land and the purchaser of the ecjuity of redemption from tlie mortgagor will not be liable to the mortgagee; there is no privity of contract between them (i). Although a purchaser from the mortgagor of the etpiity of redemption covenants with him to pay off the mortgage debt, this affords no ground, owing to the want of privity, for the mortgagee proceeding against the purchaser either at law or in e(|uity to compel him to perform his covenant {j). Altliough the purchaser of the equity of redemption is not directly liable to the mortgagee to pay the mort- gage debt, there is an implied obligation upon his part to indemnify the mortgagor against the mortgage debt, and he may be re([uired to give a covenant for stich indemnity(/.:). In the Northwest Territories (I) there is an implied covenant in every instrument tran.sferring land subject to a mortgage that the purchaser will pay the mortgage moneys and indemnify his grantor. ((/(j) Gordon v. Ifarren (1897) 24 Ont. App. 44. (/() Einnaird v. Trollope (1888) 39 Ch. D. 636. (() Frontenac Loan and Investment Society v. Hysop (1892) 21 Ont. .')77; Canada Landed and National Investment Company v. Shaver (189.')) 22 Ont. App. 377. (J) Clarkson v. Scott (1878) 25 Gr. 373. (k) Bridgman v. Daw (1892) 40 W.R. 253; Waring v. Ward (1802) 7 Ves. 332; Jones v. Kearney (1842) 1 Dr. & War. 134; Thompson v. Wilkes (1856) 5 Gr. 594; Canavan v. Meek (1883) 2 Ont. 636; Boyd V. Johnston (1890) 19 Ont. 598. (/) 57 & 58 Viet. (D.) (1894) e. 28, 8. 65. WHO MAY SUE AND HE SUED. 77 In Manitoba a similar provision is in f<)rce(7»0- A married woman, however, who purcliases mort- Marrieil gaged lands is not under any obligation to nidemiuty lier grantor, unless she expressly undertakes to do so(»). But where mortgaged lands are conveyed to a married woman, and the conveyance although not executed by her contains a recital that she shall pay oft' the mortgage debt, in such case if she takes possession and enjoys the benefits without disclaiming she will be bound to perform the obligation (o). There may, however, be an express agreement between the mortgagor and the purchaser of the eipiity of redemp- tion that the latter shall not be liable for such indenuiity, and parol evidence of such an agreement is admissil)ie (/>). The eciuitable obliiration of a purchaser of land which Oi.lif?atiou is subject to a mortgage to indemnity the mortgagor may be against the mortgage debt may be assigned by the latter a^*^'^''"^^ ^o to the mortgagee who may maintain an action thereon against the purchaser for recovery of the mortgage moneys {q). Where lands held in trust are mortgaged by the trustee the mortgagee is not entitled to the benetit of any equities or rights arising eitiier under express contract or upon e(iuitable principles entitling the trustee to indemnity from his cestui que trust (r). (m) R.S. Man. (1891) c. 133, s. 81. (n) McMichael v. Wilkie (1891) 18 Ont. App. 464. (o) Small W.Thompson (1897) 28 S.C.R. 219. (/>) British Canadian Loan Co. v. Tear (1893) 23 Ont. 6(54. [q) British Canadian Loan Co. v. Tear (1893) 23 Ont. 664; Campbell y. Morrison (1897) 24 Ont. App. 224; affirmed in the Supreme Court of Canada suh. nom. Maloney v. Campbell 28 S.C.R. 228. (»•) rn^iam V. ^a(/bM)- (1890) 18 S.C.R. 472. mortgagee. SECTION J II. WllKN THE RUiHT TO SrK AUISES. Demand not necessary unless required by tlie terms of the contrnet. Verbal demand sufficient. Place of payment. 'riic ii;;lit of the iii()rt<;ii*;«'(' to rceoviT tlu' iiHU't^n^f inoiifvs aiisfs wlicii tlicy bt'coinc due iiccordiiitf to the contnict. If tlific is u covenant to pay on a certain day there is an implied ol)li<;ation not to sue before that day(N). When a day certain is named for pa; :" nt the dehto!' has the wliole of tliat day; and an action eainiot be hron;,dit until the next day. There is an appaient exception where tlie th'btor has ma]<' on (h^mand no demand need bt; made on the prin- ipal tumor: but otherwi.se if the action is attains' ty {a). In case a )iinst which eijuity would relieve (/>). But it is now well settled that such a provision is to be regarded as the con- tract of th(,* parties and not i^' the nature of a penalty at>ainst which relief will be j;ranted (<•)• In Stern" v. Beck ((/) Knitfht Bruce, L.J. said : — " The deed provided for payment of the debt by instalments . . . and further jirovided that in a certain event payment of the debt should be accelerated. It did not provide that the amount payable should be increased, but only provided that instead of being paid at future periods with interest up to tliese i)eriods it should become jiay- able at once with interest up to that time. To a proviso of such a luiture none of tho princi))les of equity relating to relief in the case of jienalties are in my opinion applicable." But at any time before judgment has been recovered the mortgagor under the terms of the covenant on payment of arrears and costs may l)e relieved from the consequences of his default. After judgment lias been recovered in an action on the covenant alone lelief will not be granted. Thus, where by virtue of an acceleration clause the whole of the mortgage [h) Knapp v. Camcrou f H58) G Gr. SfjO. {(') TiiUr v. HiuUw (1H7K) W Out. App. 5;$ per Moss, C.J.O., at p. CO; Umhum v. lioss (1884) (i Out. \M\ Sicnic v. Heck (18()3) 1 DeG, J. & 8.595; lyUnov v. Camphdl (1893) 15 P.U. 254; Leel SECTION IV. What the Mortgagee is entitled to Recover. a il Under the covenant for payment the mortgagee is entitled to recover tlie principal and interest, if any, and in certain cases the costs and expenses which he has properly incurred in connection with the security. Only the amount actually advanced can be recovered notwithstanding that a larger amount appears in the mortgage deed ; and parol evidence is admissible to shew that a less sum was advanced than that mentioned in the mortgage deed ( u). But the parties may stipulate that the mortgage shall be redeemable only on payment of a larger amount than that actually advanced ; or that a smaller sum if paid at an earlier date shall be accepted in full, and such .stipulations will be enforced (v). But in the ca.se of an expectant heir such a stipulation would not be enforced {iv). Where a proper sale has been made and the amount realized is not sufficient to satisfy the mortgage moneys and costs of sale, the deficiency may be recovered from the mortgagor. A mortgagee after a Ixnui, fide sale may svie on the covenant either a surety or the original debtor; he may not sue unless the .sale has been honjmi-MrKe)i:ie [1894] 1 Ch. 218; [1896] 1 Ch. 135; Field v. Hot)- kins (1890) 44 Ch. I). 524. (f) Morrell v. fVard (1863) 10 Gr. 231: Crawford v. Beard (1864) 14 r.C.C.P. 87. ^ CHAPTER VIII. Bar of Action on the Covenant hv Acts of the Parties. Accord and satisfaction. Release. Tlie inorti^agee's rifvlit of action on tlie covenant for pa3'ment may lie barred or extinguished by the acts of the parties tlieniselves or by statute. The riglit is extinguished by payment of what is due ; Payment and if tlie mortgagee obtain payment out of the lands he cannot afterwards pursue his right under the covenant for payment. But if he receive only part payment he ma}' proceed to foreclose or sell ; or he )iay recover the unpaid balance by action. Accoid and satisfaction is equivalent to payment and extinguishes the debt. A release of the mortgage debt if made under seal is binding even without consideration («). Delivery of the mortgage deed by the mortgagor to the mortgagee with the intention of releasing the debt does not in law release it, but it would be effectual if at the time the mortgagee declared himself a trustee of the mortgaged property for the mortgagor (/>). Where the mortgagee acquires the equity of redemption or where the owner of the eqxiity of redemption takes an assignment of the mortgage, then in the absence of express stipulation binding on the mortgagor the right of action against the mortgagor on the covenant to pay is extin- guished {c). The foundation of this rule would seem to be, not that there is a merger of the two estates as is sometimes stated, but that the purchaser fi'om the mort- gagor of the e(|uity of redemption is under an implied («) Foakes v. Hccr (1884) 9 App. Gas. G05. (h) In re ffaticock (1888) 'iT L.J. Ch. 793; Edwards v. fraltvr.s [1896J 1 Ch. 157. {(■) yorth nf SmtlfDid Morti/af/c Co. v. Udell (1882) 4G U.C.R. 511; British, (tnd Vtinadiuu Lixni Co. v. fnilinmx (1888) 15 Ont. 3GI); Forrest V. Gibson (1890) (j Mtvi. R. G12. Rijjht of action on covenant extinguished if mortgagee acquires equity of redemption. 88 UICHTS AND IJAlilLITlES OF THE MORTGAGEE. ol)li^ation to iiuk'imiify liini af^ainst the incuiiibranoi' ('/)• TliuH a inort^'a^fet' wlio has forecloHed tlie equity of redemp- tion and so united the two estates in his own person may nevertheless sue the mortgagor on his covenant for payment. In such a case the effect of bringing an action on tlie covenant will be to let in the mortgagor to redeem if he chooses to avail liimself of that right (/). Where tlie mortgagee accpiires tlie equity of redemption the two estates may become merged, but not as against an intervening incumbrancer (le to reconvey, he cannot afd'rwards sue on the covenant for payment. Where the mortgagee and mortgagor s(jld and conveyed part of the mortgaged properly, without the concurrences of a person to whom subseijuently to the mortgage the mortgagor had sold the remainiler of the property, and whose interest was known to the mortgagee, and the mortgagee covenanted for free- dom from incundjrances, it was held that the mortgagee having thereby put it out of his power to reconvey the whole of the mortgaged property could not call on the owner of the remaining portion for payment of tlie balance of the mortgage nioney (/•). This rule does not apply where the sale is under a power contained in the mortgage. But it applies to a sale under a decree in o suit to which the owner of the unsold portion was not a party (s). Where the mortgagee's right to claim a lien on the unsold portion has been put an end to, it is not revived by his obtaining two years afterwards the consent of tlie first purchaser to a reconvej'ance on payment of the mortgage money (/). But where a mortgagor conveyed part of the mort- gaged propert}' to a purchaser, and gave a covenant against incumbrances, and the mortgagee subsetpiently released the part so sold from his mortgage, it was held that as the release was in acconlance with the mortgagor's own obligation as to that part it did not affect the mort- {'/) British (Did Cauadian Lna» Co. v. IVilliams (1888) 15 Ont. 366; Palmer v. Heiidric (IS.yj) 27 Beav. 349. (>•) Goichnid v. Garhntt (1807) 13 Gr. r)7S. (s) Gotrhiiid v. (iarhiitl (18(57) 13 Gr. 578. (/) (Um-luiid V. Giirbiitl (1807) 13 Gr. 578; see nlno Gxthrie v. Shields 13 Gr. 584. BAR OF ACTION' OX THE COVENANT. m •jaiLjeo's own ri^ht to reeovfi- tho inort^Mtion. McK('i}zie{x), which was an action on the covenant foi- payment, the mortgagees entered into an agreement with one Treblecock, the then owner of the e(|uity of redemption, to extend the time for payment in consiy flic lu-t of tli»< iiiort^'iiKcc. Tht< niort>?ii(fne liiiH, flu'rcfDiT, \>y liiH a>,'i'('cniciit witli flu- jircsnit owner, niiulo h'lH inort>.'iiKt' uiircdiMMMiililc liy the iii(H't>,'aK"i' according to the t«»niis, and thf clTi'ct of that iiiuHt lie to ilis('harj,'i< t.lm itiortnafjor from lialdlity iiltojfftlicr. Till- inorljra^ior'H liatiility on liis covenant and liin rijflit to Inivftlie nicirtjraK"' t'stute ri-Htorod to him uf)on paynuMit arc n-eijiro- cai, and if tiic niort>,'aj;cc cannot rcMtorc tiic cHtatc in its integrity save so far as any iini>airmcnt whh warranted liy llie terms of the niorttrajre itself, siicii as a sale of jmrt of the land under a power, etc., then he cannot enforce th«( debtor's covejnmt, his liability is cone: Lorkliorl v. Ilanli/ (1H4(>) !» Heav. :i4!»; I'dlmir v. ffiinlrii (\mi) •27 Heav. :149; S.(". 2H Meav. ;i4l ; HikIi/v v. liichnis {IHI'A) h.li. HC.P. :t,-.H; IWilhir v.. /nuts (18(ir>) L.lt. 1 I'.C. HO; S.C. :i Moo. I'.C.N.S. ;t!t7: Fisher's liaw of Mortgage, 4th ed. p. 962) Coote's Law of Mortgage ")tli ed. j). 792." Hut it' in such an ii^n'eenR'iit to extend the time for payment the I'it^hts of tlie ni()rti(a<.jor are exprensly reserved he will not he diseluii'f^ed (//). And .so where the deaiini^s do not amount to a new contract and tliere is no bindinij agreement to extend tlie time for payment tlie right of action will not be im- paired (c). In MfCiuiKj V. liarhev {zz), which was an action on the covenant for payment, a mortgagor of land sold the ecpiity and took from the }mrchaser a coveiumt to pay oft' the mortgage, which he assigned to the mortgagee, who after- wards, without his knowledge, took by assiginnent from tlie ])urchaser of the equity the benefit of similar covenants from sub-purchasers, and agreed to exhaust her remedies against the latter before suing the purchaser. It was held that the nu^'tgagee being the sole owner of the covenant of the purchaser of the ecpiity with the mort- gagor, assigned to him as collateral security, had so dealt with it as to divest himself of power to restore it to the mortgagor unimpaired, and the extent to which it was impaired could only be determined by exhaustion of tne remedies provided for in the agreement between the mortgagee and the purchaser. The mortgagee, therefore, had no present right of action on the covenant in the mortgage. ((/) Trust (Old Loan Co. v.McKoizic (1896) 23 Ont. App. 167. (:) AldoHS V. Birks (1891) 21 Ont. 95. {::) (1898) 29 8. O.K. 12G. UAU OF ACTIOV ON THE roVKNANT. 9i 'I'hc rii'ht of tlir iiiort^'Jli'or to he (liHcliiir^-t'd in sucli .M'>rt>?n>,'or , , . IIS siirofv- caHes is Hoiiietiiiu'M j^rouinU'd on tlu" law ol' [(rincipul imd Htiivty. It \h Hiiid that the iuort«;a<;or alter partint*- with tlu- ('<|uity of redemption in in the position of a .suret}' foi- the purchaHcr who as between theniHelves is primarily liable for the mort«,'a;;e dc^bt. Tims in Mufllclni ri/ v. Tn/tlor (a) Hoyd, C. expresses this view as follows: - "I pioeoeded upon thn liiw as eimuciiitod in lUnchlvii v. hcinnj {!)) whicli in no wise conliicts with wliiit was (Iccidt'd in AliUins v. Ilirkx ((•). Botli casf's i'eeo);nize the law to ))e that the purclniser of an equity of n-dt'inption hciMJiiioa tlio principal for the iiaynii-nt of tlu> inorfjjaKP debt, and that any dt;e the raortti.'itror as l>einj^ in the circumstances merely a suretj' for the deht." In Ti'ast iiiitl Loiiii- ('oinpaiii/ v. McKenzic {'/) ami in Mcihuilfi V. liarhrr (c) it would seem that the riijht is put oji different "rounds. In the former of these two cases Maclemian, J. A. said : — "There is no doubt that when mortgaged land is sold hy a mort- gagor subject to a mortgage a sort of suretyship results, but it is altogether between the mortgagor and his vendee. The vendee is the person who as between tliem ought to pay, the debt is now his debt, and the mortgagor is his surety. But the mortgagee's position has not been changed. The mortgagor is the only debtor, and the land alone is still his only security. The expression "principal debtor" used in cases of suretyship imports that there is another debtor, namely, the surety. The present case is therefore not a case of suretyship at all within tlie decisions as to discharge of surety by dealings without his consent between the creditor and the principal debtor. It is really only a case of indemnity." And again :— "But even if McKenzie could be regarded as a surety before and at the time Treblecock entered into this agreement, I sliould have been of opinion that the reservation of remedies was sufficient and effectual to prevent the discharge of the mortgagor." The foundation of the mortgagor's right to be discharged True ground as gathered from these cases may be stated as follows : — mo*i^gagee The mortgagee's right to sue on the covenant and the mort- is unable to restore the (rt) (1892) 22 Ont. 312 at p. 315. unimpaired. {b) (No. 2) (1889) 19 Ont. 169; 18 Ont. App. 135. (c) (1891) 21 Ont. 95. (d) (1896) 23 Ont. App. 167. '(c) (1898) 29S.C.R. 12G. < !)4 HKiHTS AM) LIABILITIES OF THE MORTGAGEE. AUei'iitioii of coiitriH't. Kxteudin^' time witliout reserviition of rifj^hts. Moi'tfin>;eo bound if lie iM awiirf of suretyship at the time of tl'.e contract ; or if he becomes aware of it afterwards. L'aiTor's riirlit to have the inoi'to'ao-ed estate reHtored to liiin oil payment, are reciprocal, and if the niort^^aj^^ee lias by his dealin<,'s dives.'ed hinisell" of the power to restore the estate to the inort;;atror unimpaired, the liability of the mortirairor on the covenant is at an end. 'I'he consideration of the mortgao-ee's rioht of action on a covftiant Ity a surety for the morto'age debt belon^js more properly to the ijeneral law of principal and surety and need not be discussed here at lenoth. Any agreement between the mort<>-agee and the principal debtor whereby the terms of the original con- tract ari' u.aterially altered without the con.sent of the surety will have the effect of discharging the surety unless it is manifest that the alteration of the terni.s is beneficial to him ( /'). Thus a binding agreement made with tiie principal debtor, without the surety's consent, to extend the time for payment operates as a discliarge of the .surety unless the remedies against the siu-ety are expressly reserved (g). If the iiK)rtgagee is aware that one of the covenantors is a siu'ety for the other, although not expressed to be a surety, the mortgagee is affected with all ecpiities in favour of the surety (li). And this is so if the mortgagee becomes aware of the relationship after tlie contract is made ( I). Anrl where in the original contract the two covenantors are principal de))tors but subsecjuently agree as between themselves that one shall be .surety for the other, the creditor is bound from the time he becomes aware of the new relationship to treat the surety as .sueh( j ). (/) XeirUm v. Chorlton (1803) 10 Hare G46. ((]) PolloH V. liuvkcHham [1891] 1 Q.B. '278; Oife» v. Homan (1853) 4 H.L.C. yj)7. (/() Pookij V. Han-adini: (18.')7) 7 E, & B. 431. ((■) HiiUkvw Kjirc (1H412) 9CL & F. 1 ; Liquklat{f):s of Ovcrcnd ,f Co. v. lAqhidittors iif Orirtital FiudvcidI Corponitiou (1874) 7 Ch. 142; 7 H.Jj. 348; Dnucdu'y. Xorlh and ,'<p. Cas. oil). (m) 58 & 09 Vict. c. G, s. ;j[), sub-s. 14. ((,') Harrison v. Oircn (1738) 1 Atk. "lUO; Cou'imr v. (iruii 11S41) 7 M. & W. G;}:i; 18 K.C. 504. Suvety (lischfugt'd if pi'iih'ipal debtor diseliarged. Rule in ManitoVia. Surety may be disc'har{i;ed iiotwitli- standiuie; reservation of ri gilts. :96 RKiHTS AX1> LIAHILJTIES OF THE MORTGAGEE. greatly diininislu'rl in value and worth no more than the amount then due on it, the plaintiffs, with a full knowledge of all the facts, entered into an agreement ^eui with the tlien executors and trustees for an extension of the time for payment of the jirincij^al, which though, providing for a reduction of the rate of intei'est also provided fi l>.'ing compounded, and that the rate was to apply as well before as after maturity. Tlu^ agreement contained a covenant l)y the then executors and trustees to pay the mortgage money, and also a proviso that the exl.ii ion was consented to in as far as the company migiii -jo so without infringing on or in any way afl'ecting the interests of other paities in the mortgaged premises, all rights and I'emedies against any security or securities the company might have against an}- third person or persons upon the original security being reserved. It was held that the agreement to extend the mortgage was in ett'ect a transaction for a new loan on different and more onerous terms, and tliat as between tlu; executors and trustees, as last constituted, and the one who had retired, the relationship of principal and surety was created, and by \ irtue of the agreement notwithstanding the reservation of remedies the surety was discharge(l (o). Where mortgagees sold the mortgaged nremises without notice to a suretj' for part of the debt it was held that they were liable a;; Ijetween themselves and the surety for the full value of the property (p). . {<>) Canada Permanent Loan and Savings Co. v. Ball (1899) 30 Ont. 557. (/)) Martin v. Hall (1878) '25 Gr. 471. I CHAPTER IX. Limitation of Actions for Recovery of Mortgage Moneys. SECTION I. Action on the Covenant. The riglit of tlie mortgag'ee to recover principal and interest in an action on the covenant may be barred by lu^A-.e of time. Where there is no covenant to pay, the action of the mortgagee to recover the amount of the loan will be barred in .six years anvi only six years' arrears of interest can be recovered (a). h\ Ontario under a covenant in a mortgage made before the first day of July, 1894, the action must be commenced within twenty years after the cau.se of action arose {b). If the person entitled to bring the action is an infant or von compos nictitis at the time when the cause of action accrues he may bring the action within twenty years after becoming of age or of sound mind, as the case may be (c). In case the mortgagor is out of Ontario at the time tlie cau.se of action accrues the mortgagee may bring his action within twenty years after tlie return of the mort- gagor to Ontario ((/). Wliere an acknowledgment is made by the person liable or his agent in writing, or by part payment or part .satisfaction, the action may be brought within id) Wilnt V. Letli/m-d (1883) 10 P.K. 182; 21 .lac. I. c. 10; lianics v. (Hen (on [1899] 1 g.B. 88.'). (/>) Act respecting the Limitation of eevtaiii Actions, K.S.O. (1897) c. 7"J, s. 1, sub-x. 1 (b). (-•'( R.S.O. (1897) c. 72, s. .*]. ('/) R.S.O. (1897) c. 72, 8. 5. Where no 1 covenant for 1* payment action barred m SIX years. Mortgages made before Ist July, 1894, twenty years. Absence. Acknowledg- ment by writing or part payment. f^iiS^M !)H RIGHTS AND LIABILITIES OF THE MORTGAGEE. Mortgages made after 1st July, 1894, ten years. twenty years after .such acknowledgment by writing or part payment or part sati.sf action. And if tlie person making the acknowledgment is at the time of making it out of Ontario the action may be brought within twenty years after he has i-eturned (e). Under a covenant for payment in a mortgage made on or after .the first day of July, 1S94, the period of limitation is ten years in each of the cases above Uientioned (/). The provisions of the act above referred to being sections I, 8, 5 and 8 are as follows: — 1. (1) The actions hereinafter mentioned shall be ooramenced within and not after the times respectively hereinafter mentioned, that is to say: (a) Actions for rent, upon an indenture of demise. (b) Actions upon a bond, or other specialty, except upon the covenants contained in any indenture of mortgage made on or after the 1st day of July, 1894. (<■) Actions upon a recognizance, within twenty years after the cause of such actions arose. {(i) Actions upon an award where the submission is not by specialty, (e) Actions for an escape. (/) Actions for money levied on execution, within six years after the cause of such actions arose. (g) Actions for penalties, damages, or sums of money given to the party aggrieved, by any statute, within two years after the cause of such actions arose. {h) Actions upon any covenant contained in any indenture of mortgage, made on or after the 1st day of July, 1894, within ten years after the cause of such actions arose. (2) But nothing herein contained shall extend to any action given by any statute, when the time for bringing the action is by the statute specially limited. 3. In case a person entitled to such action, as aforesaid, is at the time of the cause of action accruing within the age of twenty- one years, or uon romiios mentis, then such person may bring the action, within such time after coming to or being of full age, or of sound memory, as other persons having no such impediment should, according to the jirovisions of this Act, have done. 6. If a person against whom any such cause of action accrues, is at such time out of Ontario, the person entitled to the cause of action may bring the action within such times as are before limited after the return of the .absent person to Ontario. 8. In case an acknowledgment in writing, ^signed by the princi- pal party or his agent, is made by a person liable upon an indenture, specialty or recognizance, or in case an acknowledgment is made by (e) R.li.O. (1897) c. T2, s. 8 (/) R.S.O. (1897) c. 7L', s. 1, sub-s. 1 (h). HAR OF ACTION UN THE COVENANT. !)9 such person by part payment, or "part satisfaction, on account of any principal or interest due on smli indenture, specialty or recognizance, the person entitled may bring an action for the money remaining; unpaid and so acknowledged to be due, within twenty years, or in the cases mentioned in clause (/() of sub-section 1 of sect'on 1, within ten years, after such acknowledgment by writing, or purt payment, or part satisfaction, as aforesaid; or in case tlie person entitled is at the time of the acknowledgment under disability, as aforesaid, or the party making the acknowledgment is, at the time of making the same out of Ontario, then within twenty years, or in the cases afore- said within ten years, after the disability has ceased, as aforesaid, or the party has returned, as the case may be. The correspondino- onactnient in Kiijfljuid is :i & 4 Will. IV. chapter 42. Under the provisions above referred to, the mortgagee may recover in an action on the covenant the twenty years' arrears of interest if his mortgage was made before the first day of July, 1,'fij.''>i' remedy iilivc at^aiiist flUl'PtV. Keceipt of rents by inortKiiirec is not !l piivmeiit by" the niorttjafrov or Ills iiijent. the M-eeipt of the letter takes out letters of administration, is a sufficient aeknowled^niient within tlie statute (^' ). Wher" a suretv for the niortiiaijor has entered into a covenant for payment of the niort<>'aj>;e moneys a part pay- ment ma'ao'or (/). But in I'd.ifitii V. Shiifli ()ii) after the death of one makei- of a joint and several pi'omissory note sio;ned by two, the deceased l)eino- a surety only, a payment by the survivin;^- maker out of his own money's and on his own accoinit wa^ held not to take the case out of the statute. The receijyt of rents by a mort^-ao-ee in possession is not a payment by the mortoa<;()r or any one on his behalf s(j as to keej) ahve the rijifiit of action on the covenant (n). And so a payment of rent by a tenant of the mortgagor to the mortgagee in pursuance of a notice to pay the rent to the moi'tgagee is not a payment by the mortgagor or his agent so as to prevent the debt from being barred (o). A judgment in an administration action or proceeding enures to the benefit of all creditors of the estate and prevents the statute running against them. But it does not prevent the statute running in favour of debtors to the estate {(><>). (j) Robfrtnoti V. nmrill (1895) 2l2 Out. .\\>\>. :!56. (fe) DowUng v. Ford (184;!) 11 M. Cc W. :529. (0 /« re ^Scagcr. Scnfier v. Asto,} (IS')?) ',i -Tur. X.S. 481. (m) (1889) 18 Out. 17H. (n) Cockhurn v. Erhmrds (1881) 18 Ch. D. 449, C. A. {(>) Hm-Jwk y. Ashlnnij (18s-ji 19 ("h. 1). 5.'{9. C. A. {oo) Archvr y. fivveni ( 188G) 12 Ont. GIj; 14 Ont. App. 72:i. T SECTION II. Action to Recover the Money oft of the Land. The limitation of iictions whereby it is wm^'ht to realize the inortijap' inoiieys out of the land is {governed by section 2.S of the Rcul Projti'rfij Liiniftitlon Act { />), whicli is as follows : — 23. No at'tioii or otlier proceeding shiill lie brouglit to rer-over out of any l;ind or rent any sum of money secured by ai. j mortgage or lien, or otherwise charged upon or payable out of such I;>nd or rent, or to recover any legacy, but within ten years next after a present right to receive the same accrued to some person capable of giving a discharge for, or release of the same, unless in the meantime some part of the principal money, or some interest thereon, lias been paid, or some acknowledgment of the right thereto has been given in writing signed by the person by whom the same is payable, or his agent, to the person entitled thereto or his agent; and in such case no action or proceeding shall be brought but within ten years after such pay- ment or acknowledgment, or tlie last of such payments or acknow- ledgments, if more than one was made or given. As to what is a proceeding; within the nieaninj; of this section see Neil v. Almoiid (q). It has been lield in En^-land that tliis section applies to an action to recover the niortf.:;a^e money on the covenant for payment as well as to an action to i-ealize the security out of the land (v). But where an action is broujxlit to reooNt'i' a simple contract debt which is ehar<.fed on land the period of limitation is six years by the provi.sions of the L> uiitation Ad of 1(528, 21 Jac. I. chapter l(j, and that period has not been enlarj^'ed (.s). But the Canadian couits have held that the action on the covenant does not come within section 28 of tlie R<' LIAIilLlTIKS OF THE MORTGAGEE. Part ■ payment may be m;i(lf liy or his iiijtMit or ])urchiiscv of (Miiiity. I';iyiiu'tit l)y principal debtor will keep debt alive against surety. "By the person by whom the saiiu- is , payable or his a.ireut." Payment by a dowress. Payment by purchaser of the equity of reileini'tion. iU'tion or other proceodino- simll be broufjht to recover out oi" ;uiy laiie entitled in remainder (x). So a payment of interest made by a dovvre.ss is sutficient to keep the right of action alive as against others entitled to the estate (//). Likewise a payment made b}' a purcha.ser of the equity ill) For.si/ih V. Jirislowc (1H.)3) SE.vcli. 71G; In re HolUngshead (1888) :!7 ("h. I). ();'>] ; DIhh v. Walker [1S9;J] L' Ch. 429; Lcnhy v. l>c Moleyns (IHliO) 1 I.U. liotl; Trust atnl Loan Co. v. Sterenmn '(1892^ 20 Out. App. t)(i. (/•) (.'liimtcni V. A'mn.v (1S()4) 11 TI.L.C. 115; Harlock v. Ashherr U882) 19 Ch. I), -y.ii); Lciriu v. fflLson (188G) 11 App. Cas. 639; se also III re Hall, Lilleij v. Ford [1899] 2 Ch. 107. («•) Cliliincni V. Fraiiv (18(54) 11 H.L.C. 115; Harlork v. Ashbcrri/ (1S82) 19 CIi. I). .-);i9: see also Lciriii r. iyHnoii (188()) 11 App. Cas. t)39. (.r) lioildaii, V. Moi-lci (1S57) 1 DeG. & .1. 1; Dibb v. ff'alker [1893] 2 Ch. 429. ((/) Amea v. Matiueriiig (1859) 2G Beav. 583. '.V see BAR OF ACTION' TO RECOVER MOXEV OUT OF LAND. I 03 of redemption has been held to be a payment made by an agent of the mortgagor within the meaning of the wection (s). In a mortgage comprising several parcels of land which subsequently pass into different hands, a payment or acknowledgment made by the owner of one of the ecjuities of redemptic^n will keep the right of action alive as against the other owners who have not made any payment or acknowledgment (a.). So a payment made by a recoivei- will keep alive the mortgagee's remedies (h). In an action to I'ealize a charge on land the mortgagee's right to be paid arrears of interest as the price of redemption is restricted to six years' arrears by section 17 of the Rciil Pvirpevty Limitatiov Act (r) which is as follows : — 17. No arrears of rent, or of interest in respect of any sum of money charged upon or payable out of any land or rent, or in respect of any legacy, or any damages in respect of such arrears of rent or interest, shall be recovered by any distress or action, but within six years next after the same respectively has become due, or next after any acknowledgment of the same in writing has been given to the person entitled thereto, or his agent, signed by the person by whom the same was payable, or his agent. The corresponding English enactment is 3 & 4 Will. IV. chapter 27, section 42, which is practically identical with the Ontario act. This section does not relate to actions upon the covenant for payment but only to actions to enforce the charge against the land { 2 Hare 326; Sober v. Kemp (1847) 6 Hare 155; People's Loan and Deposit Co. v. Grant (1890) 18 S.C.R. 262 at p. 278; McMieking v. Gibbons (1897) 24 Out. App. 586; but see Dingle v. Coppen [1899] 1 Ch. 726. (;*) Bolding y.Lave (1863) 1 DeG. J. & 8. 122. (0 (1899) 26 Ont. App. 204; 35 C.L.J. 452. HAli OF ACTION TO RECOVER MONEY OUT OF LAND. 105 pay tlu' amount and to indi-nuiii'y tlu' niort• 1 > Agent need not lie authorized in writing. Subsequent I'atifioation, (j) Anthun) V. Asthimi [1898] '1 Cli. 111. {k) Ford V. Alien (1869) 15 Gr. .565; Edmunds v. Wanqh (1866) L.R. 1 Eq. 418. (/) McMicUng v. Giblons (1897) 24 Out. App. 586. (w) Coles V. Treenthiek (1804) 9 Ves. 234. (n) Thome V.Heard [1895] A.C. 495. (o) Jones V. liright (1829) 5 Bing. 53:5. IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I l~l^ 12.5 1^ 1^ 12.2 s itf IIIIIM 111^ 11.25 IIIIII.4 ill 1.6 V] >> 7 z;^ Photographic Sciences Corporation 73 WIST MAIN STRUT WEBSTER, N.Y. MStO (716)872-4503 fA 100 RHiHTS ANI» LIAItlLlTIES OF THE MOUT(iA<;EE. Ackiiow- led(;ui)>iit under soctioii 17 nmy ln' made at unv tiiiif. Six yi'iiis' liniitatioii does not apply a^uihht subse«|nent nioitf;a(^oe whcrt' jirioi' nnnti^ii^jec in posses- sion. It will he obsfivod that section 17 does not provide for jin jicknowh'djjnient hy part payment. The words " in the meantime " contained in sectiotJ 28 do not occur in section 17. So it would seem that an ixknowledifnient jjiven at any time even after the expiration of six years would he sutHcient under section 17, provided the action is hrouj^ht within six years aftei- the acknow- h'dijment (/>). The limitation of six years' arrears does not apply as apiinst a suhsequcnt mortjjajjee where a prior mortjfajjee has hft'U in possession within one year next before action l)rou<;ht hy the f(jrmer. In such a case the sub8e) Holding v. Lane (1863) 1 DeG. .1. tV 8. 1". (7) K.S.O. (1897) c. \X\. CHAITKR X. Intkuest. i. Iiitrrcxt (ii'iifVidlii. iriL.'ifst on a iiioitxa«;e thouijli payiihlr at fixed tiiin's is ). Where interest is i)ayable it is charjjeahle on tlu- whole ontstandin*; principal unless otherwise expressly provided. And where a niort}^a«je contained a covenant to pay the principal sum in ei»;ht equal ainnial instalments, " with interest on the principal sum remaininj; dut; at each payment ", it was held that interest must he paid with each instalment on the whole principal money unpaid, thoujjh it mij::ht not be then payable, and not on the instalment only (( ). A mort^iajjee is entitled to char»»;e interest upon all smns which by ajjjreement express or implied he is authorized to add to his .security, such as moneys paid ui)Oti prior incumbrances or for improvements, insurance premiums or taxes (hse»|nent to that appointed for redemption. 'I'htis in Ti'KKt iiihI Lofiii (o. v. Kid- (/) interest TluH is provided for by the Art rfspi'rfinjj hifci'CMt {j ). Section 1 of that act is as follows : — 1. Kxcept as otherwise provided l»y this or by any otiier Act of tlie larliiiment of Canada, any person may stipulate for, allow and exact, on any contract or agreement whatsoever, any rate of interest or dis- count which is agreed upon (A.). Wherever interest is payable but no rate is fixed six Six per cent. , i. 1 J • allowed per cent, may be recovered. Section 2 ot the Art rmpovthnij where no IvtrreM is as follows :— JJ**" '»*^''"*"* 2. Whenever interest is payable by the agreement of parties or by law, and no rate is fixed by such agreement or by law, the rate of interest shall be six per centum per annum. Under niort*;ai;es made after the 1st . 138; The Pcople^s Loan ami Deposit Company v. Grant (1890) 18 S.C.R. 262; Manitoba and Xortli- fVest Loan Co. v. Jiarker (1892) 8 Man. K. 296; Cunningham v. Hamilton (1897) 5 B.C.R. 539; Hanford v. Howard (1897) 1 N.B. Eq. 241. (.v) Cook V. Fowler (1874) h.lt. 7 H.L. 27; In re Hoherts (1880) 14 Ch. D. 49. (/) mison V. Caniphell (1879) 8 P.R. 154; Manitoba and North- IFesI Loan Co. v. Jiarker (1892) 8 Msin. R. 296. (m) St. John V. Iti/kcrt (1884) 10 8.C.R. 278; Archhold v. The Build- ing atul Loan Assoeiation (1888) 15 Ont. 237; Powell v. Peck (1888) 15 Ont. App. 138; People's Loan and Deposit Co. v. Grant (1890) 18 H.C.R. 262; Freehold Loan Co. v. MeLean (1891) 8 Man. R. 116. (f) (1882) 22 Ch. D. 98. (lo) See alHO King v. Grcenhill (1843) 6 M. & G. 59. No iniplit'il agreement to pay interest after default »t same rate; even if actually paid at that rate. Xo implied I'ontrat't to pay interest on interest after maturity. Interest payable on principal ''until paid" does not mean interest after default Form of proviso. 8 «» 5 112 RIGHTS AND hIAIJILITIES OF THE MORTGAGEE. hand Tillfr* Act. iin|)li<-il cov«'iiiiiit to pftv interest after ilt-fuijlt at «anu' i »te. Interest may be allowed after default although no eontract therefor. luterest after default payable as ■dainages. it is UHtiul to iiiHort a elaU.su after the j)r()viso for payinunt dearly exi)re.s,sin<; the a«;reeinent. The following; form of provi.so may be used: — - " I'rovided that interest at the rate aforesaid shall eontinuo to be imyable during the continuance of this security yearly (or half-yearly) on the day of in each year on the said principal sum in case the same or any part thereof shall remain unpaid after the time lixed by these presents for payment thereof." Where a charge on land i.s created under the Land Titlrs Art there is an itnplied covenant that if the principal Sinn or any part thereof .shall remain unpaid at the appointed time intere.st .shall be paid half-yearly at the appointed rate on so much of the principal sum aw for the tinie being .shall remain unpaid (.f) Where the mortgage contract doe.s not provide for the payment of interest after maturity of the mortgage moneys, interest may nevertheless be allowed by virtue of the Ontario Jiulicatare Act{y). Intere.st in such cases will be allowed only on the overdue principal and not on the overdue intere.st (;). Intere.st will be aHKT(JA< JKK. eovonniit oil Hiime footing. ratf of interi'st in all t'lises where interoHt is recoverable, and where by the contract a rate 1h not exprennly Htipulatcd for, at «» per I'ent. per annum. The words of thin enactment are clear : ' Whenever interest in payable by agreement of the parties or by law, and no rate is tixed by such agreement or by law, the rate of interest shall lie six per cent, per annum.' It follows that interest recoverable by way of damages in this country cannot exceed a yearly rate of six per cent." This (leci.sion has boon followiMl in Hc'vt'ml siihst(|u«'iit CllSCfS ( / ). As ri't^anls tlic rati' to be allowed for dama^os after •lefault there is no distinction between actions for fore- The A<'tions of foreclosure and re'"<*• the inort^ajfee liad recovere). Where a mort<;aj((^ providi'd for payment of tlu' wholt of the principal money in two years, with interest half yearly at nine per centum per annum, and also provide•) Nicholls V. Matinard (1747) :j Atk. 519: 18 B.C. 141; K.S.C (1886) e. 127, 8. 5. lUi RKiHTs ANIi IJAIllMTIKs ttV TMK .MoUTrt<;ii^'fH niiKlf iihw tlw Ist (\ny of July, IMHO, it may Ix- ,stii)ulut»'<| uikUt .sfction ") of tin* Ari lU'spi'iiing Jtitcrt'Ht («) tliat iiit»*r»'.st shall !«• t'liai<;»'(l on arn^ars of j»rincij)al, ImU not at an increascrl ratf. Tlu' act provides as follows : - 6. No fine or |n'iiiilty or mt«' of interest Hhall be Htipulated for, I liken, reHerved or exacted on nny nrrenr of prinoipiil or interest j*ecured by niortpijje of real estate, wiiicli nas tin- elTeet of increnHing tile cl«ir(?e on any sucii arrear beyond tiie rate of interest payable on principal money not in arrear; Imt nothing in tliis Heetion contained shall liave the effect of prohibiting a contract for the payment of inti-rewt on nrrearw of iutercHt or principal at any rate not greater than the rate jmyabie on )>rincipal money not in arrear (t) . 6. If any sum is ]>aid on account of aiiy intereMt, tine or penalty ii.:t chargeable, payable or recoverable under the three Hectionn next preceding, such sums may be recovered back, or deducted from any other interest, fine or i>enalty chargeable, payable or recoverable on the principal (ii). But a nt'w l)ari;ain may Ik* matlf that an increased rate, of interest shall he payable in consideration of forbearance or the like. A bargain for e.vtra interest marie between a derivative inortj^aj^ee and the oritfinal mort«;at;or inures to the benefit of the ori»^inal mortijatjee (/•). In one case a written promise by a mortjjaijor made after default to allow more tlian si.\ per centum, the rate reserved by the mortgage, was held binding, although there did not appear by the Avi'iting to have b»M'n any consideration of forbearance or otherwise for the promise (ir). But a parol agreement to a) GnihoHie V. Aiidt-rson (1808) 1,') Gr. 180. (w) Brown v. Deacon (1800) 12 Gr. 198. '). But in KnghuKl a stipulation whereby the rate of interest is increased in default of payment is regarded as in tlie nature of a penalty against which e«piity will grant relief (/>). A stipulation, h(jwevt'r, jn-oviding that a lowei- rate Bargaiu than tiie rate reserved will be acc<'pted if paid punctually J.^^^^ if paid i.s goo«i'i« V. Thomas (18:30) 1 R. & M. .-)06. IIS UKiUrs AND IJAIflLlTIES OF THE MOKTOAGEE. ("0111|iOUIl(l itite'rt'st lH)t ;illow»'il UtilfSN stiimhiti'd for. of mortffapc not entitled to interest on interest paid l)y him. Hiib^i'ijueiit mortj^agee payitiir ott" prior nio-tiT'iijee. |iiiii>'ty a right to look to the insurance money in lieu of the Ioks. property for the satisfaction of the mortgage debt. Tlie mortgagee's insurable interest is co-extensive with his Insurable mortgage debt. In Citsftlhriii v. Prr.ston( f) Bowen, L. .1 „ioitgjige«'. said : — " The contract of insurance contained in a * * * * fire policy is a contract of indemnity and indemnity only, and the insured, in case of a loss against which the policy has been made, shall be fully indemnified but shall never be more than fully indemnified." (c) 8. 28. (d) r.lwa- V. lilnck {17fi3) 1 Wni. Bl. 390; 3 Burr. 1394. (<•) Parsam v. Qwcn Insurance Co. (187H) 29 U.C.C.P. 188 at p. 211 ; appealed to Privy Council but on another point 7 App. Cas. 96. (/) (1883) 11 Q.B.I). 3K0. 9 122 lUians AND LIAIULITIES OF THE MORTGA'JEE. > X MortKiifrei' iiisuiiuff on his own nc'couiit. The instiniiice coiitnict. Mortgagor continues to l)e the insureil not - It has been decided in New Brunswick that the interest of the niortpis^ee as snch ends on foreclosure absolute, and tliat if a loss occin- tliereafter the mortgagee cannot recover cm a policy isstuid to him as mortgagee ((j). U a mortgagee insure the mortgaged property out of his own funds without having any right under the mortgage deed or otherwise to recover the premium from the mortiraifor, then the insurance is for the benefit of the mortgagee alone, and in the event of loss he is entitled to receive the amount of the policy without giving credit therefor upon the mortgage {h). The insurance is generally effected in the name of the mortgag(jr, and a clause is inserted in the policy providing that the loss, if any, shall be payable to the mortgagee as his interest may appear. Where by the terms of the policy the mortgagor is the iustned, the contract being between him and the insurer, insured not- .^,j,j ^\^^, policy contains a clause by which the moneys are withstiuidiiifi: I J J ^ loss itnyft))U' maile payable to the mortgagee in the event of loss, this mortfficee *'^*^''^ "*^^ create an insurance of the mortgagee's interest so as to enable him to recover upon the policy as an insurance C(3ntract with him, but it is a mere appointment of the mortgagee to receive the monej's, and a direction and authority to the insurers to pay r.im instead of the mortgagor (i). Notwithstanding the insertion of this clause the mortgagor continues to be the insured, and a subsequent breach by the mortgagor of the conditions of the policy, as ^ for instance liy assigning the property without the consent {g) Gankiii v. /Vi«'»(/.i- Iitsurance Co. (18G6) G All. (New Bruns.) 429. (/() Kiisnell V. Robertmn (1859) 1 Chy. Ch. 72; Dohson v. Land (18r)0) S Hare 210; Kiwj v. State Mutual Fire Ins. Co. (1851) G Mass. 1. (/) Crimvcnur v. Atlantic Fire Ins. Co. of lirookli/n (1858) 17 N.V. :!91; Continental Ins. Co. v. Hulman 4- Cox (1879) 92 111. 145; Franklin Sarinfjs Institution v. Central Mutual Fire Ins. Co. (187G) 119 Mass. 240; lirunswick Snvin(fs Institution v. Commercial Union Ins. Co, (1878) G8 Me. 313; Martin v. Franklin Fire Ins. Co. (1875) 38 N.J.L.R. 140; Tallman v. Atlantic Fire .)• Marine Ins. Co. (1865) 29 How. 71 ; Living- stone V. Western Ins. Co. (1869) 16 Gr. 9: Mitchell v. City of London Ass. Co. (1888) 15 Ont. App. 262. FIRE INSUKAXCE. 123 of the insunu', will make it void as against both inort- *;a<;oi' and morttjatjee (j). In C< I Idwf'il \\ St. (/,•), Wlio may .... , . !• <• • sue i'l such the action was by a niort«j;at>or upon a policy ot insmance p„j,p under seal which contained a provision that the loss siiould be payable to the inorttjaijee, and it was held by the Supreme Court that the action was properly broutjht by tht; mortcjao-or. The court, however, was not dealin*;' with the e(|uitable rights of the mortojaoee under a covenant to insure, a subject which will be adverted to presently, but only with the objection of the insurers that the action should have been brou<;ht by the mortt(aveen the mortyaijor who effected tlie insurance and the mortgagee. In a Nova Scotia case a policy not under .seal contained the following provision : — " Loss, if any, payable to tlie order of Peter Bru.sh, if claime«l within sixty days after proof, his interest therein l)eing as mortgagee : " and it appearing that the policy was obtained V)y the mortgagor in pursuance of a covenant entered into l)y him with Brush, that he .should insure in the name ami for the benefit of t (i) LiviiKjstOHC V. H'c.sterii Ass. Co. (18(58) 14 Gr. 401; in aiipeal Hi Gr. 9; Chishom v. The Proriucial Ins. Co. (18G9) 20 U.C.C.P. 11; Mih'hell V. Citi/ ofLomhm Ass. Co. (1888) 15 Ont. App. 2t;2. (k) (1883) 11 S.C.K. 212: see McQnicu v. I'liwiiir Mutual Fiir his. Co. (1880) 4 S.C.K. (5G0. (/) (1888) 12 Out. 70(i; 1". Out. App. 2fi2. •24 UKJHTS AND IJAIULITIES OF THE M(HtT(JAGEE. KiTi-t nf cdViliiDlt to iiisii' c. SL Iiisuvaiice cannot he ciinocllfd witliout uotit-e to instiif-d. Moi'lfjMfjor not estopi)ecl by settle- ment under mortgagee's policy. Consent not reciuired to assignment of policy not aecnnipnnied I'v fi'iin>^f*er iif p)'o)i»ity. Biiish, it was lu'ld that the inortt^agee was cntitlofl U» sue on the policy in his own name (r/i). Hut whei't' the n»ort) K.y.O. (1897) e. 203, s. 168, sub-s. 19. {p) Morrow v. Lancmhire Ins, Co. (1898) 29 Ont. 377. (7) I'rittif V. Connecticut Fire Itis. Co. (1896) 23 Ont. App. 44'J. (/•) Insurance Act R.S.O. (1897) c. 203, s. 168. »^ FIRE INSURANCE. i i i This, however, applies only to an aHHii^nnient of the property and not to an a.sHii- ject to the conditions of the above mortgage clause. The otibct ot" tlu! inortiraiie clausti was ftillv C()nsi(k'iv'atje(.'s, and subject to a mit the mortgagor for certain reasons alleged by them had forfeited any claim under the policy, that they notwithstanding that no liability existed on their part to the mortgagor haKT(JAOEK. Keoovcty of viiliic <>r ifliiftiicn 1'eiionrn'fd, Siihi'ocjntion where insiiraiiee wholly for heiiefit of mortgagee. a.s.sicrnee.s ol" ji polity crtt'ctrd with tlu' iiiortijuj^or ; aiul that thf payiiiL'iit to the iiiort<;a^fees discharijud the iuoit<;ao;('. It was held, also, that tlu' insuranc*^ company w«M(' not JustiHcil in payiiit; the njort^jaiffos without first contcstini; their liability to the niortt^aj^or and estal)lishin4{ their indennuty from lialMlity to him. The mortsraiit! clause does not effect a new insurance in l;i\()ur of the mortijaijee. The insurer thereby at;ree.s with the morti;aj;ee that to the extent of his interest the iuHurance w ill not be invalidated l)y future act or negligence of the mortgagor, but the insurer is not debarred from setting up that the insuranet? was procured by fraud and therefore void (lb initio (;/')• An insurer entitled to subrogation may recover from the insured not only the amount of any compensation or the value of any benefit received by the assured in excess of his actual loss, but also the full value of any rights or remedies against third persons which have been renounced by the assured and to wliicli, but for. such renunciation, the insurer would have been entitled to be subrogated (x). If a mortgagee effects an insurance on his own account without having any riglit either by express contract or by statute to recover the premium from the mortgagor, the mortgagor has no claim on the proceeds of tlie policy, but the insurance company, it would seem, is entitled to the benefit of the mortgagee's security upon paying tlie loss ; and conversely if the mortgagee is paid by the mortgagor after loss, the mortgagee cannot recover on the policy. And if after payment of the policy the mortgagee recovers, whether by suit or otherwise, the mortgage debt, he must refund to the insurance company so much of his total receipts from both mortgagor and insurance company as is (if) Omnium Securities Co, v. Canada Fire and Mutual Ins. Co. (1882) 1 Ont. 494. (j) U'cit of Enqland Fire /wv. Co. v. fsaacs [1896] 2 Q.B. .177; [1897] 1 Q.B. 22G. KIKK INsrUANt'K. I2f» section. in excess of his actual loss ]ty the tire (//). But «'here can be no such thinjij as suhrojjatiou to the fi^ht of a :nortj;agee whose chiim is not wholly satisfied (c). By the Art n'xjwHlnfr }f(tyt(f), an«l was ba.sed on ^*'^' '""' tlie provi.sions of the foijx'vidi Coitvcymtvituj and Law of Property Act, /-V,S7, 44 and 45 Vict., chapter 41 {c). Before this enactment there was no implied agreement Effect of between the mortgagor and the mortgage*' that insurance moneys when receivtid by the mortgagee should be applied in li((uidation of the mortgage debt. 'i'he mortgagor might have stipulated that the moneys .should be applied towards payment of the debt or in restoration of the prijinises ; but in the absence ri;riijr«'<' in M-HpCCt of iiiwiiriiiKM' moficys I'cccivcil liy iiiiiy liolil illMll'IIIH'f inoiicyH recf'ivi'il liy IlilllHcll' IIS collutt'l'lll scciii'it V. 'n>(!H«' j)r()\i.si()ii.s Mere iiit<'iii Jiot houml to aj)])ly it towards j)ayiiient of either principal or interest overdue {(Id). \w Kilmoiuls v. HiDil ilfoii l^i'di'lilfiil iliiil fjixlll Snclrli/ (f) Osier, J.A.. said : — "Now t'lP act (lops not jn-ofeHS to intfvtVve witli any ripjlit the mortgnpH'- nad tlicrt'tofore poHSPHsed to deal with the proeeeds of the jiolicv tvhen tlie nioitt^afje money was overdue. He was not compelled to .pply it at all, or if he did ai>ply it he might apply it in such a way a« to preKerve the full benefit of his contraet. Tlie new right or option which is given to him must 1 think l)e considered as one con- trolling any right which the mortgagor mij^ht otherwise have had to direct the disposition of the insurance received by oi- paid into the hands of the mortgiigee l)efore the mortgage debt becomes due. In effect the option given by the section is either to have the money applied in rebuilding or to have it at once apjtlied in reducing the debt secured by the mortgage. If the latter option is not exercised the money remains in the mortgagee's hands (in those cases in which he has had, apart from the statute, the right to receive it) as It would have done before the act, and subject to whatever rights or interests the parties by law resjiectively had therein, and intt:)- alia to the right of the mortgagee to make such application of it as he might deem proper to the payment either of principal or of interest, or of both, {(Id) Edmonds v. Hamiliou Provident and Loan Socivtji (1891) 18 Ont. App. ;147, reversing the judgment of the Queen's Bench Division on this point, 19 Ont. 077, and disapproving of Corhmn v. KinffsOni (1889) 17 Ont. 432, in so far as it was thereby decided that the mort- gagee was bound to apply the insurance money on principal and interest as they matured; AnfftiH v. Stonj (186;{) 10 Gr. 306; (ircni V. y/cicer (1871) 21 U.C.C.P. 531; Coeklnini v. FUvnrds (1881) IK Ch. D. 449. iv) (1891) 18 Ont. App. 347 at p. 357. •1 i; ' KIHK INSI'KAN«E. .•!! overdue, or to ninke no iipplication of it. if he siiouid dui'in it nioii' iidvixiible for th« Hi't-uiity of IiIh contract not to adopt that t'oursc, hut to re(|iiiri' t\w tnortKagor to nuike liiH paynitMitH in acoordaiii't' witii hiH covenantB." MiU'h'niiiin, J. A. siiid (/): — *' He may kct'p the insnramro money by him and h\u> for arrears, or distrain for them, if he lias that power, or iie may at his option apply the wlioh' e added that a uiort>,'a«ee retaining,' insurance money in "his hands as security for future payments is accountable for any profit he makes with it, and that he oiuht not to leave it lyinj? idle, but ou^ht, if possible, to concur with the mort>,'a>^or in some profitable way of laying it out." If tlic Jiioit^'a^ff loeeiveH the iiiHumiiw tnonoy bct'oic tlu' time ii])j)oint('(l for payineiit of the money Hcetuvd hv -M<)rtf,'!i>.'ee entitled to interest not- tlio n»oi't<>ao-c lie in entitled, nevertheless, to the interest withstanding withont al,aten.ent (,/). ^^ moneys. (f) ICilmint<(.s V. llaniilloii Proridail mid Liiiiii Sodrli/ (189]) IS Out. App. ;i47 at p. 'Mu. () Qiuirrell v. licekford (181(5) 1 Mndd. 2(59. (c) Burt, Jinnltoii .?• Hai/wfinl v. liiif} [ISO;')] 1 (^.H. 27G: 18 U.C. 4(52. (tt) III ir ruivsilK (ialUimJ v. liiu-lou (lH8ri) :!0 ("li. I». 2:^1. RECEIVER. I 88 security is scanty or not ; und he need not nuikc a prior niortgaoci' wlio lias tlie Icoal estate a party to the action (c). The court will not, as a general rule, appoint a receiver on the application ot" a Hubse<[uent niort<;'agee it' the first mortj-uiijee is in possession (/). But it" the first niort<4'agee is not in possession a rtjci'iver may be appointed on the application of a subsecpient niortga^jee, subject to the rights oi' the p' ior njortgagee (//). Where a prior mort- gagee in possession has acipiired the equity of redemption and it is shown that he has received more than sufficient to pay off" his mortgage, a receiver may be appointed (It). Formerly the court would not appoint a receiver on the application ot" a mortgagee having the legal estate, but left him to his legal remedy to obtain possession (i). But now under sub-section !) of section 58 of the Ontario J vd'u-dturc Art {j), a receiver may be appointed in all cases in which it shall -'I'^pear to the court to b(> just or convenient that such order should be made. A mortgagee wIkj ha.s the legal estate even if he has taken possession may apply to have a receiver appointed, but it nnist be shown that it will bo just or convenient to make the appointment {k). But a mortgagee who has taken possession cannot have a receiver appointcni merely to relieve himself of the responsibility of a mortgagee in possession (/.). A receiver will usually be appointed on an interhjcutory application if the interest is in arrear or if tlu^ property (v) Aikiitsy. Hhiin (18()7) 1:5 Gr. ()4(i. (/) livrncii V. SewcU (IS'JO) 1 J. & W. 647. (g) Bn-ncy v. Scirell (1820) 1 .1. & W. 047. (/i) .S<(;/«/(«/v. /^wn( (18(55) 11 Gr. 114. (0 nenu'!/ V. Scircll (1820) 1 J. & W. ()47; Kciscii v. h'elsey (1874) L.R. 17 P:q. 4*)."). (j) K.S.O. (1897) c. ol. [k) Tillelt V. \i.ron (1883) 25 Cli. J). 238; Coinili/ of Gloucester Bank V. Rudrij .yr. VoUierij Co. [18<)5] ] Ch. ()29. (/) Re Pnitlicirh, I'rulhercli v. (fillidms (1889) 42 Cli. D. .'.90. First mort- gagee iu possession. Mortgagee having the legal estate. Mortgagee in posHessior. luterlocu- tory application. I 3 s ;i4 KKiHTS AND LIAIiJLITIES OK THE MOKTOAGEE. Mortfjagoi' refusing to give up possession. Right to nominate receiver. would bo ill (lauger if left in the poHsession of the inoi-ttja«jor (in), or if the title to the land is in dispute (n). WMiere the Hioi'ttiaf>oi' prevents the moii^jagee from takint; possession of the propert}' a receiver may be appointed on an interlocutory application (o). The ricfht to propose a person as receiver belon<(s ^;enerally to the niortgaoee applyino- to have the appoint- ment made. A party to the action will not usually be appointed receiver ; if appointed he will not be allowed a salary ( j)). The .solicitor for the mortgaoee will not be appointed receiver even with the mortgaoor's consent, as it is his duty to be a check on the receiver (V/). (m) Evans v. Coccntrii (1854) 3 DeG. M. & G. 911. in) liarrii v. Keen (1882) 51 L.J. Ch. 912. (o) Tntmun .f Co. v. Redgrave (1881) 18 Ch. I). 547. {j)) Surgaut v. Read (1876) 1 Ch. D. 600. (7) Th re Lhnjd. Alien v. Lloijd (1879) 12 Ch. I). 447. CHAPTER XITL Fixtures. Fixtures ai'i' chattels wliicli were originally movable Definition of but wliicli havintr been attached to the land have ceased to be movable and have become part of tlie freehold. Anythino- imbedded in the soil or attached to any perman- ent building- or erection by cement, bolts, nails or other fastenings, so as not to be movable without the exercise of force is, in general, a fixture (o). So whatever is substant- ially part of a house, mill or other building so that it cannot be removed without depriving the building of what was intended to be used with it, will be deemed a fix- ture (/>). Tlu' " fixtures "' included in the meaning of the expres- Nova Seotia , „ , . , ,^ (. , 1 -vT CI i." Bills of Hale sion "personal chattels b}'^ section 10 or the JNova hcotia Act. Act for the Prevention of Fr(iu) are only such articles as are not made a permanent j)ortion of the land and may be passed from , hand to hand without reference to or in any way affecting the land, and the "delivery " referred to in the same clause means only such delivery as can be made without a tres- pass or a tortious act. An instrument conveying an interest in lands and also fixtures thereon does not require t. mortgagee on the execution of a luortgage of leaseholds or iuortg4ij.« »■. freeholds although not expressly mentioned therein : and even chattels only slightly affixed have been held to pass(/): and th(^ mortgagee may restrain their removal, or recover their value if removed without his consent (»i). Tf I'c- moved no title passes even to an innocent piu'chaser, and the (/t) Hagffart v. Town of limniplon (1897) 28 S.C.R. 174. (t) Mihts V. Ankntell (1898) 25 Ont. Apj). 458; see also Tiinirr v. Melbanc (1892) 28 C.L.J. :J24. (j) Don V. Warver (1896) 28 N.S.R. 202, mb mm. Warner v. />«//, 26 S.C.R. ;{88. (/<•) liiuxm V. Jiiec Lewis .)f- ,Soii (1897) 133 C.L..I. G80. (I) Hare. v. Hortnn (18;J3) 5 B. & Ad. 715; Holland v. //o■: '-, ar>d the mortgagee afterwards entered into • ji^ci '■•:■ ..it was held that the mortgagee was not entitled .1 tin- i; ■ i';os as against the tenant (.s"). (n) Scolusii American lu vestment Co. v. Scxtnii (1894) 26 Out. 77; Dickso)! V. Hunter (1881) 29 Gr. 7:5. {(>) Vlimie V. fVnod (1868) L.R. ;{ Ex. 2r)7; L.R. 4 Ex. .'{28; Meiu- V. Jacobs (187.')) L.R. 7 H.L. 481; Holmm v. Gorrhxje [1897] I Ch. 1S2; IHckson v. Hunter (1881) 29 Gr. 73. ()>) Cordon v. Johnston (1868) 14 Gr. 402. {«/) Mcjiers v. Smith (1869) lii Gr. 616. (»•) Carson v. Simpson (1894) 2;') Out. 385; nee Ko(/crs v. Ontario Hani: (1891) 21 Ont. 416. (.S-) Sanders v. Daris (188')) U Q.B.D. 218; see also If'ninislcii v. Milne (]8,i9) 7 C.B.N.S. lir>. FIXTURES. l:{!t A mort^aj^o of lands docH not require registration as a chattel mortgage as to Hxtiu-es on the land, even although the fixtures are rei't^rred to as cliattels in the mort- gage (0- A gas engine was let out on tiie liire and purchase system under an agreement in writing which provided that it shotdd not become the property of the hirer until payment of all the instalments and should be removable by the owner on default ir. payment of any instalment. The engine was affixed to freehold land of the hirer by bolts and screws to prexent it from rocking and was used by him for the purposes of his trade. Default having been made in payment the engine was claimed by the owner and also b}'^ a mortgagee of the land who took his mortgage after the hiring agreement and without notice of it, and entered into possession while the engine was still on tlu; land. It was held that the engine was sufficiently annexed to the land to become a fixture, and that any intention to be inferred from the terms of the hiring agreement that it should remain a chattel did not prevent it from becoming a fixture, and that consecjuently it passed to the mortgagee as part of the freehold. It was further held that even if a license to remove the engine could be implied from the mortgagee's leaving the mortgagor in possession, the entry of the mortgagee into possession determined such license (u). But it would appear tliat the owners of machinery who let it out under a hire and purcliase agreement are entitled to remove it before the mortgagee takes posses- sion (v). (t) KitehiiKj V. Hick\^ (1884) (i Ont, 739; Itobiit.soii v. Coal: (1884) (i Ont. 590. (u) Hohnou V. dorrivffc [1897] 1 Ch. 182; see also (loiu/h v. fVood [1894] 1 Q.B. 713; Cumbcrlaiise(iuent i)urchuser or mortgagee as aforesaid, unless it is evidenced in writing signed by the Vtailee or his agent. Section 2 provides as follows :— 2. The prL'ceding section shall not apply to houseliold furniture, other than pianos, organs or other musical instruments; nor shall it apply to any chattels mcTitioned in any such receipt note, hire receipt, order or other instrument where the manufacturer, bailor or vendor within ten days from the executioji of the receipt note, hire receipt, order or other instrument evidencing the bailment or conditional sale given to secure the purchase money or a part thereof, shall file with the clerk of the County Court of the county in which the l)ailee or conditional purchaser resided at the time of the bailment or condi- tional purchase, a copy of the said receipt note, hire receipt, order or other instrument evidencing the bailment or conditional sale (.r) . Section 1 provides as follows : — Chattels (l) Where any goods or chattels subject to the provisions of this aflixed to Act are afiixed to any realty without the consent in writing of the realty with- owner of the goods or chattels, such goods and chattels shall not- out consent withstanding remain so subject, but the owner of such realty, or any of owner. purchaser, or any mortgagee, or other incumbrancer on such realty, shall have the right as against the manufacturer, bailor or vendor of such goods or chattels, or any person claiming through or under them, to retain the said goods and chattels upon payment of the amount due and owing thereon. (2) The provisions of this section are to be deemed retroactive, and shall apply to i)ast as well as to future transactions (//). [w) K.S.O. (lHi)7) c. 149, {x) R,S,0. (1897) e. 149. (//) R.S,0. (1897) c. 149. CHAPTER XIV Rights and Liabilities of Mortgagee ix Possession. A inortgaoft' as between himself and tht; niortoauor is entitled, it' the mortgage deed contains a proviso for (juiet enjoyment, as soon as any default is made in payment of principal or interest, or if there be no such proviso, then upon or at any time after the execution of the mortgage, to enter into possession of the land, or if tlie land be in lease or in the occupation of tenants, to give them notice to pay tlie rents to him and to receixc the I'ents accord- ingly (a). Where the relation of landlord and tejiant has been created between the mortgagor and mortgagee by means of an attornment clause in the mortgage deed a mortgagee will be deemed a mortgagee in possession and will be liable to account as such to a sxibsequent incumbrancer (/>). A mortgagee from whom the mortgagor has accepted a lease of the mortgaged prennses will not be permitted at the expiration of the term to proceed against the mort- gagor as an overholding tenant (r). In Manitoba it has been held that a mortgagee is not entitled to possession of lands as against a railway com- pany expropriating the lands under legislative power, but is restricted to his claim for compensation (fl). entitled to l)ossesHioii OTi execution of niortgnp;e ill abHenceof stipulation to the contrai'v. Mllect of iittornnient cliiiise : inoi'tguKe*' in ])ossession. l\l()i'tf;:itfj;oi- jis ovfi'holdintr tcnsmt. MortKiifjef not entitled to possession of lands e.Ni)ro|>i'iated K, i 3 I. I I (a) Moss V. Gallimorc (1779) Doug. 279; 18 R.C. 40.'5; Kccch v. Hall (1779) Doug. 21; Mnorc v. Shelleif (1883) 8 App. Cas. 285; Doe (I. Mowaf v. Smith (1851) 8 U.C.R. 139; Jhinn v. Miller (1873) :: N.S.D. 347; liurnham v. Watts (1844) 2 Kerr (New Bruns.) 441. (6) In re Stockton Iron Furnace Co. (1879) 10 Ch. D. 335; Ex parte Ptmnett (1880) 16 Ch. D. 235; Ex parte Harrison (1881) 18 Ch. D. 127, at p. 135, but Bacon V.-C. in Stanley v. Grundy (1883) 22 Ch. D. 478 decided otherwise. (c) In re Reeve (1867) 4 P.K. 27; see R.S.O. (1897) c. 171; but see Itaubuz V. Lavington (1884) 13 Q.B.D. 347. (^0 Manitoba Mortgage and Investment Co. v. Canadian Pacific Rait- way Co. (1884) 1 Man.'K. 285. 142 ItKiins AND IJAitll.l'I'IKS (»K llll-; MOHT(i AUKK. liiihle ill >rt;,'!iKi'<' tiijiy liriiiy: iictioii I'm' |iosscssi(iii. KifXlits of Slli)SfC|UCIll tiinrtiriitri'i's. Wliere I'eeeivcr iipi)oiiit,t'(l hy the foiii't . _ It is usual to iiisci't in the uiort^ajje contract a proviso tliat tlu' iuort<;a|j()r tiiay retain possession until default, in {'Use there is such a proviso the niort>jaif(!e will l)e liable in (lania^^'s if he take possession lu'fore default has l^een nuid(! (t). If the inortifat^'ee takes possession the iuortj;aoor may rc<|ci'ni without i;iviny notice or payin<; interest in lieu of notice (/'). If default has been made a morttja<;ee may take pos- sessi(jn if he does so peaceably, without jjivin^ notice oi' serving a dcnuund of possession {//)'• and in order to gain an entrance he may break open an outer door of a house in case it is unoccupied or has been vacated {g). If entry })(! resisted by any person in |)Ossession the mortgagee may l>ring an action to recover possession ; and if the mortgage contains an attornment clause whereby the mortgagor becomes tenant to the mortgagee the action may be main- tained although no notic(! to tpiit has been given, and although the mortgagee may have distrained for rent (h). Possession of the mortgaged lands can be recovered only by a mortgagee having the legal estate. If a puisne mortgagee take possession his rights are subject to the* rights of the })rior mortgagee. But a puisne mortgagee may recpiire the j)rior mortgagee to pay him the surplus I'ents and profits and may obtain the appointment of a receiver, if a prior mortgagee is not in possession, subject to the prior mortgagee's right to po.ssession whenever hi; may assert it ( /). But where a receiver has been appointed by the court on tlie application of a subsequent mortgagee, {(') Miwrc V. Shelley (1883) S App. Cas. 285. (/) liovUl V. Endle [1896] I Ch. 648. (/) Doe (/. Fisher v. Giles (1829) 5 Bing. 421. ((/) Lows V. Telford (1876) 1 Apj). Cns. 414: Doe d. Rn/nut v. (hinard (1843) 2 Kerr (New Bruns.) 193. (/() Doe d. (iarrod v. Olley (1840) 12 A. & E. 481. (,/) Porlerw Calcrnft (1821) (» Madd. 11. M()RT«A(iKE IX IHISSESSION. 4 ) ji prior niorta<;'ee thereof (/). But where a inort<^a'agee is entitlcMl to the t^iowinj;' crojjs as acjainst a lessee of the mort<^agee oi' the land (nt). A niorttjjaujor after default is so far as crops t-rowin*;- upon the niortga.'at;« •' ciititliMl M •rrowiiif,' crops. (;inittt-l niortgaj.'*" on growhip (•rii)i>.. iiflcr litifault cannot giv<- title to grow- ing crops against tiu- niovfgagcc. It' llnii'1g;ii.'c consists t S!lI'l>lll-> rent>. Moi'tK;ty:Hc liiibU' Hilly t'oi IMMM'-SIU'V rejiuirs. Not Ixmiiil to expoiH? iiioimy ill it'lmildiiiy:. Moit^aH- <■ liiihlo for WUStf . J[o!tf;'atCe«- / takiiip; / liOHsessioii ciiiiiiot divest iiiinselt 0} lial.ility by , Itossfssidi. fiDihlc liini to <1() 80, and lu' will l)t' liiil)le I'or (loteriomtioii (ic'CiiHioni'd by lii.s f^roNs or wilful ncj^lifjonee ( p). Anned (//). VVHiere, however, the owner of land depositiMJ his title deeds on the 19th of May for the purpose of havin<;' a morttja^e thereof pre- pared, which was accor(lint>iy made out and executed on the 8()th of the same month, and om the preceding day the mort<;aijor madi' a lease, of whif;h, however, the mort- gagee hail n(j notice, it was held that the lessee could not r(!strain proceedings under the mortgage (z). The mortgagee is entitled to the rent by virtue of the mortgage which conveys the reversion, but the tenant may pay the rent to the moi'tgagoi' until lu; receives notice from the mortgagee (<<)• A notice to the tenant requiring him to pay rent to the mortgagee operates as an attornment, and all rents due and unpaid at the time the notice is given and all subsequent rents belong to the mortgagee, wdio may distrain for the .same or recover them in an action against the tenant (7>). If tne tenant voluntarily pays rent to the mortgagor after notice from the mortgagee and (x) Ashworth v. Lord (1887) ;i6 Ch. D. 545. iy) Salmon v. Dean (1851) 3 Mac. & G. Mi. (s) McKay v. Davidson (18G7) 13 Gr. 498. (a) 4 Anne (1705) c. 16, s. 9. " (b) 4 Anne (1705) c. 16, ss. 9 & 10; ifos.s v. Gallimore (1779) Doug. 279. , . ' , M()i't)rii>;<"' ill pitsscsKioii wlit'ii |mi(l niiiHt I'fconvfv. Ui}.flits (tf l(Miiuits prior to niortf,'ii);p. MortKiigBf' entitled to rents. Notice to pay rent operates as an attornment. Temmt paying rent to mortgagoi- after notice from mortKiiJ^'ee. i 3 k Z) U(i RKiHTS AND IJAHILITIES OK THE M()RTGA(jIEE. No ili stress for I'eiits iU'cru- iiijr iirior to nioi'tpif^c. After iiiortiraj^e •iiortf^ii^ror Mloiie ciuiiiot iiKike vjilid leiise. .Mortt^iif^ee niiiy confirm teji:i,ic , . Veiirly tenancy may lie ci'eiitetl lietwet'n inortfjiifior and moi'tj^ngee. is afterwards compi-lled to pay it over again to the mort- gagee he cannot recover it back from tlie mortgagor (c). A mortgagee cannot distrain, tliotigh he may sue, for rents which accrued due prior to the mortgage and which have been assigned to him ('/). If the tenant lie in (K'cupation oi the land a» tenant from year to year he will be entitled to the usual notice to ((uit before the mortgagee can recover possession (e). A mortgagee is not liable to a tenant on an attirmativc covenant which does not run with the land, even although he may havt; notice of it (_/'). Where the lands are already in moi-tgage the concui'- rence of both mortgagor and moj-tgagee is necessaiy to a valid lease of the lands unless the lease is made by the mortgagee alone under an ex]>ress power contained in the mortoaw, A mortoaoor himself carniot after the makinii" of the moi'tgage create a lease that will })e binding on the mortgagee, and if a tenant iinder such a lease take pos- session the mortgagee may at any time I'ject him without notice (cf). The mortgagee, however, may confirm the tenancy, <'ither expressly or ,.y implicati(jn from conduct. Thu.s, if he accepts or demands rent fronj the tenant or gives him notice to (juit it may be inferred that he haw acknowledged the tenancy (A). If the mortgagee gives notice to the tenant to pay rent to him and the tenant pays rent, then in the absence of express agreement a tenancj' from year to year is tluTcby created (6). But if the tenant should, (<•) ///.w.v V. Sroll (1849) 7 C.B. (i!}. (d) Fliyht V. limUcii (IHIt.")) 7 Sim. 14S); lirotcn v. MchofmlUait Counties ctr. Socielji (I'SoU) 1 E. & K. 832. (f) Birch V. iVrujht (1786) 1 T.K. :i78; see also Cnnnda I'ermaneiil HniUUiit/ (iu. 4o:i". ((f) (lihhs V. Cntihsliauk (1873) L.K. 8 C.P. 454. (/() Kvvd, V. H(tll (1779) Douk. 21; Smith v. Ktiqington (1874) L.K. » C.P. 145. (/) Corhvll V. Phmdeu (1884) 1»5 Ch. 1). 078. M()11T0A(JEE IX POSSESSION. refuse to pay rent pursuant to tlie notice no tenancy will be created, and the inortj^agee cannot afterwards recover the rent by action or distress according to the terms of the lease made with the niortgugor. The mort^^agee's only remedy in that case is eviction (j). The mortgagee may bring action to recover possession from the tenant, and to recover as mesne profits the rents due under the lease made by the mortgagor ; and the tenant is justified in ])aying rents to the mortgagee if he receive a notice demanding them (/.;). A lease made by the ntortgagor after the mortgage is, however, not void ; and if the mortgagee does not inter- fere, or if no default is made in payment of the mortgage moneys and the mortgagee does not become entitled to possession, the mortgagor may distrain for the rent due (/.), evtui after the mortgagee has given notice but l)efore payment ( in ). Under a mortgage made pursuant to the Act resjUicting Short Fomis of M(»rt). There is nothiiig in this covenant (Schedule B, clause 7) repugnant to the proviso contained in Schedule B, clause 14 of the act, that the mortgagee on default of payment n)ay, after giving notice, enter (^n and lease or sell the lands. The act contemplated in the proviso is not the mere taking possession in order to keep down the (/) Toirerfioii v. Jackson [I89I] 2 (^.B. 484; /iVa^.y v. Elliot (IHSH) !) A. \- E. :W2. (A) Pope V. niyijs (1829) 9 B. & C. 245. (/) Trent v. Hunt (185;}) 9 Exch. 14. (/«.) Caritentcr v. Parker (1857) :J (^B.N.S. 206; IVilton v. ftnnn (1851) 17 Q.B. 294. {<>) K.S.O. (1897) f. 12G. (/*) Brcthonr v. Brooke (1H9;J) 2\\ Out. 058; 21 Ont. App. 144. Mortgagee may recover possession and meo'ie pionts. Lease made by mortgagor after the mortgage not void. Kight of mortgagee to lease on default witliout notice. Uight of mortgagee to lease under power to lease after notice. 3 V, RIGHTS AM) LIAIUIJTIKS OF THE M<)HT). A deri\ati\'e niortgaoee is l)oinid to account to his assionoi- for all profits made by him. Thus where a derivative mortgagee by representing himself to be the absolute mortgagee obtained an assignment of the etjuity of redemption which he subse(|uently re-sold at a profit, he was held bound to account for the profits so made (c). In a redemption suit by the second mortgagee against the first in which it appeared that the equitj' of redemp- redemption. ^j^^^ j^^^^^i }^^apQj„jj vested ill the first mortgagee, and that he had entered into possession and had cut and removed timber to a oreater value than the amount due on his moitgnge, it was held that he was bound to account for the ulue of only such timber and occupation rent as was taken or received by him as mortgagee, and not for what he took or received as owner of the equity of redemption, but that the second mortgagee might ask for a receiver((/). The rule is that Avhen a mortgagee enters into possession he does so for the purpose of recovering l)oth his principal and interest. Eiiuity regards the estate only as a security for the money due on the moi'tgage, and the court recpiires the mortgagee to be diligent in realizing the amount due, in order that he may restore the estate to the mortgagor, who is in e((uity tlie person entitled t(i it. Nevertheless the mortgagee will not be held responsible for any greatei- rent than he has actualh' received, unless it is clearh- established in evidence that he knew a greater rent might and could have been obtained, and that he refused or neglected to obtain the same (e). Occupation As between mortaagor and mortgagee there is nothini)' rent. ^ " . . . . to prevent th(> mortgagee taking possession at a fair and (h) MitchvU V. hiiitiair (18!>7) 1 N.B. Eq. 427. ((') inikiiis V. MrLian (188(1) 10 Ont. 58; lU Out. App. 407 : 14 S.C.K. 'J2. {d) Sliiiihoffv. I'mnni (1805) 11 Gr. 114. (c) Merriam v. Cronk (1874) 21 Or. 60; Waddvll v. MvVoll (lS(i,s) 14 Gv. 211: Pvuu V. Lorkwond (1850) 1 Gr. 547. M(>KT(iA(JKI'; IX I'OSHESSIOX. 151 reasonablo rent atfrot'd upon between them. In such ti case the mortgagee is not a " mortgagee in posse.ssion " in the tecluiieal sense of the term. A subse(iiient incumbrancer, however, who l)ecomes such l)ei'ore tlie first mortgagee enters into possession, is not bound by such an arrange- ment ; and tlie IVIaster may charge tlie first mortgagee with a fair occupation rent although it exceeds tliat stipuhited for (/). Unless a mortgagee has been in actual occupation of the property he will not be charged with an occupation rent ; but lie mav be char<»ejible on the uTound of wilful default {;/). Where a mortgagee is in occupation of the mortgaged premises, the Master should charge him with occupation rent up to the day appointed for payment ; so, where it appeai'ed that a mortgagee under such circumstances had been charged with occupation rent only to the date of the Master's report, and had since continued in possession, the final order for foreclosure was ref usiid (A ). The holder of a mortgage went to reside with his sister, the widow of the mortgagor, upon the mortgaged premises, but asserted no claim or right to possession as mortgagee initil some years afterwards, when the widow, being about to marr^'', desired her brother to leave. The brother was charged with occupation rent from that period, not from the time of his going to reside on the property : and it was held that such assertion of right had not the effect of referring back his possession to the time when he first accjuired the right or went to reside on the property (i). A mortgagee in pos-session may l)e charged with rents actually received, or which, but for wilful neglect and deiVuilt, he might have received ; on which occupation rent is charged are discussed. (0 Venn V. Lockwood (1850) 1 Gr. 547. (w) Waddell v. .}feColl (18G8) 14 Gr. 211. (n) White v. Citji of London Brewery Co. (1889) 42 (.")i. D. 2;t7. {o) Sandon v. Hooper (1843) 6 Beav. 240; Henderson v. Antwood [1894] A.C. 150. {p) Landowners .Vv. Co. v. Ashford (1880) Ki Tli. I). 412. (q) Eyre v. Hughes (187()) 2 Ch. D. 148. ((•) (1866) 12 Gr. 474. ' MOHTCJAOKE IX I'OSSESSIOX. isa Agi'eeuitnt by amount for care and cultivation, but not tlie vahu- tlu-rt'of at the time of redemption (.s). , A mortgatjee in possession of a grist mill and other property erected a cardino; and fulling mill. This was disallowed to him as being an improvement that a mort- gagee could not make without consent {t). In a case where the mortgagors released their ecjuity of redemption to the mortgagee, and the mortgagee subse- mortgagor to , 1 • 1 ] • , pay all costs quently signed a memorancnxm agreeing to i-econvey u])on of improve - being paid principal and interest and all costs of impi-ove- "lents. ments made by her, it was lield in a suit foj* redemption that the mortgagee was entitled to recovei for all per- manent and lasting impi-ovements, even although the estate n>",ht not have been increased in value to an amount equal to the sum expended thereon (*t). The owner of certain lands after a tivaty for a loan thereon conveyed the lands alwohitely to the pei'son making the loan and received back a bond conditioned to reconvey the property on payment of a certain sum at the end of two years. Default was made in such payment. The court declared the rleed to have been made as secu)ity only, the bond to reconvey containing an inidertaking by the vendor to pay the stipulated amoxmt, and it appearing that the value of the property greatly exceeded the sum paid for the alleged purcliase thereof ; but under the circumstances the court charged the mortgagee with such rents and profits as were actually received, or an occupa- tion rent, if in actual possession, not with sucli rents as might have been received ; and the court also allowed him for repairs and permanent improvements ( y). Where a mortgagee is charged wdth rents and profits received from improvements made by himself he slujuld i 3 V (s) Paul V. Johnson (ISGOi) 12 Or. 474. (0 Kerb)/ w.Ko'hii (1856) 5 Gr. 587. (m) Bmthcrton v. JhthcringUni (187()) Zi Gr. J 87. {v) Bidlen v. Jienici<-k (1862) 9 Gr. 202. 154 ItKiHTS AN'I) LIAIULITIES OF THE >[()HT(iAf unsuecessfiil ie!»al pro- <'eedinsr>. )){• allowfd tlic oxpen.se of such iinproveinentH to n cor- it'sj)oiulint>' amount (w). liuprovt'inents made under the belief of absolute owner- .slii|) aiv allowed more liberally than to a person who makes iniprovcnK'uts knowing that he is but a mortougee (a*). A nuntoaoee is not allowed to charo-i' any conniiission or remuneration for his personal trouble, even although the mortgage deed contains a stipulation purporting to authorize him to make such a charge {z). Although a mcntgagee who has taken possession will not be allowed compensation for his care and trouble in collecting the rents, he may appoint an agent for that purpose and will he allowed reasonable renuuieration for his services (((). Where it is found that the mortgagee in possession on taking Ids accounts has sutt'ered a loss by reason of the rents i it lining sufficient to pay the expenses of manage- ment, ht' is entitled to be allowed out of the proceeds of the sale of the property what he has lost (h). In taking the account in the Master's office the plaintiff as assignee of the mortgage claimed to be entitled to moneys paiil by the mortgagee to redeem the mortgaged lands which had been sold for arrears of taxes. It was held that mone}' so paid is a lien on the land, and tile mortgagee has a right to claim the same as a just alloAvance. with interest at six per cent, from the date of payment (c). The general rule is that a mortgagee is not allowed to add to his mortgage debt the costs of tnisuccessful proceed- (ic) Couslahlc V. Guest (1858) 6 Gv. r)10. (,»•) Cdiroll V. lloherltiOH (1868) If) Gr. I7:i; McLaren v. Frascr (1870) 17 Gr. 5ti7. {=) Eijrc V. niKjhes (1876) 2 Ch. D. 148. (a) French y. Baron (1740) 2 Atk. 120; Godfrci) v. fVatson (1747) a Atk. r)17; Freehold Loan Co. v. McLean (1893) "O Man. R. 15. ih) nnnifo.s V. liimi (1886) 33 Ch. D. 279; Kiee v. Georeje (1872) 19 Gr. 174. («•) Ifilen V. Li(hjard (1883) 10 P.R. 182. ^lORTdAOEE IX POSSESSION. .).) inj>.s at law instituted by hiin.sclf ami not imdertakt'U with the approval of the inort«i^a<;or (;a<4(', with a view to purehasint*" the equity of redentption, from claiming; more than the amount then claimed {<'). But such repre- sentations if made to a person not known to be intending;' to purchase, or to deal in respect of the e(]uity of redemp- tion, are not binding;' on the mort<''a};'<^e althouo'h acted upon (/). Where it is found on takino- the accounts that the net amount received for rents exceeds theamount due for interest on the niortj^age debt the court may direct that the surplus rents and profits be applied in reduction of the principal, or in other words that the account be taken with rests {(f). The mortj>aoee will b(^ chai'o;ed with interest on the surplus of rents and profits remainino' in liis hands after payment of his debt (A). A mort^aoee in possession whose mortgage is in arrear should not be clmrged with rests on rents received by him, luitil lie has been paid in full (I). Where it is neces- sary that a mortgagee should take possession for his own protection, he is not chai'geable with rests, and this even althouglt the mortgage was not in arrear (j). A tenant of a mortgagor took an assignment of the mortgage after the mortgagor's death, and as the repre- sentatives of tlie mortgagor had no means of paying the debt he au'reed with the widow that she and her children ?]stop|>el of iiiortpiiKee. Account may be taken with rests. c,- n^ Interest on surplus rt'iitfi ^ after mort- gage paid. 3 ^1 k N ^ P: I'J :^ {(1) Ifellsv. The Tnisl ami Lomi Co. (1H84) 9 Out. 170; 120 C.L..I. 407. (e) Dominion Saving.s i)' Itivestmcnt Societtf v. KittntU/c C187G) 23 Gr. 6;tl.| (/) Moffait y.Bank of Upper CniimUi (ISo*)) f) Gr. 374. {g) Thorneyvmft v. Croekett (1848) 2 H.L.(^ 2;i9. (/() Ashworth v.Loid (1887) 36 Ch. D. 545. (0 CoMwcll V, Hall (1862) 9 Gr. 110; 7 U.C.L.J. (O.S.) 42; S U.C.L.J. (O.S.) 93. (j) Gordon v. Eakiiis (1869) 1(1 Gr. 3(i:!. .")() HiOHTfS AM) I.IAItll.lTIKS OF THE MOimiAGEE. Mode of taking iU'connt. Apiu'opria- tioii of pnyments. should occupy the dwelling' lumst' uiul four acres of the inortoa<^e(l property; and tliat he himself should occupy the residue at a rental of Si 70, and should pay !?40 a year to the widow, and ftjiplv the residue of the rent on the ni()rtt;a<;(^ In a suit for redtunption by a piu'chaser of the ('((uity of iedeni]ition it was held that the defendant was not chargeable with the S40 a year paid to the widow, nor with rests, though the rent for which he was account- able exceeded the interest (/.'). If a niortoagee retains possession of the property after being paid in full the ocneral rule is to charge liiin with interest and rests in respect of his subsecjuent I'eceipts ; (t fortiori is such a charge ])roper wheit; a mortgagee resists the niortgagoi- s right to i-edeem {I). In taking the accounts against a mortgagee in posses- sion it is usual to take an account of the amount due under the mortgage and an account of the rents and profits chargeable to tlie mortgagee, and to apply tlu^ amount of the lattei" account in reduction successively of the interest, then of the amount advanced for costs and improvements, and lastly of the principal. Payments made on account are to be appropriated (1 ) as the debtor directs at the time of payment, or (2) where there is no direction by the debtor, as the creditor directs : and (3) where neitlier makes any direction the law will apply tlie payments on tlie older debt, or as may be just {in). A mortgage given to secure a floating Ijalance is not discharged by payments made on account, so long as the dealings between the parties continue and any balance remains due in respect thereof, even although the pay- ments exceed in amount the debt due when the mortgage (A-) Gordon v.Eakiiis (18(51)) Ki Gr. ;JC:J. (/) Crippcn v.Ogilrir (]8()9) 1") Ur. 5(58. (w) fFilsoH wJii/koi (188(5) 14 Out. 188. M()HT) Lord Pcnrhyu v. HkijIiv: (1799) 5 Ves. 99; Oxcnham v. EUis (1854) 18 Beav. r)93. Nl 3 foniHioii law. .Moi'tftsijjc in •'((iiity. CHAITHK XV. S.VLK ITsDKK Power ok S.m.k, i. Oriiflii (iiiil Den li>i)iiii'iif oj I'mrt'r itf Sidr. At eoiHiiion luw a inort^unc cniutcMl strictly an estate upon ('()ii(liti()n. A IVoHhu'iit wan inadt' to the inort^-ajjee with a condition that upon payment of the inortj^aj'e debt and intei-est at the time and place appoint*'*! it should be lawtul I'or the iiioitoafjfoi' to re-enter. On livery made the niorty,a;;'ee became the lepil owner ol' the land subject to the condition, it' th«' condition was performed the mort- y;ajfor re-entered and was in as of his old estate ; but if the condition was not performed the mortgagee's estate became absolute and indefeasible, and the mortii'aijee was then at liberty to sell or otherwi.se deal with the land free from any right of thtMnortt»afV()r (*/). But courts of equity, while they could not alter the legal ett'ect of the forfeiture, operated on the conscience of the mortgagee, acting In pci'smutrtt and not in rein, and declared it to be contrary to con.science and reason that the mortgagee should retain absolutely what was intended as a mere security ; that the forfeiture at common law was in the nature of a penalty from which ecjuity should relieve ; and that, until foreclosed by a decree of the court, the mortgagor had a right to redeem upon payment of principal, interest and costs. Thus to enable the mortgagee to hold the lands absolutely or to make a good title on sale it became necessary to foreclose the mortgagor's equity' of redemption. Until the right to a judicial sale was introduced by («) See Neshiti v. liiev (18G4) 14 U.C.C.P. 409. SALK INDKH roWKIl <>K SALE. IAS firwt l»y courts of ). Tlu' necoHsitv thus iinposcd \ipon tlu' inortj^ajft't" ot" '^liK'ni "f , . 1 ' . ..1 • !• l>OW*'' ot Unvclosinji; tlu^ 0(|Uity or ri'dciuptiou — a trdious jnoccss s,ii,.. whci'i' tluTc wtTi^ Hi'veml .sul)H('(|UL'nt incuuihrancfs and ^ therefore successive periods for redemption led to the introduction 1)V conveyancers of the power of sale, a remedy intend( d to afford a simpler and more exjieditious Uhxle of t^ettino- rid of the mortt;a<;or's (Mpiity nt" ii-di'inp- ion and of I'eali/.inj'' the mortoairi' debt. Courts of eiiuitv, however, did not view ])owrrs of sale ''<'w oi ... 1111 11 • **'^''' ""' with favour but retjarded them as opposed to the . t|Uital>lr lavouifd ui doctrine that the mortj»;ai{;or had an eipiity of ledeiiiption which could not be *;ot rid of without a decree o\' fore- closure. Thus in Croft v. Poivd{c) the mort^a^or was let in to redeem several years after the exercise of the power, and in Kiiuj v. Purlsh of luHnijion {d) Lord Kenyon. ('..I. said : — "In mortgage deeds there is sometimes introduced a clause tliat the mortgagee may repay liimself by sale of the mortgaged premises without the concurrence of the mortgagor; but a court of equity would, ' believe, control the exercise of that ]>ower." in Covdev v. Moiymi {r), however, the validity of a '"" ""'" !• 1 ' 1 r. 1 1 ' , ' ■. niatelv power ot sale was expre.ssly aitirmed, and it was held that recoiriiize.l. the mortgaf»ee mi^ht exercise such a power, without the concurrence of tlu; inortoagor, though the latter had covenanted with the mortgagee to join in a sale. It may now be considered as settled that the power of .sale is a necessary and proper :r."ident of the ordinary mortgage deed. This point has frequently arisen in , England in cases in which the ([uestion before the court was whether a power to mortgage authorized the making {h) 15 & IG Viet. Imp. (18512) c. 8G enabled the court in England to direct a sale in lieu of foreclosure. As to the introduction of this practice in Upper Canada see Meyers v. Harrison (1850) 1 Gr. 44M at p. 455. (c) Com. (17.38) GO'S. (d) (1801) 1 East 288. (e) (1811) 18 Ves. 344. i •J u;o Powt'i of sale recoif- iiizeil by tin- lepislatuie. IlKiJITS ANM) LIAIULITIES OK THE MORTrance registered under tiiis Act, or that is lierein declared to be implied in such instrument, and such default is continued for the space of one caleJidar month, or for sucli longer period of time as is expressly limited for that purpose in such instrument, the mortgagee or eiicumbraucee may, by direction of the judge, give to the C) V, (/(»() U.S.O. (1897) c. 120, Hchedule B, clause U. I')) K.S.O. (18t)7) c. laS, s. 38. 164 RIGHTS AND LIAHILITIES OF THE MORTGAGEE. Statutory short form of power, if varied, does not extend to assigns. mortgagor or encumbrancer notice in writing to pay, witliin a time to be specified in tlie notice, tlie money tiien due or owing on the mortgage or encumbrance, or to observe the covenants therein expressed or implied, as the case may be, and tliat all competent rights and powers will be resorted to unless such default is remedied or, where the mortgagor or encumbrancer cannot be found, may give the notice in that behalf to the mortgagor or encumbrancer in such manner as the judge, on summary application, ex parte directs. 76. In default of compliance with the terms of such notice the mortgagee or encumbrancee, under and subject to the direction of the judge, may sell the land so mortgaged or encumbered, or any part thereof, and all the estate or interest therein of the mortgagor or encumbrancer, and, either altogether or in lots, by public auction or by private contract, or by botli modes of sale, and subject to such conditions as the judge directs, and to make and execute all instru- ments as are necessary for effecting the sale thereof; and all sales, contracts, matters and things hereby authorized shall be as valid and effectual as if the mortgagor or encumbrancer had made, done or executed the same: and the receipt or receipts in writing of the mortgagee or encumbrancee shall be a sufficient discharge to the purchaser of the land, estate or interest, or of any portion thereof, for 80 much of his purchase money as is thereby expressed to be received: and no purchaser shall be answerable for the loss, misappli- cation or non-application, or be obliged to see to the application of the purchase money by him paid, nor shall he be concerned to inquire as to the fact of any default having been made or notice having been given as aforesaid; and before a certificate of title shall be granted to the purchaser, the purchase money arising from the sale of the land shall be paid into Court by the purchaser, and shall be, by order of the judge, applied: first, in payment of the expenses occa- sioned by the sale and such costs as may be ordered to be paid by the judge; secondly, in payment of the moneys which are then due or owing to the mortgagee or encumbrancee; thirdly, in payment of subsequent mortgages or encumbrances, if any, in the order of their priority; and the surplus, if any, shall be paid to the mortgagor or encumbrancer, as the case may be ; and thereupon such sale shall be confirmed by the judge. iii. Statutory Poiver of Sale. Section 2 of Schedule B of the Ontario Act, R.S.O. (1897) chapter 126, provides that the parties may introduce into, or annex to any of the abbreviated forms any express exceptions from or other express qualifications thereof ; and the like exceptions and qualifications shall be taken to be made from or in the corresponding extended forms. But to obtain the benefit of the extended forms in Column Two it is necessary to use the abbreviated forms of words in Coluuni One corresponding thereto. The extended form of the power of sale in the Short Forms Act{p), provides that the power may be exercised (;)) Schedule B, clause 14. SALE UNDER I'OWEll OF SALE. 165 by the assij^ns of the mortgagee ; but if the extended form is not available tlie power is personal to the mortgagee and does not pass to his assignee. For while the assign- ment of the mortgage conveys the land and transfers the mortgage debt the assignee cannot exercise the power of sale, unless it is expressly reserved to him (q). In Re Gilchrist and Island (r) the power of sale was Be Gilchrist in the -'ollowing words : — " Provided that the said mort- gagee, on default of payment for two months, may without giving any notice, enter on and lease or sell the said lands;" and it was held that this was neither an exception from or a (jualification of the form provided by the statute, but an abolition of one of its iriost important forms, that is, that written notice should be given to the mortgagor. The powei", thei'cfore, was personal to the mortgagee and could not be exercised by his assigns. In Re Green and Artkin {s) tlie power of sale was in these words: — " Provided that the said mortgagee on default of payment for one month may on giving notice in writing enter on and lease or sell the said lands." Ferguson, J. held that the substitution of the word " month " for '' months " was not a material variation and that the assignee of the mortgage could exercise the power of sale. Where the proviso was that the mortgagee, on default of payment for one day, might without any notice enter on and lease or sell the lands, the court was divided in opinion as to its effect. Rose, J. dissented from Re Gilchrist and Island (t) and was of opinion that the power was operative under the short forms act, while Street, J. held that the form used was not operative, and that the words. Is < (7) Emmett v. Quinn (1882) 7 Otit. App. 306; Re Gilchrist and Island (1886) 11 Ont. T).'}?; Bradford v. Jicljield (1828) 2 Sim. 264; Cooke V. Crau-ford (1842) 13 Sim. 91; Titlcy v. Wolstenholme (1844) 7 Beav. 425; Re Morton and Hallctt (1880) 15 Ch. D. 143, C.A.; Re Rttmney and Smith (1897) 2 Cli. 351. (»•) (1886) 11 Ont. 537. is) (1887) 14 Ont. 697. (0 (1886) 11 Ont. 537. H)6 RIGHTS AND LIABILITIES OF THE MORTGAGEE. Necessity for entry where extended form not available . therefore, muHt be contined to their actual meaning apart from the statute (w). In Barry v. Anderson (v) the words used were as follows :— " Provided that the said mortgagees on default of payment for one month, may on ten days' notice, enter on and lease or sell the said lands. And provided also that in case default be made in payment of either principal or interest for two months after any payment of either falls due, the said power of sale and entry may be acted upon without any notice ; " and it was held. Burton, J. A. dissenting, that this form was within the act, and that the power of sale could be exercised by the assignees of the mortgagee. Osier, J.A. said : — " There is first the usual short form clause of power of sale after notice which must be read, in accordance with the Act and clause 3 of the directions, It.S.O. (1887) ch. 107, Schedule B., Form 14, in the extended form, the substitution of the word " month " for" months," if important, being in my humble judgment an express qualification within the meaning of the Act, of Form 14 in the first column of the schedule. Then follows a separate clause: "Provided also that in case default be made in payment of either principal or interest for two months after any payment of either falls due, the said power of sale and entry may Ije acted upon without any notice." This clause is to be read just as if the previous clause had been set forth in its extended form, since that clause is, as I hold, in exact compliance with the Act, and is therefore to be construed as if it had been in the form of words in column 2 of the schedule, the extended form. Read- ing the second clause as following the extension it declares that in the event it provides for, the said power of sale and entry may be acted upon without notice. All the terms of tliat power therefore, except as varied by the terms of the 2nd clause, are brought into that clause by relation, and among those terms is the provision that it may be exercised by the heirs, executors, administrators or assigns of the mortgagee." In Clark v Harvey (w) the question was discussed whether it was necessary that an entry should be made on the lands before exercising the power of sale. The extended form in the act provides that the mortgagee may exercise the power of sale " whether in or out of pos- session." Rose, J. was of opinion that the form used in the (m) Clarl- V. Harvqi (1888) 16 Ont. 159. (v) (1891) 18 Ont. App. 247. (jf) (1888) 16 Ont. 159. SALE UNDER POAVER OF SALE. 167 mortgage deed in this case was operative under the act, and that therefore the nioi'tgagee conld sell " wliether in or out of possession." But Street, J. (.«) held that the form was inoperative and that tlie mortgagee was contined strictly to the words used by him which provided that he might enter on and lease or sell the said lands, and that therefore the power did not arise or at all events could not be exercised until entry made on the lands. In Pottraf v. Tweedle (y) Robertson, J. held that it was not necessary that the mortgagee should make an entry before exercising the power of sale. In view of this diversity of judicial opinion it is important that the short forms provided by the act should be strictly followed ; or if another form is used the power should be expressly extended to the assigns of the mort- gagee. Where it is desired to provide for sale without notice Power of an independent clause such as the following may be added notice, to the short foi-m provided by the act : — "Provided that the said mortgagee on default of pay- ment for months may on notice enter on and lease or sell the said lands. And provided also that if default be made in payment of either principal or interest for months after any payment of either falls due the said mortgagee, his heirs, executors, administrators and assigns ma}^ exercise the said powers of entering, leasing and selling, or any of them, without any notiv-ie" (z). In consequence of the decision in Re Gilchrist and Island {a) the following was enacted by the Ontario Legislature : — 1. Whenever a mortgafre purporting to be made in piirauance of the Act rcs}wcti» yf j^ inortgage under tlie power of sale, was limited to two year.s. That provision is now contained in the Act respecting Afort(f(Ujes of Real Estate {cc) : — 34. No sale made prior to the 23rd day of March, 1888, shall be declared to be invalid on the ground, or by reason only of the same haviTig been made in pursuance of a power of sale contained in a mortgage where such power has been exercised by an assignee of such mortgage instead of the original mortgagee unless within two years after the making of any such sale, proceedings have been taken to declare the same to be invalid or irregular: but nothing in this section contained shall lie deemed or construed to confirm any such sale which for any other reason or any other ground might be set aside, or declared irregular or invalid; nor shall anything herein contained affect any proceeding, suit or matter, adjudged or determined before or pending at the said date or brought within three months thereafter. By the Act respecting Mortgages of Real Estate (d), it is enacted as follows : — 29. (1) Whenever a mortgage made in pursuance of the Act respecting Short Forms of Mortgages contains a power of sale in the form No. 14, in Column One of Schedule B. to the said Act, the mort- gagee, his heirs, executors, administrators or assigns may, in exercising the said power in lieu of taking the proceedings provided for by the said form No. 14, Column Two, take proceedings under and have the benefit of the provisions of Part II. of this Act, except that such power shall not be exercisable until after at least four months' default and at least two months' notice, or such longer periods as may by the power contained in such mortgage be fixed therefor, and the said Part II. shall apply to a sale made under such power. Thus where a mortgage is made in pursuance of the short forms act and contains a power of sale, the person exercising the power may avail himself of the provisions of the Act respecting Mortgages of Real Estate (e) in either of the following cases : — (1) Where the power of sale is in conformity with the (6) 53 Vict. (1890) c. 27, s. 1, now E.S.O. (1897) c. respecting Mortgages of Real Estate, s. 29, sub-s. 2. (c) 51 Vict. e. 15, s. 5. (cc) R.S.O. (1897) c. 121, s. 34. id) R.S.O. (1897) c. 121, (e) R.S.O. (1897) c. 121. 121, Act SALE UNDER POWER OF SALE. 169 short forms act, the mortgagee hi.s executors, administrators or assigns may on foiir months' default and two months' notice, unless the terms of the power fix longer periods, take the proceedings prescrihed by the Act respecting Mort- gages of Real Estate in lieu of the proceedings provided by the short forms act. (2) Where the power of sale is not in conformity with the short forms act by reason of its providing for sale without notice, the mortgagi^e, his heirs, executors, admin- istrators or assigns may take the proceedings provided by the Act respecting MorlgagcH of Real Estate. There is no remedy where a mortgage containing a power of sale is nuide in pursuance of the short forms act, and the power is defective for any reason other than becau.se it provides for sale without notice. Nor is there any remedy where a mortgage witli power of .sale is not made in pursuance of the short forms act and the power of sale is for any rea.son defective. Prior to the passing of Lord Cranworth's Act (/), in Implied order that a mortgagee might sell the mortgaged lands sale under without judicial proceedings it was necessary that a power EnglishActs. of sale should be given expressly by the mortgage deed. By that act a pow^er of .sale was implied in certain cases. The sections of Loi^l Crantvorth's Act relating to implied powers of sale were repealed by the Conveyancing and Law of Property Act, IHHl (g), but not so as to affect mortgages made prior to 1882. The la.st mentioned act (h) gives to every mortgagee whose mortgage is made by deed a power somewhat .similar to the power given in Ontario by the Act respecting Mortgages of Real Estate (i), except in so far as a contrary intention is expressed in the mortgage deed. (/) 23 & 24 Vict. Imp. (1860) c. 145, S8. 11 et seq. {g) 44 & 45 Vict. Imp. (1881) c. 41. {h) s. 19. (i) R.S.O. (1897) c. 121, 8. 19. 170 HKiHTS AND LfAIULlTIES OF THE MORTGAGEE. Implied power of sale. Sale under power in void mort- gage. The AH respectlnij Mort(j(ujes uf Real Estate (j) enacts as follows : — 18. Whore any principal money is seem-ed or charged by deed executed after the Uth day of March, 1879, on any hereditaments of any tenure, or on any interest therein, the person to whom the money shall, for the time Ixtinj^ be paya})lc, his executors, administrators and assij^ns, shall, at any time after the expiration of four months from the time when the ])rineipal money shall have become payable, aceordiiiK to the terms of the deed, or after any interest on the prin- cipal mouey shall have been in arrear for six months, or after any omission to pay any premium on any insurance which, by the term.v of the deed, ouj^ht to be paid by the jierson entitled to the property subject to the charj^e, have the following powers, to the same extent (but no more) as if they had been in terms conferred by the person creatiuf? the eharj^e, namely: 1st. A power to sell, or concur with any other person in selling, the whole or any p.-irt of the property by public auction or private contract, sul),iect to any reasonable conditions he may think fit to make, and to rescind or vary contracts for sale, or buy in and re-sell the property from time to time in like manner. These provisions do not apply to a niorterage deed which contains an express power of sale except in the two cases with which section 29 deals: — (I) Where a niortejage is made in pursuance of the short forms act and contains a power of sale which is in conformity with that act, the person exercisino- the power of sale may take the proceed- in<>;s provided hy this act instead of those prescribed by tl'.e short forms act. (2) Where a mortgage made in pursuance of the short forms act contains a power of sale which departs from that act by making the power of sale exercisable without notice, the mortgagee, his heirs, executors, administrators or assigns may in the same manner sell under and have the benefit of the provisions of this act. In a mortgage which was intended to be taken in the name of the mortgagee Mary Jane Bin-ton, she, by mistake, was described as Clara Benton, that being a name she had never assumed or been known by. It was held that the legal estate did not pass to her by the mortgage, whatever its operation in equity ; and that she could not make a good legal title to a purchaser under the power of sale in the mortgage (k). iJ) R.S.O. (1897) 0. 121. (A-) Burton v. Doufjall (1899) 30 Ont. 543. SALE UNDER POWER OF SALE. 171 iv. Exercm' of Power of S: A power of sale may provide for its exercise without notice ; and snch a power is as valid as one which recjuires notice to be given (/). But it is deemed oppressive that a mortgagee should have a power to sell without notice to the mortgagor ((/^) ; and it is tlierefore usual and advisable that notice should be given to the persons interested of the intention to exercise the power. Foruierly the power in the short forms act was reserved to the mortgagee, his heirs or assigns (v/), but it is now reserved to the mortgagee, his heirs, executors, adminis- trators or assigns (o). This change was properly made as the personal representatives of the mortgagee are the proper persons to receive the money and to assign or discharge the mortgage debt ( 2>)- The exercise of a power of sale is not merely ministerial, but involves personal discretion on the part of the mort- gagee, as for instance in fixing the time and place of sale, settling conditions of sale, advertising and in other matters coiniected with the sale. It would seem, however, that a power of sale, whether expressed in the mortgage deed or implied by statute, may be exercised by an agent of the mortgagee acting under power of attorney. For the power of sale is given to the mortgagee for his own benefit and he is not a trustee for the mortgagor ; and a person having an absolute power may exercise it by attorney {q). In order tliat an agent of the mortgagee may convey the Notice of intention to (^\(Iuly, \HH{'), a mortj^'acje is made to more persons than one jointly ami not in shares, the mort<(at;e money shall he deemed to be money belon<;in»i; to the mortt^atjees on a joint account, ludess a contrary intention is (ixpressed in the mortijaije ( '' ) ; and the survivor or survivors of the mort<;aeees may exercise the power of sale. Prior to Ist July, J88(), the survivor could not exor- cise the power of sale unless the mortj^aj^e contained an express dtjclaratioti that tlie loan was made out of moneys belon<>in^' to the mort^a^jees on a joint account (v). Where a m(jrt<^a<;e is made to several mortgagees to secure distinct sums advanced ])y them, it w^ould seem that all the surviving- mortgagees and the legal representatives of any deceased mortgagees must concur in exercising the (r) Mesne v. liriant (181j(i) 2 .Tur. N.S. 922. (s) Salowai) v. S(mwbritlge (18.')5) 1 K. & J. 371 ; 7 DeG, M. & G. 594. (t) lie Gilmour and Whitb (1«S7) 14 Ont. 694. (m) R.S.O. (1897) c. 121, 8. 13. ((') Hiud V. Poole (185.')) 1 K. & J. 383. SALE HNDKIl I'OWKR Ol* SAIi ('(juitable mort^a^jee sellin). The (question lias been raised wliether a transfer of a mongage by way of sub-mortgage has the effect of trans- ferring the power of sale, or of destroying or suspending it (o). It would seem that by virtue of tlie Act respecting Mortgagee of F d Estate ((/), the power of sale contained in the original mortgage passes to and is exercisable; by a with itiipliod power of Halt) iniiy convey legal eHtate ; or reversion on lease. Hub -mortga- gee. "irf s (w) See Robbins on Mortgages 890. {x) McCaroi/h v. Whiddon (18()4) 34 Beav. 107; In re Cooper and Allen' a Contrael > 1876) 4 Ch. D. 802. (y) R.S.O. (1897) c. 121. (S) Be Solomon and Meagher's Contract (1889) 40 Ch. D. 508. («) Re Hodfion and Howe's Contract (1887) 35 Ch. D. 668, C.A. (h) Hialt V. imiman (1871) 19 W.R. ()94. (c) Cruse v.Nowcll (1856) 2 Jur. N.S. 536. (d) R.S.O. (1897) c. 121, 174 RIGHTS AND LIAUILITIES OF THE MORTGAGEE. Whore mort- gagee is a lunatic his < v.; 178 UIUHTS AND LIABILITIES OF THE MORTGAGEE. Devolution of Estates Act. Where no personal representa- tive. representatives under the act, such personal representatives, while the real estate remains in them, shall de deemed to be the heirs (f). And if the power of sale is exercised while the real estate remains so vested in the personal representatives, notice of sale must be given to them. The real estate remains vested in the personal repre- sentatives for twelve months after the death of the testator or intestate, or if a caution or cautions be registered, then for twelve months from the registration of such caution or the last of such cautions. After the expiration of that time the real estate will become vested in the heirs or devisees of the mortgagor beneficially entitled thereto or their assigns («). And as the estate may shift under the act from the personal representatives to the beneficiaries the latter may have such an interest in the mortgaged lands as will entitle them to redeem. Therefore, if the power of sale is exercised while the real estate is vested in the personal representatives, it would seem to be necessary, or at least advisable, that the notice should be served in case of intestacy of the mortgagor upon both the heirs and the administrator, and in the case of a devise upon both the testator and the devisee (v). Section 24 of the Manitoba Devolution of EsUites Act provides as follows: — 24. When, by or under any indenture of mortgage, wliether under the new or the old system iis defined by " The Keal Property Act," and whether heretofore or hereafter made, any notice is stipulated to be given to the mortgagor, his heirs or assigns, such notice may be given, in cases where such mortgagor or his assign is dead, to the executor Oi administrator of such deceased person: and siich notice shall be as t-'''"ctual as if made in conformity with such stipulation («•) . A sale under a power re ^ '*■» •vl :^ Persons •^ having ^ interests in Is, the land of which mort- gagee has 3 express F^ notice en- iTj titled to be :^ notified. > Lessee of S mortgagor. ^ C) V,' {x) Parkinson v. Hanburi/ (1860) 1 Ur. & Sm. 143; 2 DeG. J. & S. 152; L.R. 2 H.L. 1. (y) Buckley v. Wilson (1861) 8 Gr. 366. (s) ffoolc \. Smith (1881) 17 Ch. D. 434. [a) (1892) 22 Ont. 533. 180 RIGHTS AND LIAUILITIES OF THE MORTGAGEE. Execution creditors of mortgagor. Execution creditors of mortgagee. Principal and surety. Notice to lunatic. Notice to infant. Cestui que trust should be notified. entitled to redeem. He is therefore entitled to notice of sale (b). Execution creditors of the mortgagor, whose writs are in the sheriff's hands at the time of giving notice of sale to the mortgagor, are assigns and as such are entitled to notice (c). Execution creditors of the mortgagee are not entitled to notice of sale (d). They have, however, such an interest in the due exercise of the power that the court will gi'ant them relief against a mortgagee exercising the power to their disadvantage ((trtr, but only upon such affidavits and jiroof as will satisfy tlie .ludge that it is reasonable and equitable that the ]iroposed action or proceeding should be allowed to be taken and proceeded with. (3) Such affidavit or order may be entitled as follows: In the matter of a mortgage purporting to be made between (describing the jmrlics thereto as in the mortgage) and bearing date on the dav of (4) This section shall not apjily to proceedings to stay waste or other injury to the mortgaged jiremises, and the costs of any applica- tion thereunder shall be in the discretion of the Judge. 32. When sueli demand or notice requires j)ayment of all moneys secured to be jjaid by or under a mortgage, the party making such demand or giving such notice shall accept and receive payment of the siime if made as required by the terms of such notice or demand ; and if there be any dispute as to the costs payable by the person by or on whose behalf such i)ayinent is eitlier made or tendered then such costs shall, on three clear days' notice to such person by the person claiming the same, be taxed and ascertained by the clerk of a County Court, or by a local master aforesaid, and thereupon and in such case, if witliin ten days after said costs have been so taxed and ascertained, payment of said moneys and costs are duly made or tendered to the person entitled thereto, or to his solicitor or agent in that behalf, the same shall be deemed and taken to have been paid or tendered, as the case may be, witliiii the meaning of such notice or demand and in compliance therewitli. Prior to this enactment the mortgagee had the right to mortgagee institute proceedings under the power of sale and con- prior to act. (ft) B.S.O. (1897) c. 121. SALE UNDER POWER OF SALE. 185 currently therewith to bring action to recover the mortgage debt under the covenant, or to recover possession of the lands. Where the notice of .sale under a power of sale was dated 2nd May and a writ claiming payment under the covenant was issued on .'ird May, and both notice and writ were served on 8rd May, it was held that the issue of the writ was a further proceeding within the meaning of the act, and an order was made setting aside the service of the writ and staying all proceedings in the action (r). In Lyon v. RycvHon {ui), the action was commenced to enforce payment under the covenant. After the issue of the writ the mortgagee served notice of exercising the power of sale unless tlie mortgage moneys should be paid within thirty days, but subseijuently the mortgagee gave notice of abandonment of the notice of .sale. It was held that the mortgagee was bound by the notice, and the proceedings in the action were stayed for the thirty days named therein. An advertisement for sale is a proceeding within the meaning of the words "no further proceedings;" and where a mortgagee served a notice stating that unless payment should be made within a montli from service the mortgagee would proceed to .sell, an injunction was granted restraining the mortgagee from publishing an advertise- ment of sale luitil after the expiration of the month (,'•). Proceedings will be stayed only where " piu'suant to any condition or proviso contained in the mortgage there has been made or given a demand or notice either reijuiring payment of the monej's or any part thereof secured by sunh mortgage, or declaring an intention to proceed under Notice of sale and writ of summonH served pon- cui-'eitly. Mortgagee cannot aban- don notice of sale served by him. Advertise- ment is a proceeding within the t.et. Act does not apply where power of sale is exercisable without notice. ((') Perrii v. Pcrrn (1884) 10 P.R. 275. {w) (1897) 17 P.R. 51G; see Santley v. Wilde [1899] 1 Ch. 747; reversed [1899] W.N., C.A. 1.32. (.!•) Smith V. Bwwn (1890) 20 Ont. IGo. The original Act 47 Viet. (1884) (Ont.) c. 1(5, s. 1 provided that no further proceedings at law or i» cqiiifi/ should be taken. The words in italics were omitted from R.S.O. (1887) e. 102, s. 30. 18(j UKillTS AM) LIAmhlTIKS OF THK MOUHSACJEE. ■>' / i::: • II I! and I'xerci.st' the power of Hale"; and the act docH not ap])ly where the power of .sale is exerciHable without any notice (// ). vii. Cfmduct of Sale. Moit>,'aKee A uiortmiifee exerci.sini; a power (jf sale is not a trustee not a truHtoe „ , , , i ,. i for lor tlie niort^a,'or. purchase money arising from the sale after the mortgage debt is satisfied. This is so whether the mortgage is in the ordinary form or by way of trust for Hale(«). In Matthie v. Edivards (a) it was said : — " A mortgnj^ee having; a power of sale cannot, as between himself and the inorif?iigor, exercise it in a manner merely arbitrary, but is as between them lioiind to exercise some discretion; not to throw away the proj)erty, but to act in a prudent and business-like manner, with a view to obtain as larjje a i)rice as nuiy fairly and reasonably, with due dilijj;ence and attention, be under the circumstances obtain- able." And in Far rut' v. Farrars, Limited {aa) the court said: — " A mortgagee with a power of sale, thougli often called a trustee, is in a very different position from a trustee for sale. A mortgagee is under obligations to the mortgagor, but he has rights of his own which he is entitled to exercise adversely to the mortgagor. A trustee for sale has no business to place himself in such a position as to give rise to a conflict of interest and duty. But every mortgage confers upon the mortgagee the right to realize his security and to find a purchaser if he can, and if in exercise of his power he acts bo)ia file and takes reasonable precautions to obtain a proper price, the mort- gagor has no redress, even although more might have been obtained for the property if the sale had been postponed (b)." In Kennedy v. De Trafford {e) Lindley, L. J. said : — "A mortgagee is not a trustee of a power of sale for the mort- gagor at all; his right is to look after himself first. But he is not at ill) Canada Permanent IMlding Society v. Teeter (1889) 19 Ont. 156. (z) Kirkwood v. Thompson (18G5) 2 H. & M. 392; Locking v. Parker (1872) 8 Ch. 30; Re Alison, J'>linson v.Afounsey (1879) 11 Ch, D. 284. (a) (1846) 2 Coll. 465; 10 Jur. 347; S.C. on appeal sub. mm. Jones y. Matthie 11 Jur. 504. {aa) (1888) 40 Ch. D. 395 at p. 410. (6) See also Cholmondcley v. Clinton (1820) 2 J. & W. 1 at p. 182; Matthie v. Edwards (1846) 2 Coll. 465; Davcy v.Durraut (1857) 1 De G. & J. 535; rVarner v. Jacob (1882) 20 Ch. D. 220. (c) [1896] 1 Ch. 762 at p. 772, C.A.; affirmed [1897] A.C. 180, SALE UNDER POWER OF SALE. 187 liberty to look after hin own interest alone, and it Ih not ri^Ht, or proper, or le^al for him, either fra>uliilt'ntly or wilfully, or reckleHMly, to Httcrifice the property of the mort^aj^or; that is all." But jv sale under power of .sale may lie set aside if the conduct of the mortgagee is oppressive. This relief was granted in a ca.se in wliich the mortgagee exercised the power after a tender of principal and interest (the costs not liaving been ascertainefl) and the purchaser was aware of the facts (y advertisement in the newspapers and by liandbills; I should almost have said it is the invariable practice. I think the sale in (jucstion is the only exception that has ever come under my notice. It is the course of this court and the practice of everyone wlio desires to get the best i)rice that can lie gotten for the property to be sold." Where the mortgagees selling under powiu' of sale inserted no advertisement in a local new.spaper but only in a newspaper published in a town over sevent} miles distant, and the advertisement made no mention of any ((•) Farm)- v. Formrs, Limiled (18S8) 40 Ch. 1). :t!)5; Kcnncdii v. l)c Tmffonl [ISiXi] 1 Ch. 7()12, C.A. ; afiirmed [18'J7] A.(J. 180; Vhat- field v. VumihKjhitm {\m2) 'Jli Out. \WA. (J) liousfiM v. Uodijoi {\m\\) \y,\ Beav. 90. (A-) iMtch V. Furlouq (18()C) VI Gr. 30;t; soe Rirlnnond v. /wyjk.s (18(51) 8 Gr. r)08; rilompsoii v. Ilohiiau (1880) i!8 Gr. li'i; Ahlriclrv. Canitda J'eimaucnt Loan and SuvitKjs Co. (18'J()) 127 Out. 518; alhrmed i>4 Out. App. 19:!. (/) (18(51) 8 Gr. 508. SALE UNDER POWER OF SALE. 189 improvements, although there were valuable improvements on the land, it was held that the mortgagees had so negligently and carelessly conducted the sale that the property was sacrificed, and that they were liable for the difference between the amount realized by the sale and the amount which the evidence shewed the property would have brought if it had been properly advertised (m). The usual practice is to advertise the sale once a week for three or four consecutive weeks and to fix as the date for sale a day one or two weeks after the last publication of the advertisement. In some cases it will be advisable to advertise in a newspaper published in the neighbour- hood of the property to be sold : in other cases, as for instance where the property is a manufactory, the adver- tisement might be published to more advantage in one of the newspapers of the largest city in the Province. It is usual to post up or distribute about one hundred posters ; but it vv'ould seem tliat even fifty will be sufficient (o). The extended form of the power of sale in the short forms act(p) provides that the person exercising the power of sale " may sell and absolutely dispose of the said lands, tenements, her(Mlitaments and premises liereby con- veyed or mentioned, or intended so to be, or any part or parts thereof, with the appurtenances." And the implied power of sale given by the Act respecting AFort(ja(/c,s of Rail h\st((te{q) provides for t\ni HoXa of the ichole or any part of the property. Such a power of sale does not autliorize the sale of timber standing upon the mortgaged lands without the (///) Carruthcrti v. Ifaniilton Proridciit nnd Loan Socidi/ (1S9S) 12 Mail. U. (iO, followiiifj Alilricli v. Caiiadtt I'vrmnnrul Loan and Sarintjs Vonipamj (18{)()) '11 Out. .'i48; affirmed 1\ Out. App. l) K.S.O. (1897) c. 12(5, Schedule B(14). ((/) K.S.O. (1897) c. 121, s. 18. 190 RIGHTS AND LIABILITIES OF THE MORTGAGEE. nor ti'iide machinery. ..Vi Duty of mortpjagee to sell in parcels. Jjiahility of mortgagee land (r). But where the security is scanty the mortgagee may cut tlie timber subject to an account at the proper time (s). In Cholmeley v. Paxton (t) Best, C. J. said : — " They (the trustees) might sell different parcels of the estate at different times, and make separate conveyances of each parcel so sold; that is the extent of their authority. They cannot sell part of a parcel. They must not sell the land without the timber, or the timber without the land on which it grows." Nor may tlie mortgagee exercising his power of sale sell trade machinery apart from the mortgaged buildings (u). The principle may be stated thus: — The land may be divided vertically and parcels of it sold ; but it may not be divided horizontally (v). The mortgagee is bound to take proper precautions to ensure an advantageous sale ; and if the circumstances so recjuire he must sell the property in parcels and not in a block. The mortgagees in a mortgage containing two parcels of land, a farm with buildings, and some village lots with .stores thereon about three-quarters of a mile distant from the farm, sold the property en bloc, under the power of sale in the mortgage, for a much smaller sum, as shown by the evidence, than would have been realized had the properties been sold separately ; and it was held that the mortgagees liad not acted with due prudence and discretion, and that they were liable to the mortgagors for the amount that might have been realized (w). A mortgagee is chargeable with the full value of the ()•) Stewart v.Iinirsom (1892) 22 Ont. oSIJ. (s) Brcthour v. Bnwke (ISO.'J) 23 Ont.t.58; affirmed 21 Ont. App. 144. (/) (182.1) 3 Ring. 207 at p. 2i;]. [u) In re Yntrs, Balchchhr v. I'rt/e.v (1888) 38 Ch. D. 112. See Ex parte liarelaii, In re Joi/ee (1874) 9 Cli. 57G; Ex parte Brown, In re Reed (1878) '<) Ch. D. 389. (r) Stewart w.Ilwsom (1892) 22 Ont. 533. (»') Aldrieh v. Canada Permanent Loan if Savings Co. (189G) 27 Ont. 548; affirmed 24 Ont. App. 193. SALE UNDER POWER OF SALE. 191 mortgaged property sold, if from want of care and diligence it Ita.^ V)een sold at an undervalue (x). TDe power of sale in the short forms act {y) authorizes Power to sell the rrortgagee to "sell and absolutely dispose of" the exchange for mortg.'iL''' 1 lands, and the mortgagee may exercise the other land, power hy way of exchange for other land instead of by sale for money (z). A mortgagee selling und r power of sale may make Depreciatory spepi'i! conditions provided they are not unreasonably ^^ ^j^ig dri'vcci 'tory. In Falkiiev v. EqidUthle Reversloimvy Society (a) Kindersley, V.-C. said in reference to a condition that the vendor might rescind if unable or unwilling to answer objections to title : — " This, however, must be borne in mind, that though of course the object of the mortgagor is to rtalize tlif largest amount that can be got, yet it does not follow that conditions of sale, the effect of which would bo to obtain the largest possible amount at the sale, are always the best for the mortgagor; for they may In- such that after selling at a good price immense expense may afterwards occur, and after all you may fail in enforcing the contract, which would be to the detriment of the mortgagor. It does not follow, therefore, that because the conditions do to some extent tend to depreciate the jtrice that will be offered at the sale, they are conditions which are really to the detriment of the mortgagor. If such a condition as this were to the detriment of a mortgagor, it would be eijually so when the absolute owner is selling; ami yet we find that it is in practice a very ordinary and reasonable condition for an absolute owjier to introduce in his conditions, and one that without saying all conveyancers, Imtatany rate many leading conveyancers, consider extremely proper to be introduced when a mortgagee is selling under a power. The strong impression upon my mind is this, that the questifui is not simply whether such a coiulition may teiul to diminisli the number of buyers or the sum which any bidder may be disposed to give: hut whether it would tend to the detriment of the mortgagor or of an absolute owner, or be prudent in an absolute owner. If it would })e prudent in an absolute owner it is not imprudent as affecting a mortgagor." (.»•) \i(liiiiinl liaitk of Aiislmhisid v. Cniled Ilniul-bi-IIaxd etc. Co. (1879) 4 App. Cas. itoi. See Kcnuie v. Illork (IKyO) 2ii S.C.K. ;J5G. 0/^ K.S.O. (1897) e. 12G, Schedule B (14). (s) Smith v. im. I4:i; '_' l)e(J. .1. iS: S. 450. See Shair v. liiiinni (ISO,")) ■_• DeO. .1.^:. S. 4»J8: Kirkivood v. Tlmmpson (iSlw) '2 11. &M. 'M)l; 2 DeG. J. 6i S 613. (m) (1859) 7 Gr. 584. SALE IJNDEU POWER OF SALE. 195 ullowed to (leal for the equity of vedomption as a stranger; and if it be clear, as it no doubt is, that a mortgagee who gets in an ineum- hrance affecting tlie mortgage estate, is entitled to receive the full amount due upon such incumbrance, no matter how advantageous the terms upon which he may have acquired it, then I know of no principle upon which to hold a puisne incumbrancer incapacitated from ])urchasing the estate upon a sale by a prior mortgagee, under a power in his deed (»)•" And whore a second niort»jjaijee purchases under the power of sale contained in the tirst mortgage, lie is not- withstajiding such purchase entitled to collect, by virtue of the covenant contained in the second mortgage, the principal and interest due under the second mortgage (o). If the mortgagor purchases from the mortgagee selling inider the power of sale, this operates only as a redemption of the first mortgage and the mortgagor cannot set up the purchase against a second mortgage made by himself before the purchase. The purchase in such case inures to the benefit of the second mortgagee (j)). There is no fiduciary relation between co-mortgagors, tenants in connnon of the mortgaged lands, and one of the several co-mortgagors may purchase the lands from the mortgagee, if the exercise of the power of sale is bona fide, even although the price paid by the purchaser does not exceed the exact amount due for principal, interest and costs {q). ix. Convcyano' nftcr Sale under Poun: On a sale of mortgaged lands it is usual to reqiiire the piu'chaser to make a de^x^sit o[ ten per cent., that being the amount re((UU'ed on a Judicial sah- by the standing condi- tions of the court. But (he mortgagee has power to fix what sum he cho(xses as being a reasonable deposit (/•). (/() See lirou-)! v. WondhnuHC (18(58) 14 Or. G82. (<)) llarvon v. Yemvu (1883) 3 Out. r2(). (/>) Olter V. Lord Vmur (IS^fi) 2 K. & ,1. (iSO; (5 DoG. xM. & G. C;!8; lioxv. liriiUjUKtu (187.')) (I I Mi. 2;t4. iq) lu'.nncdii v. Dv TralTord [185)0] 1 Ch. liVl, C.A.; allirmed [1897] A.C. 180. (/•) Farrer v. Imcij, Harllaml « •J ^ Co -mortga- 2 gor may purchase. X K "■•^ ^ ETj :>I Terni-s of payment deposit. -:) 196 RIGHTS AND LIABILITIES OF THE MORTGAGEE. Mi'. Payment of deposit by cheque. Effect of taking security for purchase money. Mortgagee under obliga- tion to carry out sale. Determina- tion of power of sale. Conveyance. An agent of the mortgagee, selling under a power of sale is not negligent in accepting a cheque in payment of the deposit ; and the mortgagee will not be deprived of the costs of a sale which is rendered abortive by such acceptance (s). A mortgagee selling imder a power of sale may give time for payment of part of the purchase money without the consent of tlie mortgagor, but he must account for the purchase money as cash at the time of the sale, and cannot charge the mortgagor with a discount paid for cashing the mortgage or with costs thereby incurred. Bojal, C. said: — "The reason is that he can deal as he pleases about giving time on his own debt, and if as to any surplus he accounts forthwith to the mortgagor and i)ays him cash, that removes any objection on the part of the latter that the sale should have been a cash sale {I)." Where a mortgagee has sold the lands under the power of sale he is under obligation to carry out the sale ; he cannot without sufficient reason treat the sale as a nullity and fall back on the mortgage to enforce payment in other ways, as if the exercise of the power was a mere matter of form (u). A mortgagee's power of sale is not extinguished by reason of an ineti'ectual attempt to exertnse it (v). Where the mortgage is made in pursuance of the short forms act the mortgagee is empowered to sell and ab- solutely dispose of the mortgaged lands, and " to convey and assure the same when so sold unto the purchaser or purchasers thereof, his heirs and assigns, or as he, she or they shall direct and appoint (w)." (s) Farrcr v. Laaj, Hartland 'or (i/). And where an etjuitable mortgage is created by way of sub-lease the mortgagee may sell the nominal reversion {z). A deed under power of sale should recite the power, the default and the intention to sell and notice thereof. But it is not essential that the deed should purport to be made in exercise of the power. There must be the intention to sell under the power or to pass the property subject to the power, but the intention may be collected from other circumstances, or may be presumed. And where after a decree and final order of foreclosure, which proved to be invalid, the mortgagees sold the lands, reciting in the deed the foreclosure proceedings but making no mention of the power of sale, it was held that this was a valid exercise of the power {a). A deed in the usual statutory form with the usual covenants and without any recitals was held to have been made in exercise of the power of sale (/>). {x) R.S.O. (1897) c. Vl\. ill) AV Solomon and Mvarihcr' s Contrm't {im^) 40 (Jh. D. HOS. But not so ill Eiifjliuul in ciises where the jiower is conferred by the Con- ri'i/dncimi (in<( L ::>k < •4 Deed with . X erroneous *^ recital. ;s. /J C^ r'*» V'-i ,^ ""» "1* Deed without recital. -.J 198 lUdHTS AM) LIAIUMTIKS OF THE MORTdAtiEE. I'lotfiction of Section 21 ol" the Act rcspecthKj Moii^ of Real IMirehaHerH. i, . , , s • i <• n hmiU: ((') provKloH as ioIIowk : — 21. WhtMi a sale lias been effected in professed exercise of the powers lK'rol)y conferred, the title of the purchaser shall not be liable to b(f impeached on the (ground that no case had arisen to authorize the exercise of such power, or that such power has been improperly or irref^ularly exorcised, or that no such notice as aforesaid has been given; but any person daninitied by any such unauthorized, improper, or irregular exercise of such power, shall have his remedy against the person selling. Purchaser Tile eorrcHjDonding section of the Imperial Convey- English act.1 itnciiKj and Lau) of Property Act, 7rt()(i(/('.'^ of Reed Purchaser Ed(itc{]i) provides as follows regarding sales under the see to appli- statutory power : — cation of purchase 19. Receipts for )»urchase money fjiven by tlie person or ]K'rsons money. -^ exereisiiifif tlie power of sale by tlie preceding; section conferred, sliall be sufficient discharfjes to the i)urchaser, who sliall not be bound to see to the application of the i)urcliase money. By .section 14 of the Act irspcctuKj Mi)rti/(((jes of Real KnUtic (i) it is enacted that — 14. The bona fide payment of any money to and the receipt tliereof by any i)erson to whom the Siinie is payable upon any express or implied trust, or for any limited purpose, and such payment to and •c •J (/) Uodhnrn v. Swinney (1889) IG S.C.K. 297. ((/) Dicker v. Anncrstcin (187()) 3 Cli. D. iiOO. (/() K.S.U. (1897) c. V21. (i) R.S.O. (1897) c. 121. ,.^„.. IMAGE EVALUATION TEST TARGET (MT-3) <^ 1.0 1^ 1^ III 2.2 1.8 I.I L25 iU ■1.6 Photographic Sciences Corporation 23 WIST MAIN STRCET WEBSTER, N.Y. 14580 (7»6)«7i-4503 \ ) K.S.O. (1897) c. 120, Schedule B (14). iq) E.S.O. (1897) c. 121. 202 RIGHTS AM) LIABILITIES OF THE MORTOAUEp il ™ m Right of mortgagee to arrears of interest when pro- ceedings are judicial. Arrears of interest when proceedings are under power of sale. due in respect of the charge in consequence whereof the sale was made; and thirdly, in discharge of nil the principal moneys then due in respect of such churgo; and the residue of such moneys shall be paid to tli'j subsequent incumbrani;ers ai^cording to their priorities, and the balance to the jterson entitled to the property subject tu the charge, his heirs, executors, administrators, or assigns, as the case may be. In an action for foreclosure or redemption, if no sub.se(iuent incumbrancer intervenes, tlie mortjjajLjee is entitled to recover from the mortgajjor ten years' arrears of interest (r). As against a sub.se<(uent ijicumbrancer the mortgagee may I'ecover in an action foi- foreclosure or redemption only six years' arrears of interest, even if the mortgage deed contains a covenant for payment of tlie interest (.s). It has been held in England that a mortgagor y)ringing an action to redeem will be required to pay all arrears of interest (0- But a mortgagee who has exercised a power of sale, whether exj)ress or conferred by statute, is entithnl to retain out of the purchase money all arrears of interest ( w). And where the piu'chase money had been paid into court, and the trustees of the mortgagee j)etitioned for payment out of the money to be applied on nearly twenty years' arrears of interest, it was held tliat this was not a suit to recover money charged upon or ])ayable out of the land within the meaning of the statute and that the trustees were entitled to the moneys ( r). 'I'he case of ilil (»•) K.H.O. (1897) c. 72, s. 1; c. VXi, s. 17; Con-oil v. liohcrlsan (]S()H) 1.5 Gr. 17:»; Tai/lor v. Uan/mre (1H72) 1!> Or. 1!71; Hoiarcnv. Itnulhiirn (187')) l>2 (Jr. !»«!; AlUiu v. McTnrish (1878) 2 Out. App. 278. MaahHdld y. McDonald (1880) 11 Out. 187; McMiekinq v. (iibbons (181)7) 24 Ont. App. .^SCi; Itimilv v.Coppvn [189!)] 1 Ch. 72(5. (.s) McMickiufi v. d^ihiins (18!)7) 24 Ont. App. 380, overruling on this point JhiliDicif V. Vaimdiou I'arijk Udilwai/ Co. (181)1) 21 Ont. 11. (0 Dingle V. Coppci [1899] 1 Ch. 72(i. («) liitmutiih V. WuHfiU (18(ir)) L.K. 1 Kq. 418; In rv Mmshtwid, MarslijMd v. y/«/f/(/«.7,s(1887) 114 Ch. 1). 721 ; IHrnjIv v. Vopprn [1899] 1 Ch. 72(1; notwithstanding Mason v. lirmidhint (1803^;{3 Beav. 290. (i) Edmunds v. Wanijh (18G6) L.K. 1 Eq. 418. SALE INDEH I'OWEIl OF SALE. 203 KdrtiumlH V. TTif /«. 7L'{. (x) Tanner v. //m»v/ (IH'u) 2:i Beiiv. 5')"); Charles v. Jones (1HH7) 35 Cli. I>. r)44; Mai/nits v. Queensland National Hank (1K88) '.M Ch. 1). 4«t), C.A. (i/) (1892) 22 Out. 449, following Ilva1l}j v. O'Connor (1884) 5 Ont. 747, and referring to In re (Iriyson, Chrislison v. /tolani (1887) U6 Ch. D. 22:{. {:) (1895) 10 Miui. K. 5(}7. (a) (1884) 5 Out. 747. {b) (1899) 20 Ont. App. 232. 204 RKiHTS AND LIAHILITIES OF THE MORTGAGEE. m\ .•J • «:: : if Payment of marritHl woman's dower into court. MortRagco retaining HUrplUH moneyH liable to pay interest thereon. to pay the HurpluH, if any, to the moi'tga^'or, the mort- gagee is an express trustee of the proceeds of sale (c). The mortgagee is entitled to pay the surplus to the apparent owner of the equity of redemption, unless he has actual notice of other claims (d). It is .doubtful whether a mortgagee is entitled to pay the surplus proceeds into court under the provisions of the hnperUd Trustee Relief Act {e). But it has been held in England that where the mortgagee is in doubt as to the persons entitled to receive the surplus proceeds of sale he may take out an originating summons to have the (|ue.stion determined (/). A mortgagee holding any money out of which a married woman shall be dowable under the Dftwer Art (ent of the balance of costs unpaid (^). {e) Tenmiil v. Tnnchard (18G9) 4 Ch. 537. {/) R.S.O. (1«97) c. 136. (rfne v. Banham (1851) Hare 02; J'ernj v. Kcane (1836) 6 L.J.N. S. Ch. 67. (;>) In re Hairlhoruc (1883) 23 Ch. D. 743. ACTION FOR FORECLOSURE OR SALE. 209 iiiatters which are the uhuuI and ordinary incidents of a sale (q). The jurisdiction of the court in suclj cases is founded upon the existence of son>e contnictual obligation, express or implied, or some trust or eK THE MORT(JA(lEK. is hroii«;lit into court by ii prior ipi-uinhrancrr ho may obtain a Hale ofi pi'ojx'r terms; but i»' a subse(jueiit iucum- bram'or brin<;s an action and makes the prior incumbrancer a party thereto, tlie former is limited to his rijjht to redeem the earlier mortua<;e (/•). Tin* court will not order foreclosure a<;a5nst the Crown. When; the e(|uity of redemption is held by the Crown the mort«ja«jee may be allowed in default of payment to take possession until th«' C'rown shall tliinlv proper to redeem («'); or until satisfaction of the debt (.»). The court may direct a sale of the mortyaijed lands if the Crown consents or does not object (//). A mort^a<;ee of a railway is not entitled to either sale or foreclosure ; he is only «!ntitle) Municipality of Oxford \. Bailey (18(5()) 12 Gr. 27(5. (c) Bunk of Upper Canada v. Scotl (1858) 6 Gr. 451. ACTION Foil KOUECLOHUUE OK SALE. 211 fon'closure was ro(|uirt'ut it must be applied in reduction of the .second mortgagee'.s claim (()). A mortgagee may lose; his right to eitlu;r .sale or fore- closure by having .sold or parted with part of the mort- gaged property without the concurrence of a person to whom the e(]uity of redemption in the remainder has been conveyed. If, however, the sale is made inider a power of sale contained in the mortgage it will not affect the mort- gagee's right to bring an action for foreclosui-e or sale in respect of the remaining part (p). And where A. advanced .$2,000 to B. taking two mort- ' gages each for $1,000 on separate properties, and the mortgagee foreclosed one of the mortgages and then parted witli the property, it was held that this was no bar to a (k) Ont. Kule 382. (/) Crmo V. Close (1879) 8 P.R. 33. (»() Ont. Rule 383. ()i) Jiank of Upper Canada v. Scot t (IS'iH) (5 Or. 451 ; Lawrason v. Fitzqenild (1802) 9 Or, 371. But see Western Canada L. clo.se the mortgage making his co-mortgagees defend- ants, arid is entitled to judgment for foreclosure on default A person cannot be both plain- tiff and defendant. One of several mortgagees. 3 (q) Bald v. Thompson (1869) 16 Or. 177. (»•) Tliibotlov. Collar (1850) 1 Gr. 147. (s) ii.S.O. (1897) c. 138, s. 37. ' (0 »VavcU V. Mitchell [1891] W.N. 86; 04 L.T. 560. («) R.S.O. (1897) c. VI], H. 13. (r) Luke v. South Kcii.iiniJlnn Hotel Comjmxij (1879) 11 Ch. 1). 121. («•) Palmn- v. The Earl of' Carlisle (1823) I S. & St. 423; see Jtemer \. Stokes (1.S56) 4 W.U. 730. I :: :: I -. I: I;: 214 RIGHTS AND LIAHILITIES OF THE MORTGAGEE. in payment of the whole mortgaj^e debt in tlie proportions due to tlie several mortgagees respectively (x). A bill for foreclosure tiled by the survivor of three joint trustee mortgagees, who had no beneficial interest in the mortgage moneys, was properly brought, the representatives of the deceased trustees not being necessary parties (y). Trustees, Under the Devolution of Estates Act {z) all property and adminis- r^al and personal of a person dying on and after the tii'st trators. ([^y q£ July, 1886, devolves upon and becomes vested in his legal personal representatives from time to time Section 11 of the Ad respecting Movtgatjes of Real Estate (ti) provides as follows : — 11. Where a person entitled to any freehold land by way of mortgage has departed this life, and his executor or administrator has become entitled to the money secured by the mortgage, or has assented to a bequest thereof, or has assigned the mortgage debt, such executor or administrator, if the mortgage money was paid to the testator or intestate in his lifetime, or on payment of the principal money and interest due on the mortgage, or on receipt of the consideration money for the assignment, may convey, assign, release or discharge the mortgage debt and the mortgagee's estate in the land; and such executor or administrator shall have the same power as to any portion of the lands on payment of some part of the mortgage debt, or on any arrangement for exonerating the estate, or any part of the mort- gage lands, without payment of money; and such conveyance, assign- ment, release, or discharge shall be as effectual as if the same had been made by the person having the mortgagee's estate. Ontario Rule 193 is as follows : — 193. Trustees, executors and administrators may sue and be sued on behalf of, or as representing, the property or estate of which they are trustees or representatives, without joining any of the persons benefi- cially interested, and shall represent them ; but the court or a judge may at any time order any of them to be made parties in addition to, or in lieu of, the previous i)arties. In a suit brought by executors of a mortgagee to fore- close it was held that the heirs of the deceased mortgagee or the persons beneficially entitled under his will were not necessary parties {h). (r) Davenpovl v.. fames (1847) 7 Hare 249. ((/) Laiuhilev. McLaren (1892) 8 Man R. 322. • (r) R.S.O. (1897) c. 127, s. 4. (a) K.S.O. (1897) c. 121. (6) Lawrence v. Humphries (18G5) 11 Gr. 209. ACTION FOR FORECLOSURE OR SALE. 215 Where a mortgage i.s vested in trustees the cestui que trust or one of the cestais que triifit i"ay bring action for foreclosure of the entire mortgaged estate. But the trustees nmst be made parties to such an action (<•). Where a mortgage is taken in the name of one partner to secure a partnership debt and a bill is filed to enforce the security, the representatives, real or personal, of a deceased partner are not necessary parties (d). The Married Women s Property Act{e) enacts that every woman whether married before or after the act shall have in her own name against all persons whomsoever, including her husband, the same remedies for the protec- tion and security of her own separate property, as if such property belonged to her as a feme sole. When, therefore, a married woman advances on mortgage moneys which are her separate property, it is no longer necessary that she should sue for foreclosure or sale by a next friend, or that she should give security for costs (/). Ontario Rule 217 provides as follows : — 21'', Whsre a luiuitic or a person of unsound mind (not so found by inquisition or .judicial declaration) might before the j)assinp of The Ontario tntdcatnre Act, ISSl, have sued or have been sued, he may as heretofore sue by his committee or next friend, and may defend by his conrmittee or guardian. A lunatic so found by inc^uisition or judicial declaration {(j) and Ijaving a committee must sue by him. If the lunatic is conlined in a public asylinn it is discretionary with the Inspector of Prisons and Public Charities to institute proceedings on behalf of the lunatic (/i). The connnittee nmst not institute an action on behalf of the Cestui que trust entitled to foreclo- sure. Surviving partner may enforce mortgage. Married woman. Lunatic mortgagee. 4 u4 -4 a: (c) ff'ood V. fniliaiiix (1819) 4 Madd. 18G: 20 R.K. 291. (d) Stephens v. Simpson (18(i«) 12 Gr. 493. (e) R.S.O. (1897) c. im, s. 15. (/) Threlfall v. Ifitson (188:i) 8 I'.D. 18. (;/) K.S.O. (1897) c. 05, s. 8. (/() K.S.O. (1897) c. 317, ss. 53, 56; Mastin v. 3Iastin (1893) 15 P.K. 177. 216 RIGHTS AND LIAHILITIES OF THE MORTGAGEE. c: ■ i.i Suing by next friend. Assignee of mortgage. lunatic without the sanction of the court (i). If an action can be sliewn to be not to the benefit of the lunatic it will be stayed on application (j). If the lunatic has no committee he may sue by a next friend who may be any person willing to act (k). It is not necessary that the next friend should be a .solvent person (l). No person shall be added or substituted as the next friend of a plaintiff without his own consent in writing to be filed (m). The established practice is that a married woman cannot fill the office of next friend (h). The Ontario Judicature Act (o) provides as follows: — 58. (5) Any absolute assignment, made on or after the 31st day of December, 1897, by writing under tlie hand of the assignor (not pur- porting to be bj' way of charge only) of any debt or legal chose in action of which express notice in writing shall have been given to the debtor, trustee or other person from whom the assignor would have been entitled to receive or claim such debt or chose in action, shall be effectual in law (subject to all equities which would have been entitled to priority over the right of the assignee if this section had not been enacted) to pass and transfer the legal right to such debt or chose in action from the date of such notice and all legal and otiier remedies for the same and the power to give a good discharge for the same without the concurrence of the itssignor. Where an assignment of a mortgage absolute in form is made under this section tlie property in the mortgage and till riglit to sue thereon vest in the assignee alone, subject to the equities, if any, specified in the section ; and the assignee only can sue on the mortijage. Assignments made before the 8Ist day of December, (i) Dan. Prac. 6th Ed. 118. ij) Waterhomev. fVorsnop (1888) 59 L.T. 140. (k) Skimivrv. While (188;$) 19 C.L.J. 115. (0 '"^linrp V. Sharp (1807) 2 Chy. Ch. 244; Crumley v. lihiiffilon (1883) 3 C.L.T. 311. («i) Ont. Rule 20(5 (3). (h) Thynue v. St. Maiir (1887) 34 Ch. D. 465; Mastin v. Mastin (1893) 15 P.R. 177. (o) R.S.O. (1897) c. 51. ACTION FOR FORECLOSURE OR SALE. 217 1897, are governed by the Mercantile Aniendmcnt Act (})) which provided as follows : — 6. In the next succeeding six sections of this Act, "Assignee" shall include any person now being or hereafter becoming entitled by any first or subsequent assignment, or any derivative or other title, to a chose in action, and possessing at the time of action brought the beneficial interest therein, and the right to receive and to give an effectual discharge for the moneys, or the charge, lien, incumbrance or other obligation thereby secured. 7. Every debt and chose in action arising out of contract shall be assignable by any form of writing, but subject to such conditions or restrictions with respect to the right of transfer us are contained in the original contract; and the assignee thereof shall sue thereon in his own name in the action, and for such relief as the original holder or assignor of such chose in action would be entitled to sue for in any Court in this Province. Under the former act the action could not be maintained by the assignee alone unless he took the beneficial interest in the claim assigned (q). Where the assignment is not absolute but purports to be by way of charge only the assignor is a necessary party ; and he may bring action in his own name (/•)• The express notice in writing to the debtor required by the act is not essential as between the assignor and the assignee (.s), but must be given to enable the assignee to bring action on the mortgage assigned to him (t). If a sheriff' seizes a mortgage under a writ of execution Sheriff he may bring an action on it for sale or foreclosure (a) ; Qjorteacc (/)) R.S.O. (1887) c. 122. (f/) Wood v. McAli>inc (187G) 1 Ont. App. 234; Scarlett v. Xattrcsfi {mm) 23 Ont. App. 297. (»•) Turquund v. Fcaron (1879) 4 Q.B.D. 280; Priltic v. Coinicctieut Fire fns. Co. (1896) 23 Ont. App. 449; Durham v. liohcrtmu [1898] 1 Q.B. 765. («) Newman v. Xcwman (1885) 28 Cli. D. 674; Gorritige v. JrweJl (1886) 34 Ch. 1). 128. (t) In Nova Scotia it was held that an assignee of a mortgage was entitled to foreclose although he had paid the consideration for the assignment under circumstances alleged to have given him notice that the mortgage was Ijing attacked l)y creditors of the mortgagor: McLean v. Chisholm (1895) 27 N.S.K. 492. («) R.S.O. (1897) c. 77, s. 25. 4 'Ik 3 :4 •li 218 UUJHTS AND LIAHILITIES OF THE MORTGAGEE. Derivative mortgagee may sue in hi8 own name. i:: ■ !» ■i: ■ It Who should be defen- dants. but ho is entitled to a bond of indemnity ajjainst all costs and expenses to be incurred ( v). In National Provincial Bank v. Harle(w) it was held that an assignment of a mortgage with a proviso for redemption was not an absolute assignment within section 25, sub-section (i of the English Jadicature Ad, JS7'i, so as to enable the sub-mortgagee to bring an action in his own name for the recovery of the original mortgage debt. But this decision was disapproved of ir later cases {x) ; and the (juestion is now settled by the jud' nent of the Court of Appeal in England holding that a suV>-mortgage made in the oi'dinary form, with a proviso for redemption and re-assignment upon repayment, is an absolute assignment (not purporting to be by way of charge only) within the above mentioned section of the Judicature Act(y). But where the assignment of mortgage is by way of charge only it is not within the act and the assignee cannot sue in his own name (z). ii. (b) Original Dcfandants. In actions for foreclosure or sale all persors interested in the mortgage security or in the equ*^ ' vedemption should be made parties and unless all y: .• parties are befoi-e the court judgment will notbtg'.T xl('t). The general rule of practice is that parties to an action should be joined at its inception and that after judgment parties cannot be added {b). But an exception is mad(^ in the case (r) s. 21. ((f) (1881) (J (j.B.D. 626. (x) JiiirliHson V. HaU (1884) 12 Q.B.I). :J47; Tuncrcd v. Delagoa Bay and Eust Africa liailwun (188!)) 23 Q.B.I). 239. ((/) Durham Brothers v. Robertson [1898] 1 Q.B. 765, C.A. (r) Durham Brothers v. liobcrtscn [1898], 1 Q.B. 76r), C.A. (a) Palmer v. Earl of Carlisle (1823) 1 Sim. & St. 423; 18 R.C. 491. (h) Johnston \ . Consumers' Gas Company (1896) 17 P.K. 297. ACTION FOR FORECLOSURE OR SALE. 21(^ of mortgage actions by Ontario Rule 1!)() wliieh is as follows : — 190. (1) Where one or more of tlie persons interested in the eqnity of redemption are already defendants, and it is made to appear to the court or a judge either upon motion for that purpose, or at the trial or other disposition of the action, tliat by reason of their number or otherwise it is expedient to permit the action to proceed witliout the presence of the otlier persons interested in the equity of redemption, ' the court or judge may make directions accordingly, and may order such other persons to be made parties in the Master's office after judgment. (2) Where after judgment it appears that persons are interested in the equity of redemption besides those who are already parties, the court or judge may order such persons or any of them to be made parties in the Master's office upon such terms as may seem just. Notwithstanding this Rule the court will re(iiiire the Plaintiff's plaintiff to frame his action with diligence and to bring the prope"™* proper parties before the court in the first instance (c). persons t . . , original In one case it was said : — defendants. " If parties will not take the trouble (more or less according to circumstances) to bring the proper parties before the court, they have only themselves to blame, but they have no right to cast that labour upon the court and turn it into a court of inquiry for their con- venience (). Where the husbanu has joined in a mortgage made by a married woman, and the land mortgaged is such that the husband is entitled to be tenant thereof by the curtesy, he has the right to redeem and is a necessary party to an action for foreclosure or .sale () Parker v. fFillett (1889) 22 N.S.R. 83. (q) Jones V. Mvrcdtlh (1739) Bunb, 340, Com. GGl. (>■) Casbornc v. Smrfv (1737) 1 Atk. 603. (.s') See 119 to tenancy by the eartesy judgment of Osier, J. A. in Moore V. Jackson (1892) 19 Ont. App. 3«3 at p. 396. (0 R.S.O. (1897) c. 127, .-<. 4. Wife of mortgagor Husband of mortgagor. Personal representa- tives of mortgagor. :5 ;4 222 RKSHTS AND LIAUILITIES Ol' THE MORTOAOEE. J)oluti<>n of Estates Act. ;: :; n:: IHI It, m 1st (lay of July, I8S(), hIuiII clovolvc upon and become V(!sted in his le«(al personal representatives from time to time. Section l.S of the act provides as follows: — 13. (1) Keal estate of persons dyinjf on or after the 4th day of May, 1891, not disposed of or conveyed by exeeiitors or administrators within twelve jnonths after the death of tlie testator or intestate sliall, subject to The Land Titles Act in the case of land re|:;istered ntider tluit Act, at tlie expiration of the said period, whether probate of the will of the testator or letters of adininistvntJoii to tlie estate of the intestate has been taken or not, be deemed thencefoiward to be vested in the devisee or heirs beneficially entitled thereto, as such devisees or heirs, (or their assifjns, as the case may be,) without any convey- ance by the executors or administrators, unless such executors or administrators, if any, liave caused to be registered, in the registry office, or land titles office where the land is under the Land Titles Act, of the territory in which such real estate is situate, a caution under their hands that it is or may be necessary for them to sell the said real estate, or part thereof, under their powers and in fulfilment of their duties in tliat behalf; and in case of such caution being so registered, this section shall not ui)ply to the real estate referred to therein for twelve months from the time of such registration, or from the time of the registration of the last of such cautions if more than one are registered. Thus the executor or administrator is the repre.sentative of the realty unless (in the case of an administrator) his powers are confined to the personal estate of the deceased {a). Such I'epresentation continues for twelve months after the death of the testator or intestate, or if a caution or cautions be rejjistered then for twelve months from the time of registration of such caution or the last of such cautions. And if an action for foreclosure or sale be brouifht while the estate of the deceased mortiiairor is vested in his executor or administrator s\ich personal representative will be a necessary party to the action. After the expiration of the time limited by the act the estate will become vested in the heirs or devisees of the mortgagor beneficially entitled thereto or their assigns and they will then be necessary parties to the action. (h) See s. 61 of the Surrogate Courts Act, R.S.O. (1897) c. '^9:~ A person entitled to take out letters of administration of the estate of a deceased person shall be entitled to take out such letters limited to the personal estate of the deceased, exclusive of the real estate. ACTION FOK KOUKfl.OSlKE OK SALE. 223 Administra- tor (itl litem . An action foi t'on^cloHurc of n iuort<;afW (189:}) !;■) P.H. 121!>. (w)Meir\. Wilmm {\m[i) IWV.li.'Si. (.»•) Ke Cliamhliss and Canada Life Ansiirance Compan). If a trustee becomes bankrupt he cannot properly represent his beneficiaries in a fore- cloHiu-e action, and the beneficiaries should be made parties (c). But if a trustee unnece.s.sarily makes the ceMids que trust parties he may be ordered to pay their costs (d). If a mortgagor dies intestate since the Dcvolutimi of Kntates Act (V) the infant children of the deceased mort- gagor are proper parties to an action for foreclosure or sale (v) Camcrou v. PhiUipn (1889) 13 P.K. 78; Ri WiUiams and McKitniou (1891) 14 P.R. ;J3". (c) The Prince of WaJes etc. Co. v. Palmer (1858) 25 Beav. 605; Hill V. liouner (1858) 26 Beav. 372; Cameron v. Phillips (1889) 13 P.R. 78; Re Will iamn and McKinnon (1891) 14 P.K. 338. (a) Re Chambliss and Canada Life Assurance Co. (1888) 12 P.K. 649; Re Williams and McKinnon (1891) 14 P.K. 3:J8; see form of order appointing administrator ad litem before action, settled in Re Chambliss and Canada Life Assurance Co. (1888) 12 P.K. ()49. (h) Croldsmid v. Stonchewer (1852) 9 Hare App. xxxviii; Mills v, Jennings (1880) 13 Ch. 1). 639; 6 App. Cas. 698. (f) Francis v. I^arrison (1889) 43 Ch. D. 183. ((0 Re Coo]h: , Cooper v. Vesey (1882) 20 Ch. D. Gil, C. A. (e) R.S.<^>. (1897) c. 127. ACTION KOH KOKKtLOSrUE <)|t SALK. 225 and should he iiuulo (It'ftMidants in the Hrst iiistaiici'. It may be tliat tin* ivcord is coinpU'te as a matter of titl.^ with the general administrator as sole del'endant, hut the statute was not intended to derojjate from the ri<;hts of infant heneHeiaries and as a matter of prt-cedure they should he made ])artieH(/). Hut where the mortjfajfor devised and hecjueathed all his real and personal estate to his executors in trust, the latter were held to be the only necessary defendants to an action for foreclosure, althou»jh the widow and infant children of the deceased mortiraiTor were in actual possession of the mort<;a»;e(l lands (//). The j^i'neral rule is that a prior incumbrancer is not a proper party to an action for foreclosure or sale, the subse(juent incmnbrancer's ri'• /»- vesimeul Sorielji v. Hi/sop (1892) 21 Ont. .')77 ; Canada Landed and National Inrestnient Co. v. Sharer (189")) 22 Ont. App. 377. ACTION FOR FORECLOSURE OR SALE. 227 garjee cannot reciuire him to pay until the .security has been realized and the deficiency ascertained (o). Where a lunatic or a person of unsound mind (not .so liunatic found by incjuisition or judicial declaration) is a necessary party defendant to an action for foreclosure or sale, he nni.st l)e represented by his connnittee if he has one. If he has not been so found by in(]uisition or judicial declaration, or if he has not a connnittee, he defends by a guardian (id litem (p). The Official Guardian will be the guardian ad litem unless the court shall otherwise direct (q). Where the lunatic or person of unsound mind has been found to be so by the court, the Official Guardian may be served without order or notice to the person whom he is called upon to represent (r). If no appearance is entered to the writ of sunnnons on behalf of the lunatic the plaintiff' may apply to the court for the appointment of a guardian ad litem (.s). If the action proceeds without proper representation of the lunatic defendant the pro- ceedings are not merely irr(!gular but void (t). When a defendant who is liable on the mortgage Mesne , . i I • • 1 -i. f 1 • • L-n I purchasers de.su'es to clann mdenunty trom his .successor ni title who of mortgaged has agreed to iiuhiinnify him against payment of the ^"■"fl**- mortgage moneys, the defendant may, if the person liabh; to indemnify him is not a party to the action, .serve a third party notice under Rule 209 ; but if the person liable to indemnify him is already a defendant a notice may be served luider Rule 215, and the relief .sought may be iriven in the .same action. The Rules in force in Ontario before June, 1 894 (u), were not as wide as the present Rules, and the Court of Appeal held that it was not proper (o) Ti'ctcr V. St. Joint (IBO:}) 10 Gr. 85. (/;) Out. llule 217. (q) Ont. Rule 218 (3). ()•) Uolffx.Oijilr;) {\HHS) V2V.\i.('Ai). {s) Ont. Uule 218. (/) IVfiniork v. Priciir (1887) 12 P.T?. 2()4. {>() Consolidutotl Rules of 188S, 328, 329, 330, 331, 332, 333. '•H •J ■ ■*«» 228 RKJHTS AND LIAUILITIES OF THE MORTGAGEE. »'i : .1"' i:: ■ 3 ■i::;>t:r; • ••• ^;;i Several assignees of equity of redemption. Execution creditor of mortgagor. Wife of assignee of mortgagor. under the i'onner Rules to join an defendants in an action for forecloHure the intermediate purciiasers of the equity of redemption, and to order each one to pay th(> mortgage debt and indemnify liis predecessor in title (v) ; but it seems clear that such relief may now be given between co- defendants as well as between a defendant and a third party. Where the mortgaged lands have been sold to several persons the purchasers, however numerous, must be made parties to the action. The mortgagee is entitled to insist that the whole of the mortgaged estate shall be redeemed together (w). When an execution against the mortgagor is prior in point of time to the plaintiff's niortgage, and the plaintiff seeks to iiave the execution postponed, the execution creditor must be made a party defendant in the first instance to the action for foreclosure, and it is not sufficient to add him in the Master's office ; but the plaintiff in one case was allowed to set aside his judgment, add the execution creditor as a part} , and amend so as to raise the question of priority (x). When the moi'tgagor assigns his equity of redemption the wife of the person to whom the assignment is made is not a proper party to an action by the mortgagee for foreclosure (y). For dower attaches only to such e(juita})le estates as the husband dies seised of (z). But it would seem that if the owner of the equity of redemption sliould die after judgment but before final order of foreclosure, his wife would have a rigiit to redeem. In that case she (/•) ffalker v. Dirhson (1892) L>() Out. App. 9(i ()(•) Pclo V. Hammond (18tj0) 29 Beav. 91; Bm-klcij v. Wihon (IHGl) 8 Gr. 5G(i. (.)■) Lulhi V. L<>u»). A simple contract creditor who has not recovered judgment and issued execution has no right of redemption and is not a proper party (n). not be added. ii. (d) PerfioiM dcqitiriiuj Interests pendente lite. Section 97 of the Ontario Judicature Act (o) provides that the instituting of an action or the taking of a pro- ceeding in which any title or interest in land is brought in (juestion shall not be deemed notice of the action or proceeding to any person not being a party thereto until a certificate of lis pendens has been registered. But no cer- tificate is reA iii. Writ of Sumvions. A mortgagee has a riglit to begin an action for fore- closure tlie day after default ; and though such a course may be extremely sliarp, he carmot be refused liis costs (r). A mortgagee with power of sale covenanted that no sale or notice of sale should be made or given or any means taken to obtain possession of the mortgaged premises until after three months' notice to the mortgagor demanding payment. It was held tluxt such notice was unnecessary before liling a bill to foreclose (.s). If a mortgagee sues on the covenant in the mortgage without claiming foreclosure or sale he may specially indorse the writ of summons under Ontario Rule 138. If the defendant fails to appear the plaintiff' may sign final judgment under Rule 575 for the amount claimed in the indorsement togetlier with interest and costs. If the defendant appears the plaintiff' may move under Rule G03 for leave to sign hnal judgment. The special indorsement must be to the effect of the forms contained in the Appendix to the Ontario Rules. The forms provided by tlie Rules should be substantially followed in order to entitle the plaintiff' to judgment under {p) Eohson \. Argue (1878) 25 Gr. 407. {q) Wnllbridge v. Marlin (1868) 2 Chy. Ch. 275. Section 100 of the Ont. Jud. Act, R.S.O. (1897) c. 51 is as follows:— Where a certificate of lis pendens is vacated, any person may deal in respect to the land, as fully as if such lis pendens had not been registered, and it shall not be incumbent on any purchaser or mortgagee to enquire as to the facts alleged in the suit, and the rights of such purchaser or mortgagee shall not be afifected by his being aware that the allegations made in the suit were in fact made. (r) Bennett v. Foreman (1868) 15 Gr. 117; see Leeds and Hanley Theatre of Varieties y.Broadhent [1898] 1 Ch. 343, C. A. (s) Latnb v. McCormack (1857) 6 Gr. 240. ACTION FOR FORECLOSURE OR SALE. 233 Rules 575, 590 or 003, but a departiu-e therefrom in form only will not att'ect the plaintiff's ritjhts (O- In an action by the assio'nee of a mort^aoje for the amount due on tiie eovonant it is not necessary to state in the indorsement on the writ that notice in writinu' of the assignment has been given to the mortgagor ( c )• Where a plaintiff" seeks foreclosm-e or sale the writ of sununons must be indorsed in accordance with the forms provided in the Appendix to the Rules (v). The indorsement on the writ should contain a descrip- tion of the mortgaged lands. But where the jilaintiff" by mistake omitted front the description of the lands in the writ of sunnnons a parcel included in the mortgage, an order was made, after judgment and final order of foreclosure, vacating the final order and directing an amendment of the writ and all the proceedings (;<')• If a plaintiff' seeks delivery of possession it is important that tlie claim should be contained in the indorsement on the writ of sunnnons or in the statement of claim. Formerly where the judgment did not contain an order for possession an order might have been obtained even after final order of foreclosure or sale {x). But it would seem that under the present Ontario Rules the order for possession nmst be included in the judgment ; and to entitle the plaintiff to (t) Anon. W.N. (1876) 53; PhcrriU v. Forbes (1880) 8P.R. 408. (k) Satchwell v. Clarke (1892) 60 L.T. 641; 8 Times L.R. 592; see Ont. Jud. Act, R.S.O. (1897) c. 51, s. 58, sub-s. 5. (v) Ont. Rule 141; Canadian Bank of Commerce \. Bricker (1881) 1 €.L.T. 729; Hill v. Sidcbottom (1882) 47 L.T. 224. {w) Clarke v. Coojyer (1892) 15 P.R. 54. (x) Ont. Con. Rule 341 of 1888, now repealed, was as follows: Nothing in these Rules contained shall prevent any plaintiff in an action of foreclosure or redemption or for the immediate payment of the mortgage moneys from asking for or obtaining a judgment or order against the defendant for delivery of the possession of the mortgaged property to the plaintiff either forthwith or on or after a final order for foreclosure or redemption, as the case may be, and such an action shall not be deemed an action for the recovery of land within the meaning of the Rules. Action by assignee of mortgage. Indorsement when action for fore- closure or sale. Possession should be specifically claimed. 5 234 UIOIITS AXl) IJAUILITIES OF THE MORTGAGEE. such jiidgiiient pos.siJHHion must be claimed by the writ of summons or tlie statement of claim {y). iv. Venue. i Local venue in foreclosure actions where possession claimed. ■t Ontario Rule 520 provides that where an action is for, or includes a claim for, the recovery of land, the place of trial to be named in the statement of claim shall be the county town of the county in wliich the land is situate. A former Rule now repealed provided that there should be no local venue for the trial of any actions except an action of ejectment {z). It was held under that Rule that an action by a mortgagee for foreclosure, payment and posses- sion of the mortgaged premises was not an action of ejectment within the meaning of the Rule relating to local venue, and that therefore the venue need not be laid in the county in which the lands are situate («). It is to be observed, however, that the words of the present Rule expressty refer to actions in which the recovery of lands is sought and the Rule would seem to include foreclosure actions in which possession of the mortgaged lands is claimed. If the Rule fixes a local venue in actions of foreclosure in which possession of the lands is claimed a difficulty arises which was thus referred to by the late Mr. Dalton, :M.C. :— "If a plaintifl' has a mortgage containing lands in several counties, securing one debt, a case common enough, he cannot bring several foreclosure suits. It is plain when you consider the rights of parties in a foreclosure that tliere can practically be but one suit. The mortgagor must be entitled to redeem all the lands at once by one payment. There must be one trial if a trial at all, and one account taken. Then if there cannot be such a multiplication of proceedings where must be the venue {h) ?" (»/)-8ee Wills v. £«/ (1888) 38 Ch. D. 197. As to extending the claim contained in the indorsement on the writ of summons by claiming possession in the statement of claim see Smythe v. Martin (1898) 18 P.R. 227. (c) Ont. Jud. Act (1881) Rule 254; Con. Rule 653 of 1888. (a) Seymour v.IJeMarsh (1880) 11 P.R. 472. (ft) Seymour v. DeMarsh (188C) 11 P.R. 472; see Kendell v. Ernst (1894) 16 P.R. 167. ACTION FOR FORECLOSURE OR SALE. 235 V. Pleadings. Ontario Rule 244 provides as follows : — ' 244. Wherever a statement of claim is delivered, the plaintiff may therein alter, modify or extend his claim without any amendment t( the indorsement of the writ. This Rule applies only where the statement of claim is actually delivered and does not apply where the defendant fails to appear and the plaintiff' effects service by posting up a copy of the pleading in the ofHce in which the proceedings are being conducted (c). And if the defendant does not appear the plaintiff" cannot in his statement of claim extend the claim indorsed on the writ of summons. Thus the plaintiff' cannot by claiming payment on the covenant in the statement of claim enlarge the scope of the writ which has not been indorsed with sucli a claim (c?). But where the writ of smnmons in an action by a mort- gagee against the mortgagor was indorsed with a claim for an injunction to restrain waste and the statement of claim went fiuiher and claimed to recover possession of the land in respect of which the injunction was sought, it was held that what was claimed by the pleading was an "extension" of what was claimed by the writ within the meaning of Rule 244 and that such extension was allowable (e). Where the plaintiff" in his statement of claim does not ask for an order for payment of the amount due under the covenant, the court will not make such order, even although the mortgagor does not enter an appearance to the writ (ee). And if tmder such circumstances a judgment is entered, containing a personal order for payment of the Claim beyond in- dorsement on writ. Order for payment of mortgage debt not made unless asked for in statement of claim. r. "3 (c) Ont. Rule 330. (rf) Law V. Philbi) (2) (1887) 35 W.R. 450; 50 L.T. 522. See Gee V.Bell (1887) 35 Cli. D. 160. (e) Smythe V.Martin {18dS) 18 P.li. 227. (ee) Wethered v. Cox (1888) W.N. 165; Faithfull v. Woodlcy (1889) 43 Ch, D. 287. 236 RIGHTS AND LIAHILITIES OF THE MORTGAGEE. ■»« Title cliiiiiK'd must Iw tically. Invalidity of niortKHK" deed must V»e raisi'd in pleudiiif^s. Also any special matter affect- ing the account. Fraud must be distinctly pleaded. Statute of Limitations. Miorti;a<^i! (Uibt, the ju(l«jiiK'nt is t'l-ronou.s and will be anu'iidcd (/). Wlicri' a party to an action rclie.s upon a title to the lands in (picHtion, it is not sufficient to alle<^e that by virtue of divers mesne acts and mesne as,surances the title has become vested in hiui, but he must allej^e the nature ol" the detids and dociiments on which he relies (ry). Questions such as the invalidity ot" the niort<;a;L(e deed slxjuld be raised by the pleadin*:;s and adjudicated upon by tlie court on the hearint^ ol" the cause. Contentions of this kind cannot be raised in the Master's office (h). In an action for foreclosure the mortcf*>ii()init ih««m1 not imy friiotiona) jmrt of inHtalnitsnt. Mortf^ajjoe culling in ])rincipal itound by his I'lecfion. ju'tion uikhi jiuyin;; into couri tho amount tlu'U duo for principal, iutcrcHt luid costs (/<). Where tlic plnintiff seeks to itcovci' oi» the covenant tlie Rule floes not Hpply, even altlion<;li the whoh' of tlio niort;^a<,'e money has hecomo due hy virtue of an accehira- tion clause (//). Nor does the Rule apply to procc(!(lin^s under a power of sale (/•)■ When; a defendant moves to dismiss the action tinder this Huh* he eaiuiot Ix; reipiired to ])ay a fractional part of an instalment of interest ; it is wutKcient to pay the interest up to tin; last <;ale day (.s). In an action of foreclosure upon a mort<;a<,'e which contains a clause by which the ])rincipal falls due upon (hifault in ])aynient of any instalment of interest, if the })laintiH' claims tlie benefit of the clause and calls in the whole niortiraire del)t, he is bo»ui Man. (1891) c. 48; Ejeetment Aet New Bruns. Statutes (1894) c. 10; Mortgagors' nelief Act, U.S. B.C. (1897) c. 141. (q) ffilson v.Camphell (1893) If) P.R. 254. ()•) Jtolwrt.son v. Hethcringtnn (1888) 8 C.L.T. 141. (s) Strachan v.Murneji {]Hr)H) r, Gv.'dlS. (0 CriLso V. Hoii(>ar, or liy his Htiitcint'iit of (Iffoiico ndinits tlm Jtx«'r(< tlu< defendant discliiiiiiH any interest in tlie niortj^afjed premises, or where no statement of defence ii- delivered, or wht^re notice is Tded and served disputing th(( amount of the plaintilT's chiim only, or where in his appearance the defenchmt states that h«« disputes tiii' amount of tlie phiintilT's claim only, tlie pla'ntilT may sifjii judfjineiit, in which may Ik* incluih'd, where claimed, any relief for which a claim may be iiulorsed upon the writ under Kule 141. (2) The reference in Huch cases, when re«|ulred, shall he to the Master In Ordinary, or a Local Master. (;() Where the indorsement on the writ claims foreclosure, ami the defendant tiles a notice requiring; a sale and a certificate of the deposit of the sum of sfKO, as required by Rule ItHl, the judfjment shall be for sale, tojjether with such other relief, if any, as tlie plain- tiff is (entitled to, ui>on the indorsement. (4) Where in the defendant's ai>pearanc«' or otherwise a notice disputing; the amount r)f the jdaintitT's claim only is filed, the defeii- tlaiit filiiif^ the same shall be entitled to four days' notice of tht* takin}^ of the acconr.t. Where no reference as to iiicumi)riiiiees is desired, such account may be taken liy the oflicer sif^'iiinj^ judf^ment; and where a reference as to incumbrances is desired, then by the Master to whom the action is referred. The findin}^ of the oflicer taking the accouTit as to the amount due on sif^ninf;; judt^ment shall ]>e suitject to api>eal to a Judfje in (Chambers in tln^ miinnei' prescribed by Hulo 7(i7, and such ofH). A prdiclpc judgment may be varied or set aside on motion in chambers (c). Ontario Rule oUo provides as follows :■ — • 696. In an ordinary action for redemption, foreclosure or sale where the defendants, or some of the defendants, are infants and no defence is set up, till' action shall not be set down to be heard in court; but (if) Palqi V. Fliut (187!)) 48 L.J. Chy. COG. (x) Jiliig V. Frrtman (18(57) 1 Chy. Ch. a.lO. (y) I'lmhi V. Parks (188!!) !) I'M. 424. (r) nih/rcss v. Crawford (1888) 12 P.K. Gr)8. («) ()7it. Uulcs 141, HiXi. The English practice is to order payment within one month after the date of the ('hief Clerk's certificate; Farrer w.Lmrij (18S;t) 'J;') Ch. I). (ilKi. {b) Chiimhrrhii)! v. Arm.stroiKj (1882) 9 P.K.21L'; Out. Rules If), ()28. (c) Trust cV' Loan Co. v. McCarthy (1883) 19 C.L.J. 188: a C.L.J. 2GG. ACTION FOR FORECLOSURE OR SALE. 241 after the statements of defence are filed, or after the time for filing the same has expired, the plaintiff, upon filing affidavits of the due execution of the mortgage, and of such other facts and circumstances as entitle him to Judgment, may move for judgment in chambers, upon notice to the guardian ad litem of the infants and the other defendants' solicitor, if any. Wliere infants are deiV'nrima facie evidence of the state of such account, and an affidavit or oath shall not be required from the mortgagee or any intermediate assignee, denying any payment to such mortgagee or intermediate assignee, unless the mortgagor or his assignee, or the party proceeding to redeem, denies by oath or affidavit the correctness of such statement of account. 762. The Master's report shall state the names of all persons who have been made parties in his office, and who have l)een served with the notice or ai)pointment hereinbefore jjrovided for, and the names of such as have made default, and shall set forth the amount of the claims, and jji'iorities of such as have attended, and these latter shall be certified as the only incumbrancers upon the property. 763. Subsequent accounts shall, from time to time, be taken, sub- sequent costs taxed, and neeossary proceedings had, for redemption by, or foreclosure of, the other parties entitled to redeem the mort- gaged promises, as if specific directions for all these purposes had been contained in the judgment. ACTION FOR FORECLOSURE OR SALE. 245 Jl 754. If the judgment directs a sale instead of foreclosure on default in payment, then on default being made, and an order for sale obtained, the property shall be sold, with the approbation of the Master, who shall settle the conveyance to the purchaser in ease the parties differ about the same; and the purchaser shall pay his pur- chase money into Court, to the credit of the action, subject to further order. 766. The purchase money, when so paid, shall be applied in payment of what has been found due to the plaintiff and the other iiicunitn'aucers (if any), according to their priorities, together with subsequent interest, and subsequent costs. 386. In default of payment according to the report in a foreclosure or redemption action, a final order of foreclosure may be granted agaiust the party making default on an c.v parte application. In an action to foroclo.se an equitable niortoaoe by deposit of title deeds the judgment should declare that the plaintiti' is entitled to a niortgaoe on the lands com- prised in the deposit and agreement, or in the agreement where thei-e is no deposit of title deeds, and should direct that in default of payment of the amount found due the defendant be foreclosed, and that he do convey the lands to the plaintiff* free from all equity of redemption ( r). If the mortgagor is a married woman the judgment for foreclosure or sale will be in the usual form. But where judgment is recovered against a married woman on a covenant by her in a mortgage deed the form of the judgment should be that the plaintiff do recover the debt and costs against the defendant, such sum and costs to be paj^able out of her separate property as there- inafter mentioned, and not otherwise ; and execution is to be limited to the separate property of the said defendant not subject to any restriction against anticipation, unless by reason of section 21 of The Married Women's Property Act{iv) such property shall be liable to execution notwith- standing such restriction (x). Form of judgment where mort- gage equit- able. Judgment against mar- ried woman for fore- closure or sale; or on covenant. "3 4 (v) Lees v. Fisher (1882) 22 Ch. D. 283, C.A.; Soton on Decrees, 5th ed. 1695. (w) R.S.O. (1897) c. 163. (x) Seott v.Morleij (1887) 20 Q.B.D. 120; see McMichael v. Wilkie (1891) 18 Ont. App. 464 at p. 472. 246 RIGHTS AND LIABILITIES OF THE MORTGAGEE. i;::i ••ut ■i Special provisions in judgment. Reference may be unnecessary. Entry of judgment. Judgment for possession may be enforced by writ. It may be necessary to insert .special provisions in the judgment. Thus, where the defendants pleaded tender, the Master was directed to make enquiry on this point, and further directions and costs were reserved {y). And wliere the defendant pleaded payment in full the costs were re.served (z). Where the defendants were rival claimants to the equity of redemption it was referred to the Master to take the usual accounts and report, reserving Hit. right to redeem to one of the defendants, with a proviso that if before the day appointed for payment the other defendant .should establish his right to redeem, then he should redeem ; and it was directed that the Master should not delay his report upon the account pending the enquiry((x). Where there are no subsequent incumbrances the plaintiff will not require a reference ; the account will be taken when judgment is entered. If the plaintiff takes a reference unnecessarily he will not be entitled to the costs of it (b). But if he fails to take a reference he cannot subsequently obtain an interlocutory order adding parties in the Master's office (c). When the action is commenced in a local office the judgment must be entered in that office ((/). Where the plaintiff asks in the indorsement on the writ of summons or in the statement of claim for immediate delivery of possession, and recovers judgment therefor, he is entitled to delivery forthwith, and may enforce the judgment by writ of possession (e). (y) Peers y. Allen (1872) 19 Gr. 98. (2) Gooderham v. DeGrassi (1850) 2 Gr. 135. (a) liumsei) v. Thompson (1860) 8 Gr. 372; Robinson v. Dobson (1865) 11 Gr. 357; Cayley v. Hodgson (1867) 13 Gr. 433. (6) Purdy v. Parks (1883) 9 P.R. 424. (c) migress v. Crawford (1888) 12 P.R. 658. (d) Ont. Rule 635. (e) Ont. Rule 846. ACTION FOR FORECLOSURE OR SALE. 247 i viii. Proceedings in Masters Offi,ce. The scope of tlie Master's authority is thus discussed Powers o£ by tlie Supreme Court in Bickford v. Grand Junction Ry.Co.if):- "The general practice of the Court of Chancery of Ontario is that a question such as this, the invalidity of a mortgage deed, should be raised by the pleadings and adjudicated on by the court at the hearing of the cause. If the mortgagors are to be at liberty to say in the Master's office that there is nothing due on the mortgage deed because it was beyond the power of the corporation to make it, why should they not also be heard to say there is nothing due because the deed was obtained by fraud? Unless some arbitrary line is to be drawn, the riglit of the Master, under such a reference, to inquire into the validity of the deed would be co-extensive with that of the court at the hearing embracing every case in which a mortgage might be impeached upon u ground which would have entitled the mortgagor to have liad it wholly set aside by decree, or to have had the mortga- gee's bill for foreclosure dismissed. We know of no authority for any such delegation of the functions of the court to the Master." Powers of Master on reference. Ontario Rule 067 provides as follows : — 667. Under a judgment or order of reference, the Master shall have power : (a) To take the acounts with rests or otherwise ; [h) To take account of rents and profits received or which, but for wilful neglect or default, might have been received ; (c) To set occupation rent; (d) To take into account necessary repairs, and lasting improve- ments, and costs and other expenses properly incurred otherwise, or claimed to be so; (e) To make all just allowances; (/) To report special circumstances; {g) And generally, in taking the accounts, to inquire, adjudge, and report as to all matters relating tliereto, as fully as if the same had been specifically referred. Before the reference is proceeded with an appointment Original in the prescribed form nmst be served upon all persons served^ with made parties before the. judgment or order {g). appoint- ment. If an original defendant has not entered an appear- ance to the action service of the appointment upon him may be effected by posting up a copy in the office in which 4 :•> ■y..» (f) (1877) 1 S.C.R. 696, at p. 725. (fif) Ont. Rule 748. 248 RIGHTS AN]) LIAIULITIES OF THE MORTGAGEE. ■i: :: ■ i ... i J... Service of appointment where defen- dant out of the jurisdic- tion. Service of notice on added parties Party added in Master's office may apply to discharge judgment on order. the proceedinjjjH are beinj^ conducted. Where several defendants have failed to appear a copy should be posted up for eacli one (h). Where in an action in Ontario for redemption or sale parties living out of the jurisdiction were personally served with the writ of summons and statement of claim and did not appear, it was held that the practice should be regu- lated by analogy to Ontario Rule 4G7 then in force (i); and it appearing tliat other parties in tite same interest as the absent defendants would be represented in the Master's office an order was made dispensing with service on the absent defendants of the warrant and other proceedings in the Master's office (k). The Master shall direct all persons who appear to have any lien, charge or incumbrance on tlie property in ques- tion, subsequent to the mortgage, to be made parties, and to be served with notice (I). Any party served with notice may apply to the court at its weekly sittings, within fourteen days after service of the notice, to discharge, add to, vary or set aside the judgment or order making him a party {ni). If a person added in the Master's office as a subse- quent incumbrancer claims to be prior to the plaintiff he may either move to set aside the judgment or order, or after the Master's report is made he may appeal therefrom. (/() Ont. Rule 330. (i) Now Ont. Rule 334: — Where it appears upon the hearing of any matter that by reason of absence, or for any other sufficient cause, the service of notice of the application or of the appointment cannot be made, or ought to be dispensed with, such service may be dispensed with, or any substituted service, or notice by advertisement or other- wise may be ordered. See Ont. Rule 3. (fc) Smith V. Houston (1892) 15 P.R. 18. (I) Ont. Rule 746. (w) Ont. Rule 747. See Holmested and ijungton's Ont. Jud. Act, 2nd ed. 913. ACTION FOR FORECLOSURE OR SALE. 249 But it would seem to be the better practice to move against the judgment or order (n). If parties added in tlie Master's office suljmit to the judgment or order and do not move against it, they cannot in the Master's office attack the mortgage for fraud or as being ultra vires (o). But there is no necessity and no right on the part of subse(|uent incinnbrancers added in the Master's office to alter or vary the judgment for the purpose of questioning and reducing the amount of a charge fixed as between the plaintitl' and defendant, it being open to tlie added parties in tlie absence of notice of the charge to raise the (juestion of its value in the Master's office ( p). Where a person lias been duly served with a notice or an appointment and neglects to attend at the time appointed, the IVIaster shall treat such non-attendance as a disclaimer, and the claim of such person shall be thereby foreclosed unless otherwise ordered (). Tlic practice! of the court iti Kii<,daiid on takin<; the snl)HC(|ucnt account is to nvjuii'c th( oi rson next cutillcd Lo I'cdccui to pay sulisniucnt interest on th<' whole ainonnt found (hie hy the last report for princii)al, intei'cst and costs, as one accunnilatiMl c()iisoli/f.v (1844) 1 U.C. .hir. ])t. I, 282; Strcrl v.O'Ucilhi (18(i8)2 Chy. Ch. 270; Cnhnac v. Hurir (18()9) 2 Chy. Ch. 394. (/) Ntrer.l v.O'Jicilli) (18(i8) 2 Chy. Cli. 270; Calimr v. Dnrir (]8(i9) 2 Chy. Ch. .394; Camrron w. Cumvron (1809) 2 Cliy. Cli. 375; Canmla J'rrnKinrnt Loan .y- Sdrimjs Co. v. l>ann (1893) Miui. ,'iO (J.L.J. ()8: MonkUonsi; v. Coriumilion of licdfonl (1810) 17 Ves. 380: Edwdrils v. Cnnliirc (1810) 1 Miukl. 287; iVIiittlon v. Crailork (183()) 1 Koe. 2(57; nrrw'i'n y.Aiislin (1838) 2 Kce. 211 ; /<,'///■<■ v. Hanson (1840) 2 Hciiv. 478; (iddard v. Hornh)/ (1841) 1 llii. 251; Coombc v. SIcwart (18')!) 13 Bciiv. 111. Ill* ■U-n 254 UKJHTS A\D LIABILITIES OF THE MORTGAGEE. ::3| $ Extension pendinp appeal. Fixing; day for redemp- tion. (a) Inactions for fore- closure. Where con- flicting claims to priority one period allowed. time was oxtended upon tlie terms of tlie mortgagor paying a sum sufficient to cover the excess of interest tliat the moj'tgagee was re(|uired to pay(77i). Where the mortgagee receives rents of the mortgaged lands between the date of the Master's report and the time fixed for payment, tlie mortgagor is entitled, imless under special circumstances (n), to an enlargement of the time (o). The time may be enlarged pending an appeal ( ^9). The appli- cation to extend the time may be made in chambers (q). The Master appoints a day for redemption. If he omits to do so, an order appointing a day may be obtained in chambers (r). The practice in foreclosure actions is to allow six months to the persons first entitled to redeem. The tendency of the court is to give one period for redemption, and not to allow successive opportunities to redeem. But the persons wlio have a subsequent right of redemption may according to priority be allowed further periods to redeem (s). Where, however, tliere are conflicting claims as to priority among several subsequent incumbrancers, one day only will be allowed to all the defendants without pre- judice to their priorities inter se(t). (»() Howard v. Mamm (1859) 1 Chy. Ch. 27. (n) Coleman V. Llcwellin (1886) ;}4 Ch. D. 143, C. A. ; Welch v. National Cycle Works (1886) SS L.T. 673. (o) Garlick V.Jackson (1841) 4 Beav. 154; AkJcn v. Foster (1842) 5 Beav. 592; Ellis v. (iriffitlis (1844) 7 Beav. 83; Buchanan v. Orecnway (1849) 12 Beav. 355; Patch v. Ward (1867) 3Ch. 203; Allen v. Edwards (1873) 42 L.J. Ch. 455. (;>) Finch v. Shaw (1855) 20 Beav. 555; Bank of Upper Canada v. ro«ro/ (1862) 8 U. C.L.J. (O.S.) 328. (q) Anon (1853)4 Gr. 61. ()•) King v. Connor (1863) 10 Gr. 364. (s) Smithctt v.Heskcth (1890) 44 Ch. i^. 161. In Manitoba it was held that only one period of six months shonld be allowed for redemp- tion to the mortgagor and subsequent incuml)rancers, the English practice being followed in preference to that of the Ontario courts: Bice V. Murray (1884) 2 Man. R. 37. (0 Barllett v. Bees (1871) L.R. 12 Eq. 395; Plntt v. Mendel (1884) 27 Ch. D, 246; Smithctt v. Hesketh (1890) 44 Ch. D. 161; Western Canada Loan <)'• Savings Co. v. Ueimrod (1892) 28 C.L.J. 185. ^ ACTION FOR FORECLOSURE OR SALE. 255 The mortgagor is not entitled to more than one period of six montlis for redemption, and successive periods will not as a rule be granted at his request, although they may be granted at the recjuest of subsequent incumbrancers. In Piatt V. Mendel (u) Chitty, J. said : — "It is an anomaly to say that the mortgapfor by any dealings with the equity of redemption subsequent to the first mortgage should be able to gain for himself a right to a further time to redeem." Where portions of the mortgaged lands are conveyed away by the mortgagor, only one day for payment will be given to all the persons interested in the equity of redemption {v). Where a mortgage provides that in case of sale the mortgagee on receipt or tender of a certain proportion of the purchase money shall release the part sold from the mortgage, each purchaser is entitled to redeem his own part, on payment of the stipulated proportion of the money, and the Master should appoint one day for each of the several purchasers to redeem his respective portion {iv). A subse(iuent incumbrancer and all persons claiming under him are entitled to but one period of redemption (.r;). Where there are several judgment creditors made parties in the Master's office, they will be allowed only one period for redemption, otherwise the foreclosure suit might continue for years (/y). Formerly, where successive redemptions were directed, the practice was to allow three months from the taking of each successive account. But it is now provided that when it becomes necessary to fix a date for redemption Mortgagor entitled to one period only. Where several pur- chasers one period only allowed to them. Several pur- chasers with riglit to redeem their respective parts. Subsequent incumbran- cer and persons claiming under him. Further period, if allowed, one month. 3 4 I'*' 5 (u) (1884) 27 Ch. D. 24G. {v) Hill V. Forsyth (IS.IO) 7 Gr. 4G1. {w) Davis V. fVhite (1809) 1(5 Gr. 312. (x) Lovcday v. Chapman (187')) 32 L.T. G89; Becvor v,Luck{lHi}7) L.li. 4 Eq. 537. ill) Hairs v.Hilh'oat (1^2) Ki Beav. 130; Anku/h v. fVilson (18G7) 1 Chy. Ch. 389; but see Carroll v. Uopkitis (1854) 4 Gr. 431. 256 RIGHTS A\D LIABILITIES OF THE MORTGAGEE. I.. .»;; 'K' i:: -.1 t.H> S-i» (h) Fixing day for redemption after the lapse of tlie first period of six months, the further time allowed shall be one month (z). Where the judgment for sale does not shorten the period of redemption, the Master fixes one day six calendar Master's report. Preparing report. t i \ »" Report where infant entitled to • J money in court. Contents of report. in action for nionths from the day of the report for the mortgagor to redeem the plaintifi^" and all subsequent incumbrancers who have proved clainxs in the Mastei-'s office. If the mortgagor fails to redeem a final order for sale may be obtained (a). As to the meaning of the terms " report " and " certificate " of a Master it has been said : — "Though we apply the term "report" to the more lengthened productions of a Master, and the term "certificate" to his shorter statements, it is, I think, clear that all his reports are certificates, and all his certificates are reports" (h). The certificate of a Master as to any matter arising upon a reference is a report upon the matter and subject to the same rules as an oi^linary report (c). As soon as the hearing is concluded the Master shall so inform the parties attending on the reference, and shall make a note to that efi'ect in his book. He shall then proceed to prepare his report and shall cause a warrant to settle to be served on vhe parties (d). Ontario Rule 690 is as follows : — 696. Where, by a report, any money in court is found to belong to infants, tiie TJiistt-r shall require proper evidence of the ago of the infants to be given before him, and shall in his report state the date of birth and age at the time of his report of each of such infants or shall certify specially his reason for not so doing. And Ontario Rule 752 is as follows : — 762, The Master's report shall state the names of all persons who have been made parties in his office, and who have been served with the notice or aiipoiiitmeut hereinbefore i)rovidpd for, and the names of such as have made default, and sliall set forth the amount of the claims, and priorities of such as have attended, and tliese latter shall be certified as the only iiieumbrancers ui)on the property. (c) Ont. Kule :im. (a) Ont. Kule 754. (h) Clirinirl y.Mnrliii (IS.l.'l) 4 Sim. :$4n, per Shadwell, V.-C. ((•) J{(: MolitUij, Jhrkrsv. Tirntuu (18iKi) 17 F'.K, L'47, ((I) Ont, Kule (iS7, ACTION FOR FORECLOSURE OR SALE. 257 Master may let in further evidence before sign- ing report. Delivery out of report. Filing report An application to )jt in further evidence may be made to the Master at any time before he signs the report (e). After tlie report is signed, the Master is functus ojficio, and the application mu.st be made to the court (/). And after signing the report the Master should not certify further as to any matters that were before him on the reference, unless recjuired by the court to do so (g). As soon as the report is prepared it shall be delivered out to the party prosecuting the reference, and if he declines to take it then it may be delivered, in the discretion of the Master, to any other party applying therefor (h). The report is to be Hied in the office in whicli the proceedings were connnenced (i) and notice of filing must be given forthwith by the party filing it (j). Ontario Rule 7G9 is as follows: — 769. Every report or certifteate of a Master shall be filed and shall become absolute at the expiration of fourteen days from the date of serving of notice of filing the same unless notice of appeal is served within that time. If all parties niterested in the report conserit, but not Immediate , , . , 1 1 J • 1 • 1 1 ,1 confirmation otherwise, an order may be obtained in chambers connrm- of report. ing the report before tlie expiration of the fourteen days (k). ix. Appeal from Master's Report. The report must be filed liefore notice of appeal there- Filing report from is served (i). Report when absolute. 4 :.■► :> (e) Re Ritchie, Sewcri/ v. Ritchie (1870) 23 Gr. 6(5. (/) (y Donahue \. Ucmbroff (1873) 9 U. C.L.J. 312. (j/) Roscbatch v. Pany (1879) 27 Gr. 193. (/*) Ont. Rule G91. (i) Ont. Rule 093. (j) Ont. Rule 094. (k) Patterson v. Gilbert (1888) 12 P.R. 652. (/) Hayes v. Hayes (1881) 8 P.R. 546. 2o8 RIfiflTS AND LIABILITIES OF THE MORTGAGEE. lit f :it:;;; rill :1 Scope of appeaL Notice of appeal. Enlarging the time for appeal. Application to enlarge time should be prompt. Application in chambers on notice. No written objections or exceptions need be taken before the Master previously to an appeal ('/7).). On the appeal no point can be raised that was not raised on the reference (n). Notice of appeal from a Master's report must ha given within fotu'teen days from the date of serving notice of filing the report (o). But the court or a judge nmy enlarge the time appointed by any Rule for taking anv proceeding ; and the enlargement may be granted after the expiration of the time appointed ( p). In Re Manchester Economic U.S. (q) Brett, ]\I.R. said : — " I know of no rule other than this*, tliat tlie court has power to give the special leave, and exercising its judicial discretion is bound to give tlie special leave, if justice requires that that leave should ])e given (/■)■" The applicant must account for the »if7»(«H rtJMJ! ir«« (1889) 13 P.R. 232. («) HamiUon v. Tweed (1883) 9 P.R. 448. (r) *erc»-)vV//(M-. /). Where th«i report or certificate appealed from is a report or certificate of a ruling upon a (juestion of practice not made in the exercise of the Master in Ordinary's jurisdic- tion in chambers, an appeal lies to a judge in court (e). This would seem to be the proper interpretation of Ontario Rule 771, for although it appears to include all appeals from the JMaster in Ordinary that do not lie to the Divisional Court, yet appeals from his rulings when exercising his jurisdiction in chambers are regulated by Rule 7(i7 and, therefoi'e, do not come under this Rule. The appellant nuist give seven clear days' notice, setting out the grounds of appeal, an). Where an application is made to stay proceedings Subsequent under this Rule, the judgment may afterwards be enforced by order of tlie court upon subseciueut default in payment of a further instalment of the principal, or of the interest (q). The defendant is not entitled to relief under the Rule when the action is on the covenant and the whole of the mortgage money has beconie due by virtue of an accelera- tion clause (r). xi. Sale ProeeeiUngs ui Masters Offcee. Where the judgment is for redemption or sale, then in Order for default of payment by the time limited for redemption a ^"'^" final order for sale may be obtained in chambers (s). And when tlie judgment is for foreclosure, a subsetjuent incum- brancer added in the Master's office may, after judgment D :> (wi) Williams v.Haun (18G4) 10 Gr. 553. in) Romanes v. i^ems (1875) 22 Gr. 4G9. (o) Out. Rule 389. (/)) Carroll v. Hopkins (1854) 4 Gr. 431. (7) Ont. Rule 390. ()•) Wilson V. Campbell (1893) 15 P.R. 254. (s) Ont. Rule 754. 262 RIGHTS AND LIABILITIES OF THE MORTGAGEE. ■«""■ 3; r: Mode of sale. Conduct of sale. :;ii Proceedings in Master's office. Advertise- ment. and boforo the MaHter'.s report Ih settled, obtain on prwcipe an order for sale instead of foreclosiu'e (t). The Master may cause the property, or a competent part thereof, to be sold, either by public auction, private contract or tender ; or part by one mode and part by another, as he may think best for the interest of all parties (u). ITsually the plaintiff' has the carriage of the judgment or order and therefore the conduct of the sale. But the conduct may be given to a defendant (v). If the parties wisli to bid, the proper course, it would seem, is to direct the .sale to be conducted by some solicitor not concerned for any of the parties (iv). The solicitor for the party having the conduct of the sale shall take a warrant or appointment from the Master and serve it upon all necessary parties (x). At the time appointed he shall bring into the Master's office a draft advertisement (?/), which must contain the following particulars : — (1) The short style of cause ; (2) That the sale is in pursuance of a judgment or order of the court ; (3) The time and place of sale ; (4) A short and true description of the property to be sold ; (5) The manner in which the property is to be sold, whether in one lot or several, and if in several, in how many, and what lots ; (6) What proportion of the purcha.se money is to be paid down by way of deposit, and at what time or times, (0 Ont. Rule 382. ((() Ont. Rule 716. (/') Hcu-itf V. Xatison (1858) 7 W.R. 5. ()/•) liamsaii v. McDonald (1880) 8 P.R. 283. (.r) Ont. Rule 719. {y) Ont. Rule 720. ACTION FOR FOKECLOSUKE OH SALE. 2(i'.i ccipe and wliotlier the veHidue of hvicIi purchase money is to be paid witli, or witliout interest ; (7) Any particulars, in which the proposed conditions of sale ). The advertisement shall be in.serted at such times and in such manner as the Master may appoint (e). All parties may bid without taking out an order for Right of the purpose, except the party having the conduct of the \q 1,;^ sale, and except any trustees, agents or other persons in a fiduciary position ; and where any parties are at liberty to bid, it shall be so notified in the conditions of sale (d). As a general rule the party having the conduct of the sale will not be allowed to bid, but the conduct may be transferred to another party ; and if all parties desire to bid, it would seem that they may do so if the conduct is :> {:) Ont. Rule 721. (rt) See Holinested and Langton's Out. Jiid. Act, 2nd ed. 881 and cases there cited. (/)) Ont. Rules 722, 724. (c) Ont. Rule 72(5. (d) Ont. Rule 723. 264 RIGHTS AND LIABILITIES OF THE MORTGAGEE. lit >.',. 'i:«is:,::n Agreement to purchase. Affidavit of auctioneer. Motion to set aside stale. Payment of purchase money into court. Settlement of convey- ances. transfeiTed to a solicitor not concerned for any of the parties (c). An order for leave to bid may be obtained in chambers. Wiien the sale proceedings are in the office of the Master in Ordinary he may make the order by virtue of his jurisdiction in chambers (/). If the property is .sold a written agreement shall be signed by the purchaser at the time of sale. The deposit shall be paid to the vendor or his solicitor at the time of sale and shall forthwith be paid into court in the name of the purchaser (g). After the .sale is concluded the auctioneer shall make an affidavit as to the result (/<) and the Master shall prepare a report on the sale (i). If any party objects to the sale he may move in cham-' bers to set it aside (j). The motion should be made before the report is confirmed. After the contirmation of the report the purchaser may pay his purchase money into court (k), and may have a reference as to title (I). The Master shall settle all necessary conveyances in case the parties differ, or ii case there are any per.sons under disability interested in the sale (m). As to mode of paying money into court (e) liamsay v. McDonald (1880) 8 P.R. 28:$: see Taylor v. Sliar}> (1885) 3 Man. It. 4. In Halstcd v. Conklin (1885) 15 Man. R. 8, leave was granted to tlie plaintiff to bid all parties consenting thereto, but the court remarked that it was objectionable that the party conducting the sale should be a bidder. (/) Ont. Rule G98. (flr) Ont. Rules 728, 729. see Ont. Rule 405 et scq. (/() Ont. Rule 730. (i) Ont. Rules 730, 731. ij) Ont. Rule 732. (k) Ont. Rule 733. 0) Ont. Rule 735. (w) Ont. Rule 734. In every case in which the court has authority to order the execution of a conveyance of property, a vesting order may be granted which shall have the same effect as a conveyance : Ont.Jud.Act, R.S.O. (1897) e. 51, s. 36. ACTION FOR FOUECLOHUKE OR SALE. 2«;r> tlu Ontario Rule 88(5 provides as I'ollow.s : — • 386. If the purchane money is iiisufllcient to ]my what has been found due to the plaintiff for prineiiial, interest and coHts, Huhseipient interest, and subsequent costs in an action for sale, the plaintiff (where the mortpiffor or person liatile to pay the debt is a defendant, and such relief is claimed) shall be entitled, on an vx }initc application to the court or a judjj;e, to an order for the payment of the deiieieucy. xii. Final Order of Furrrlosinr. If the jud^niuiit i.s for sale and tlie sale proves abortive, a final order of foreclosure may be obtaintjd on motion in chambers (/?.). The court may in such a case allow further time to redeem ; if time is allowed one month would appear to be proper (o). The special circumstances of the case should be taken into consideration in decidinc; whether the further period for redemption should be lon<4' or short (/)). Where in a foreclosure action default is made in payment by the time fixed for redemption, a final order of foreclosure may be ^'ranted against the party makin<; default on an ex p•)• A mortgagee whose title has not been perfected by foreclosure or otherwise is not entitled to an order for partition or sale under ( hitario Rule i)oC) (s). The final order is generally granted on an ex purle application but in some cases notice of the motion will be Order for ))aynient of (leticiency litter sale. Fiiuilorderof foreclosure i'fter abor- tive sale. Final order on rx parte application ; but notice may l)e required. IM (ji) Goodall V. niirroirs (1859) 7 Gr. 449; Odell v. Doty (1808) 1 Chy. Ch. 207; Girdkstoiie v. Guiui (1868) 1 Cby. Ch. 212. (o) Goodall V. liurroirs (18r)9) 7 Gr. 449; Ilcnoi v. Kirr (1890) 10 C.L.T. 69. See Ont. Rule 382. (/)) Scarlett v. liinici/ (189;i) 15 P.R. 283: in this case the amount to be paid was about 4*150,000, and three months further time was allowed. ((/) Ont. Rule 385. (r) Senhousc v. Earl (1752) 2 Ves. Sen. 449. (s) Mulligan v. EcnderslioU (1896) 17 P.R. 227, following Train v. Smith, before Spragge, C. 14th "^-piil, 1875, not reported; see Laplantc v. Seamen (1883) 8 Ont. App. 557. 20(1 IlKJUTS AN'I> MAIUFJTIKS OF TIIK .M( )UT(iAy the I'f^port that a ilt>t'*>ii"fore the day fixed for redemption, the affidn ' - st show that notice of credit was ^iven to the . by wliom 'he Day to show morti^a^e debt was payable (,t'). In 7. on (ind CanaKuin Loan itn<1 Arjcvcy Co. v. Evcrltt (/y) ^pi ,i;^ge * "., although disapproving of tlie practice, directed that a imal order of Notice of credit. cause. (0 McCnrmick V. McCormh-k {\^1A) P.R. 208. («) Portman v. Smith (1860) '1 C.L..T. 167. (r) CoUhison y.Jeffreij [1896] ] Ch. ()44. («') Camda Sclllcr.s' Loan Co. v. Itcnoiif {IS.97) "» B.C.R. 243. (j) Ont. Rule ;{87. Where iji a mortgage suit a payment is made during the time fixed for redemption and no notiee of credit is given there sliould be an order referring it to the Master to fix, or the order itself mav fix a new day for payment: Mmiitoha .)'• Xortli Ifcut Loan Co. v.Smhrll (188r)) 2 Man. R. ll'"). ()/) (1881) 8 P.K. 489. It has not been the practice in Ontario for some yenrs to reserve a day to sliow cause in either the judgment or the final order. The interests of the infant are deemed to be suffi- ciently protected by the Official Giiardian. See supra p. 241. ACTION FOU K;mE(;L(»S('RE OK HALE. 207 forocloHuro slioiild re.sorvo a day i'or infant dot't'iidants to .show cauH»! al'tci- attainiii;,' majority. So lont; as tiic final onlcr of foniclosurc; remains in KiTfct of forces it is a complete l)ar to tlm rij^lit to i'(!d»'(!in ; hut the „,• |,„.,.. nioi't<^a<(or may apply to .set asiflc^ the oiuh-r an?or nliould not he allowed to reileein at all; hut it was form only, jiiHt aH the orif^inal deed was form only; for the courts of e(iiiity soon decided that notwithstanding the form of that order they would after that order allow the mortgagor to redeem. That is although the order of foreclosure ahsolute appeared to lie a final order of the court, it was not HO, l)Ut the mortgagee still remained liable to he treated as mortgagee, and the mortgagor still retained a claim to he treated as mortgagor, subject to the discretion of the een overstated, this relief may be afforded to the mortgagoi' (d). This relief has been granted even as against the purchaser from the mortgagee after the final order of foreclosure. But there must be strong grounds for dis- turbing the purchaser. Thus, if the purchaser bought the lands within a short time after the final order was made and with notice of the fact that they were of nmch greater value than the mortgage deVjt, the foreclosure might be opened as against him. But the court would be disinclined to interfere with a person who purchased the lands many years after the date of the order and without notice of any circumstances which might lead to oix'uing the fore- closure (e). And where the decree directed foreclosure, and a final order was nuide dismissing the bill instead of foreclosing the plaintiff, and where, further, the report of the Master allowed the plaintiff only six weeks to redeem, although the decree gave liim six months, it was held that these were such irregularities as to give notice to the purchaser from the mortgagee that there was something unusual in the proceeding, and the mortgagor was allowed to redeem (/)■ The mortgagor must make his application to open the foreclosure within a reasonable time. SVhat is a («0 Phitl wAnlibrulifc^iHGr,) 1" Gr. 10'); see Ford v. U'astcll (1847) 6 Ha. 229. ((!) Patch V. ffaid (18o7) 3 Ch. 203. (e) Campbell v. HohjIamI (1877) 7 Ch. 1). 16(i. (/) Johnston v. Johnston (1882) 9 P.H. 259. ACTION FOR FORECLOSURE OR SALE. 269 reasonable time will depend upon the nature of the property (,7). The terms are in the discretion of the court. The niorti^a<(or must satisfy the court that he will be able to redeem if furtlier time is allowed, and he may be re(piired to pay tlu! interest and costs by an e.u'ly date ; or to pay the costs forthwith ; or to j>;ive security for costs in the event of default (It). The final order of foreclosure is no bar to proceedings by the mort<^a(^ee to recover on the covenant, so lontj as he retains tl:^e mort^jaged lands and is in a position to restore theuj to the mort^^atror. If, after the final order of fore- closure, the mortgagee sues the mortgagor on the covenant, the mortgagor aciiuires a new right to redeem even although he has parted with the ecpiity of redemption, and is entitled to a reconveyance on payment of the mortgage debt(/!). But if, after the final order of foreclosure, the mortgagee has parted with the mortgaged lands, or any part thereof, so that he is unable to reconvey the lands to the mortgagor, lu^ will be restrained from proceeding on the covenant (j). Terms upon whicli fore- cloHuro opened. Nothwith- stiindiiig foi'cclosure mortf;aji:ee may sue on covenant. {(/) CamphcU v. Jlolyldiid (lS77j 7 Cli. I). KiU. (//) See Trinili/ ('oUv(ji: v. IliU (18H.-.) 8 Out. 280; Holford v. Tate (18-);-)) 1 K. & .i. 077; iriiitHrlil y.Jinho-ts (1801) 7 Jur. N.S. 1'2G8; Howard v.Marara (18')'J) 1 C'liy. Ch. 'J7. (i) LockUarl v.Hardif (1840) !) Heav. ;i4<); Palmer w. Hcmlric {\»m) 27 Beav. 349; 128 Beiiv.':i41 ; Kinmird v. Trollopv (1888) ;{9Ch. I). 0;{0. (j) fMckhart v. Ifardi/ (184()) !» Hcnv. ;S4!); Goii'land v. (Utrhult (1807) i:i Or. r)78; Ilnr'uUam v. Gait (1801)) 10 Or. 417; Clialjkld v. Cumiiui/hani {\H\y2) '2;iOnt.\'hi. CHAPTER XVII. Limitation of Actioms for Fokeclosuhe and Possession. I., .», . , •It: :l:"' ,>••' .•:: Ill '••.. ,1* ■: IS' :» \ -J'1 f " r »iit. App. (i(i, jier Maeleniian, .I.A. at p. 80; liitnrich- v. liaru-ick (1874) 21 (ir. Ifi); Flrtrhcr v. lioihliii (1882) 1 Out. 1.")"). An action i'or redemption is also an action for the reeoverv of land; see Fduhis v. Harper (I88G) 11 s.c.u. (iiii). ■ • {<}) (i Win. IV. c. v.], s. 2. [e) Doc (I. Chipimn v. nrfrhrr (18.-)4) I! All. (New Bruns.) 23; but see Itoc <(. Foils v. Joins (18(52) T) All. (New Bruns.) 252. (tr) Loiit((>ii 011(1 Midlinid Ikn\k v, Milvhell [1899] 2 Cli. Uil. 272 KKUITS AND LIABILITIES OF THE MORTGAGEE. I"" "I r:; Accrual of rig)it. Breach of condition. Future estates. Vacant land ; statute does not hejjiii to run until possession actually taken. ii. When the Right Arises. Section 5 of the Real Property Limitation Act provides that tlie ri^jfht of entry, or di.stre.ss, or to bring an action to recover tlie hind, shall be deemed to have first accrued at the time when the person claimino- tirst became entitled to possession. When the person claiming has become entitled by reason of any forfeiture or breach of condition then such right shall be deemed to have first accrued when such foi'feitui'e was incurred or such condition was broken. This is provided by sub-section }) of section 5 which is as follows : — 6. (9) Where the person claiming such land or rent, or the person through whom he claims, has become entitled liy reason of any for- feiture or breach of condition, then such right shall be deemed to have first accrued when such forfeiture was incurred or such condition broken. Where the estate is a future estate, as an estate in reversion or remainder, the right of action shall be deemed to have accrued when the estate became an estate in possession. This is provided by sub-section 1 1 of section 5 which is as follows : — 6. (11) Wliere the estate or interest claimed is an estate or interest in reversioji or remainder or other future estate or interest, and no person has obtained the possession or receipt of the profits of such land, or the receipt of such rent, in respect of such estate or interest, then such right shall be deemed to have first accrued at the time at which such estate or interest became an estate or interest in possession. The right to bring an action in such a case continues for ten years after the estate has become an estate in I)ossession, even although the action on the covenant has ])een in the meantime barred by lapse of time (/). The statute does not begin to run against a mortgagee oi' land in a state of nature until actual po.ssession is taken by .some per.son not claiming under him (r/). (/) HuiiiU V. Wilkin-wu (1888) 38 Ch. D. 480. (g) Ihickunm v. Slcimrl (1897) 11 Man. K. (I'J.i; Smith v. A/of/f/ (18,14) 9 Ex. nO'J; Aijciini Coitipitun ^'- ^ft»)'t (1888) V,\ App. Cas. 793; Drhniri/ V. ('(DKidiaii 'I'ac'ifK' Rdihrhi/ Co. (1891) 'Jl Out. 11; Vmt see Dor d. MrLroii v. risli (1849) 5 U.C.K. L>9r). LIMITATION OF ACTIONS. 273 by in The possession of the niortoagor is not adverse to the riglits of the mortgagee, and the statute does not begin to run aijainst tlie niortijao;ee until liis ritjht to brinij tlie action arises (h). Wlien the mortgage is in the ordinary form the riglit of action arises wlien tlie mortijaji'or lias made default in pa^'inent of principal or interest. If, however, the mortgage deed does not contain a provision that the mortgagor shall be entitled to remain in possession, the time will begin to run from the date of the mortgage (i). In the case of a mortgage payable on demand, the right of action arises immediately upon the execution of the mortgage, and a demand is not necessary ( j). Where after the statute has begun to run against the owner of lands in favour of a trespasser the owner mort- gages the lands, this gives the mortgagee a new right of entry and creates a new starting point for the statute, so that the mortgagee may maintain an action against the trespasser within the statutoiy period, although the right of the mortgagor may have been barred (k). A purchaser of lands sold under a powp" of sale contained in the mortgage is a person claiming under a mortgage within the meaning of section 22, and the statute begins to run against him from the time of sale {I). The registration of a discharge of mortgage has the ert'ect of revesting the title in the mortgagor and gives the statute a new starting point in favour of the mortgagor ttgaiiLst a person claiming possession adversely (jh). (//) Doc d. Jones V. jnUiams (1836) ') A. & E. 'J9I ; trri.wn v. Vise (1842) 3 J)r. & War. 104. ((■) Doc a.ltoylaucc v. Liglitfoot (1841) 8 M. & \V. 553. (j) Re J. Brown's Estate, lirowii v. Jiroiot [1893] 2 Ch. 300. (fc) Cameron v. Walker (1890) 19 Ont. :12. (0 Cameron v. IValker (1890) 19 Ont. 212; see also Doc d. Iladilcleii V. Musseii (1851) 17 Q.B, 373; Heath v. I'lujli (1881) (J q.B.D. 345; 7 App. Cas. 235. (m) Henderson V. Henderson iWJG) 23 Oat. App. 577. Default of payment. Mortgage payable on demand. Execution of a mortgage gives new starting l)oint. Sale under power gives new starting point. Kegistration of a diseliarge gives a new starting point. :% 274 RIGHTS AND LIABILITIES OF THE MORTGAGEE. ... Ml r: r"* 1 M-" Acknow- ledfjraent by poi'Sdii in possi'ssioii. '!"■ It must lie in writing. In Eiif^linid a dirt'erent conclusion was reached by the Court of Appeal in Thornton v. France {n). In that case the owner of an undivided moiety of lands, which had been durinj;- the previous eleven years in the sole possession of the owners of the other moiety, executed in 1880 a niort- {^age of his moiety. In 1890 there being no change of possession he conveyed to the plaintiff" subject to the mortgage, which the plaintiff" afterwards paid off". In an action for a declaration of title it was held that the plaintiff' was not a " person claiming under a mortgage " within the meaning of the statute, and that a mortgagee does not acijuire a new right of entry by virtue of tlu; statute where at the date of the mortgage the statute has already begun to run against the njortgagor in favour of a person in adverse possession. iii. Acknoiiiedgnient. If an acknowledgment of title in Avriting signed by the person in possession lias been given to the person claiming foreclosure or his agent, the right to bring an action shall be deemed to have accrued at the time of such acknowled"- ment. This is provided for by s. 13 which is as follows: — 13. Where any iicknowleilgment of the title of tlie person entitled to any land or rent has been given to him or to his agent in writing, signed by the person in possession or in receipt of tlie ])rofits of sueh land, or in the receipt of sueli rent, such possession or receijtt of or by tlie ])erson by whom such acknowledgment was given shall Vie deemed, according to the meaning of tliis Act, to have been the posses- sion or reeei]it of or by the person to whom or to whose agent such acknowledgment was given at the time of giving the same, and the right of such last mentioned person, or of any i)erson claiming through him, to make an entry or distress or bring an action to recover such land or rent, shall be deemed to have first accrued at and not before tlu» time at which such acknowledgment, or tlie last of such acknowledgments, if more than one, was given (o) . The acknowledgment must be in writing and signed l)y the person in possession. Where a written acknowledg- ment has l)cen lost it may be proved by parol ( y>). {n) [1897] 2 Q.B. 143, C.A. (o) K.S.O. (1H07) c. 13:i, s. 1.'). (p) Ili(li»i V. iniliiuii.s (18:f0) 7 Bing. 103. LIMITATION OF ACTIONS. 275 An acknowledjijinent under section 18 differs from tliat Difference required by section 23. Under tlie i'ornier section the section l.T acknowledgment nnist be signed by the person in possession ; ^"'^ section under section 23 it may be signed by tlie person by wliom the money sought to be recovered is payal)le or liis agent. Section 23 is as follows : — si 23. No action or other proceeding slmll be bronght to recover out of any land or rent any sum of money secured by any mortgage or lien, or otherwise charged upon or payable out of such land or rent, or to recover any legacy, but witliin ten years next after a ])resent right to receive tlie same accrued to some person capable of giving a discharge for, or release of the same, unless in the meantime some part of the principal money, or some interest thereon, has l>een paid, or some acknowledgment of the right thereto has been given in writing signed by the person ))y whom the same is payable, or his agent, to the person entitled thereto or his agent ; and in such case no action or proceeding shall be brought, but within ten years after such i)ayment or .acknowledgment, or the last of sue ' payments or acknowledgments, if more tlum one, was made or given (r/). An acknowledgment signed by an agent of the person Acknow- in possession under section 13 was held to be insufficient •'''^""•'^"t ^ liy agent. (r). But an acknowledgment signed by an agent at the dictation of the principal, who was too ill to write, has been hehl to ha good (.s). The acknowledgment under both si'ctions is good if To the given to the })erson entitled or his agent. An acknowledg- en{ft*i"d ment given to a third per.son is iiiett'ectual (0- Where a defendant by his answer in a suit in Chancery acknow- ledged the plaintiff's title this was held in a subsecjuent suit to 1)e a good acknowledgment (*r). An acknowledgment to a trustee of the person entitled To a trustee. is sufficient to give the statute a new starling point (r). (7) K.S.O. (18!)7) c. Hi;!. For a discussion of this section see Chapter IX, siipm p. i)7. (/•) Ja-!/ v. I'rtrr (ISilS) '{ H. & N. 101. (.v) Corpomiiou <>f IMilin v. .liuUje (1S47) 11 Ir. L.K. S. (/) riirsdini v. TYm/,'/ (18412) 10 M. c^ W. .j7'_». ill) Goode v.Jol) (ISoH) 28 L..J.Q.B. 1. (0 Mvlutiivr v. Tlic ('(iiiadd Co. (1871) 18 (Jr. .•!G7. 276 KKJIITS AND LIA151LIT1ES OF THE MORTGAGEE. I...' . „ "• ■••■,.. ic:. • K2 ■; ...Ji ■•■ . «• " t- -"■ V' • «..• <.■••*■ «,-. • .- . - ,(#itf t . - -'J i ^ <.«! \ . . '.« . .ttfii . ■'. lit- .,: V •<«• -tt Form of nekriow- ledgement. Question for judge not jury. An nekiiowlofl^iiient made hy the person in possosHion to tlie niortojiijor will have the effect of savinu; the mort- jifatjee's ri<>iit.s ( (/'). It may be laid down as a general rnle that any form of words that may reasonably be construed into an admission of the right of the person entitlt'd will be sufficient. A letter written by the person in possession, asking for time for payment, to tlie mortgagee's solicitor in reply to a letter demanding payment, is a good acknow- ledgment (.'■). The words in the section "at the time; of iinvincv same" mean at the time the acknowledgment was signed and not necessarily at the date it bears on its face(y). It is a question for the judge, and not the jury, to decide whether a writing is a sufficient acknowledgment of title (5). A verbal acknowledgment is insufficient to prevent the statute from miming (a). • iv. P((rt Fayntent. An action may be brought within ten years next after the last payment of any part of tlui principal money or interest secured by the mortgage, although more than ten years may have elapsed since the time at which the right to brinrj; the action first accrued. This is provided for by section 22 which is as follows : — 22. Any person entitled to or claiming under a mortgage of land, may make an entry or bring an action to recover such land, at any time within ten years next after tlie last payment of any part of the principal money or interest secured by such mortgage, although more than ten years Inive elapsed since the time at wliieh the right to make such entry or bring such action first accrued (b) . (;r) Honker v. MorriNon (1881) 28 Gr. :{«?». (.r) Fin-stloii v. Chu/;/ (1842) 10 M. & W. 572. (i/) Doc (!. Cur;:on x.JCdn'uinLs (1840) G M. & W. 295. (r) Doe d. Cuy::oH v. Edmunds (1840) M. & W. 2!)5. («) Pcrrij V. Ilcudcrsou (1847) 3 U.C.R. 486 at p. 499. (/;) K.S.O. 1897, c. i;i3. IJMITATIOX OF ACTION'S. 277 Thi.s Heetion was first euactod in Canada by 1(i Viet (1853) cliapter 121, being taken tTom tbe English Act 7 Will. IV. and 1 Viet, cliapter 28. Section 22 refers to actions for the recovery of land ; section 28 refers to actions for the recovery of money (c). The former section does not provide by whom the Person liable payment is to be made, but it has been held that a pay- ment made by any person who is liable to pay is sntlieient to keep the remedy alive as against the land (cr). The payment must be by a person who has some right to pay and whose payment tin; mortgagee could not properly refuse (f/)- In Re Fi'lslcy, AU'tson v. Frisici/ {c) Fry, L.J. in referring to the word " payment " in the section of the English act corresponding to section 28, said : — "In my ojiiirum :i payment satisfying the woids of the section is made whenever there is a render of motiey to a person entitled to receive it hy a person liable to pay it. I ajicree tliat payment by a stranger would not do. the money in that case not being paid in dis- charge of a liability of the person paying it." In Newhoidd v. Sinith (/) it was held that payments Tayment by made by a mortgagor will not keep alive the remedy of '"°' S^S^i. the mortgagee against the mortgaged pi'operty in the hands of the ]mrcliaser of the etpiity of redemption. The case afterwards went to the House of L()r of preveiitin*^ the statute from runniii<; in favour of a purchaser of another part of the niorti;a<(e(l lands (n). Payments made by a mortijailities hereinl)efore mentioned, or by any person claimiii<; throuf^h him, but within twenty years next after the time at which such rif^lit first accrued, althoufjh the person under disability at such tinu- may have remained under one or more of such disabilities during the whole of such twenty years, or although the term of five years from the time at which he ceased to be under any such disability, or died, may not have expired. Payment by mortgagor who has sold his equity. Payment by mortgagor as against a stranger. Further time for disabilities. (o) Chinncry v. Emnfi (1804) 11 II.L.C. 115. ( /; )ln re Lord Miiskcrri/ (IH.IS) <» Ir. Ch. 94. (7) Doc (I. Palnicr v. Eiirc (IS.ll) 17 Q.B. 3Gti. 280 UIOHTS AND MAIUIJTIES OK TMK MoUTOAOEE. i::5,.:.; •Ill 111 '"ttl Second disiiliility before rfinovnl of first. Disability iirisiiif? after ri^lit of action does not avail. 46. Wiicrc imy j)erHon is under any of the disabilitieH hereinbefore nieiitioiied, at the time at which his rif^ht to make an entry or dis- tress, or to briiij,' an action to ri vei' any land or rent first accrues, and departs this life without having ceased to lie under any such disaliilitv, no time to make an entry or distress, or to brin>? an action to I'ecfiver such land or rent beyon(l the said period of t■). Tilt' section ol' tilt' Knt^lisli act cori'cHp(jn(liiig to .section ■I'-i includes covcrtiii't' iis a (jisability (•^)- II" a j)('fson is iindci- a tiisaliility wlicii his ri«(lit tifst accvncs and then falls iui(h'r another disability before tlie removal of the; first, his rij^ht may be enforced aft(M' the removal of the second provided it be within twenty years ( / ). On the other hand a disability arisino- after the ricjht has accrued will not prevent the tim<' from runnini,'(«)- The disability must be the disability of the morto-a^ee or those claiminij under him; the time will not be extended by reason of tiie disability of tlie mortoaojor ( r). vi. Concealed Fruud. Itight In t'JV«t> of concealed fraud tht^ statute does not beo-in aeerueswhen ^^^ ^.^j, y^■^^l\\ (^)jj. fraud is discovered or mioht have been fraud _ _ _ _ . r . discovered, discovered with reasonable dili^'ence. 'I'his is provided by section 31 which is as follows: — 31. In every case of a concealed fraud the right of any person to brint)j an action for the r .overy of any land or rent of which lie or any person throufjh whom he claims may have been deprived by such fraud shall be deemed to have first accrued at and not before the time at which such fraud was or with reasonable diligence might have been first known or discovered. ()•) E.S.O. (1897) c. 1.33. (s) 37 & 38 Viet. Imp. (1874) e. ,57, s. 3; see Uicki^ v. WiUiams (1888) 1.-) Ont. 1228. (0 linrrinoi v. Ellison (1871) L.R. G ¥,\. 128. («) Mitrnvj V. li'atkins (1890) 02 L.T. 79G. {v) Forsicr v. rattcrson (1881) 17 Ch. D. 132. LIMITATroN (»!•' ACTIONS. 2H1 Couci'iiKmI Iniud, t(» tiikt" tln' case out nl tlic siatulf, •^'|'^> '"' inUHt r)(( the iraiKl ot tlic person wlio st'cks ilir prott'ctioii |>fi'Miiii wlio of di.' .statut." or his a»-viit ( riii),' imy fiction, the ri>,'ht luui titlo of siicli jjerson to the hind or rent, for the recovery wiiereof such entry, distress or action respectively mif^lit hiive lieeii iiijide or liroufflit witiiin siidi period sliiill hv extin>;uished (.r). Tlie ett'ect of this section is to vest the lands in the '^""''*' revested. mortj^ai^or ni tho .same niamicr as it a reconveyance had been executed (?/). Under the /J'-a^ Propcrfi/ LlynUiitlon Act the rioht itself is extinouished. The statiitt? (Hti'ers in this respect from the statiitt; of dames (21 .lac. cliapter l(i) whereby the remedy only is barred (:). A morttjao'(!e who has siitt'ered tlie statute to run Suliseciiifiit , ,1 , 1 • • 1 f 1 (• 1 possession beiore ho asserts his ncjiit or entry cannot, by afterwards ,|,„.s not ^rettintj^ po.s,se.s,sion of tlie property, revive his title to it, "'^"'^■•' ^'"''• but he is in as a mere trespasser. The in.solveiicy of the mortiyao'or and the appointment of an assionee in insol- vency do(!S not su.spend the runnino- of the Sfdfofc of Limitations so a.s to pre.serve the lien and .security of the mortgagee on the land morto-aoed (a). An acknowledoiiient oiven after the .statutory period .\ci: Kihldv v. Fairthonie [1895] 1 Ch. 219; but see Tichborue v. If'ier 4 K. 2(\ [189;i]. (.-) Craii v.Uichford (1878) 2 S.C.R. 431 at p. 454. [a) Court V. n7(/.v/( (1882) 1 Ont. 1(57; aflinned 9 Ont. App. 294; Doc d. Duulop V. McXub (1859) 5 U.C.R. 289, 282 RKiHTS AND LIAHILITIES OF THE M(JUTGAUEE. I., *. .., "I' :•;; " ■ It:: V * .•11 ;(:;: Pi't'siiniiitioii of i)aynieiit. section 15 tlio right as well as the remedy is extinguished Where the mortgaged lands are not re-demised to the mortgagor, and the land is vacant at the time of the execution of the mortgage, the mortgagee is deemed to be in possession by operation of law, and the presumption of payment of the mortgage moneys after the lapse of the statutory period does not arise, even altliough the mort- gagee has never made an actual entry or received any payment on account of the mortgage. The mere fact that the remedy on the covenant is ])arred by the Statute of Li)nif(tfioiis will not establish a payment so as to re- convey the legal title to the mortgagor (c). So where a right of entry has accrued to a mortgagee without actual entry by him, and the mortgaged lands are sul)se(]uently left vacant before a title by possession has been ac(juired by anyone, the constructive possession thereof is in the mortgagee, and the Statute of Limitations does not run against him so as to extinguish his title to the lands, the mortgage being in default and no presuinp- tioii of payment arising (. Can. -'li.J. (0 Pratt V. HitirkiHs i;iS4()) 1.") M. \ W. :!!•!»: Doiilrv. lutiifmmi (1877) 3 (i.B.I). ;}40; but see Ihwclt v. /.V)T[lSi)l] 1 (.,»,». 98. (j) Citrli.'^ V. Shcffictd (188U) -JO Cli. 1>. liilS. (k) K.S.O. (1S97) e. l.T). (/) L(ti)i!i V. Ara-ji (18(17) 14 (Ir. :v.i. {in) McIOri, V. Mcluvj (187.')) Hu.-s. (N.S.) iL'l. CHAPTER XVIII. Costs. !;:x::.:; ... • ,«. U " M tftl| la - >i »4.« > h f- ""i:!!: ( V ..,„ ' .„. ^ • ...n ■ »»• ,.•..« Preliminary The t^eneral practice is to deduct from the inortijju^e ^^^ ^' loan tl>e iiiort^^ati^ee's costs of ne: Hnltru, Projnu iS- Scott V. J)nrlininilli Horhoiir Coiiiniixxioiicrs (]S'jO) 4.') Cli. 1). ()12. (k) Teed V. Ciirnitlirr.s (1S4'J) 2 Y. & C.C.C. :il ; Fonl v. EnrI of Clirstcr/icld (isr>;j) Ki Hciiv. .">!(;: Karl f>f Cork v. y.'^.sw/^ (1S7I) \..U. 1:J K()."21(): liroHiihtou v. Kcij (1SH2) W.X. ■'!. (/) V(is), V. Ilelchrr (1842) 1 Hii. ;fl(): (Irif/i/ v. Sliin/ls (184(i) a Ha. 93. (ill) Maxirdl v. Wiiihtukk (ISlifi) L.U. ;! iv]. 210. (»i) lirtKlicn y. Borhtse {l><'y») 7 W.K. 12."). (()) Ont. h'nlc 74!). ip) llott V. Pari: (lsr)S) (ir. .">;!: Lnrin v. Jours (18^4) .-)1 L.T. .-><). COSTS. 287 pay such costs, and altliouj^h tliey arc recoverable as the price of redemption they do not constitute a deljt of tlie niorttjagor for the recovery o-' wliicli an action may be brouijht (q). The general rule is that costs are in the discretion of f'osts as a ,, i. • 1 1 1 i. 4. 1 1 • 1 I Kt'iieral rule the court or judge ; and no order as to costs only which by i,i disc'etion law are left to the discretion of the court is subject to °^ «ourt. a})peal except by leave of the court or juject to review." 'I'he right of a mortgagee to co.sts arises out of the mortoaire contract, and indess that right has been forfeited for one or more of the reasons that will be discussed presently the mortgagee's costs are not in the discretion of the judge. If, therefore, the judgt,' Avrongfully deprives the mortgagee of his costs on the ground that he has forfeited his right arising out of the contract the moi't- gagce has a right of appeal ( n ). It would appear thai a mortgagoi' lias no riglit of .Moitf^Mgov appeal from an onh'i- iieuativing misconducl ami allowing- '""•'' ""^ II ,-. »^ ,- appeal. the mortgagee his eosts. l*'or if the mortgagee has been guiltv of iiiiseonduct his eosts then become costs within ((/) {•:.<■ pmii hiriiKjs (ISS;!) L'.") Cli. D. liUS. ((•) Out. Nule W.W (]): Out. .lud. Act, H.S.( ). ( 1S!)7) c. .')!, s. 72. (,si Out. K'ulc 1 1;;0, sub-s. L'. (/) (IST'-') S Ch. l!!!,-). ill) rii,nir.< v., /ours (iss(>) :!;i ch. I), so, C.A. ;.s,s RIGHTS AXI) LIAI5ILITIES OF THE MORTGAGEE, • « ;;; may Ik' (lf|)rivf(l of costs, Ol' ordi'i't'd to jiny costs. Mort^Miifcc f'liiiiniiiK' aljsoliite titif. Uiitoundi'd cliaru'cs ot fi'iiiiil. MortKiiKt'e hoiKI Jiilc cliiiiiiiiiK more tliait is due him. lln' tliKciTtion of tho jnrlgo and tliere is no appeal from the order witliout the jiid^-e's leave. ('•). A nioi'ty a dispute as to the rate of interest to which he is entitled; Thomas v. Girran (1897) 1 N.B. Eq. 314. {a) Little v. Brnnkev il880) 28 Gr. 191. COSTS. 289 And a chinn by a inort^ao-ee to consolidate secui'ities whicli is not allowed is not misconduct so as to disentitle him to costs (6). But where the mortgagor made a definite offer to redeem and the mortgagee unreasonably refused the offer setting up a groundless claim to consolidate another mort- gage, it was held that as the mortgagee's refusal was the sole cause of the litigation he nmst pay to the mortgagor the costs of the action (c). If the mortgage debt has been paid off before action, or if the amount due is tendered by the mortgagor or by anyone representing him or by a subsequent incumbrancer, and the mortgagee refuses the tender or proceeds after payment, he will be liable for the costs (d). A mere offer to pay the amount due and costs without an actual tender will not be sufficient (('). The conduct of the mortgagee may, however, amount to a dispensing with the tender. Thus if the mortgagee by claiming too much or b}'^ setting up two different claims, one of which is wrongful, so conducts himself as to show that a tender of the proper amount would not be accepted tliis will be a dispensation. But a mere claim by the mortgagee of more than is due ^^•ill not excuse the tender. Where the mortgagees refused to assign their mortgage under the Act res/Hrfi mj Mortrjages of Real Estnte (/) to the nominee of the mortgagor on tlu^ ground that subsequent '" "tgagees ha" ' 1" "1 ..J' !<■ ir ■»—. •II : c i" ' .••• ' III <.'.. ■i::'' ':::ii It •• •t »M •1 •• .-Ji, 1 «i ■(.>-. •( : r: Mastor may leport eir- eiimHtanees artecting co»ts .Iiirisdiction of County Coiirtn; costs oa lower scale. ■i;:;::; to the court for an order requiring; tlio inortga<^ee.s to execute an a.ssio;ninent, the mortgagee.s were re((uired to pay the costs occasioned by tlieir refusal (ry). Under a judgment or order of reference tlie Master has power to report special circumstances (h) ; and if tlu; plaintiff' in a redemption action claims that the mortgagee has disentitled himself or made himself liable to costs, the disposition of the costs may be reserved until after the Master has made his report. The Master sliould report any matter bearing on the question of costs (^). Prior to the Law Reform Act, 18G8{j), County Courts exercised jurisdiction in the following cases : — {a) where a legal or equitable mortgagee whose mortgage had been created by some instrument in writing souglit foreclosure or sale, and the sum claimed as due did not exceed $200 ; (6) where a person entitled to redeem a legal or e(|uitable mortgage sought redemption, and the sum actually remain- ing due did not exceed $200 ; {c) where any person sought equitable relief for, or by reason of any matter whatsoever and the subject matter involved did not exceed $200 {k). The Law Reform Act of 18G8 {I) abolished the equitable jurisdiction of the County Courts but the Rules of Practice (i)i) provided a lower scale of costs for actions in the Higli Court wherein the relief mentioned in the preceding paragraph was sought. (flf) Queen^s College v. Claxton (1894) 25 Ont. 282. (7() Ont. Kule 667. (/) Simpson \. Home (1880) 28 Gr. 1; Hayes v. Hayes (1831) 29 Gr. 90. (j) 32 Vict. (Ont.) c. 6. (A:) C.S.U.C. (1859) c. 15, s. 34, sab-ss. G, 7, 8. Section 34 of the Act required that the claim for equitable relief should be entered in the County Court of the county in which the defendant resided. And where several defendants resided in different counties the plaintiff under the former practice was entitled to costs on the higher scale: Be Lyons (1884) 10 P.R. 150. (0 32 Vict. (Ont.) c. 6. (m) Rule 515 Ont. Jud. Act, 1881; Rule 1219 Con. Rules, 1888. COSTS. 291 , Tlu! cfiuitable jurisdiction of the County Courts was 1 "Stored by the Cuwiity Courts Act, J SOU {n). Section 28 of the County CouHh Ad{o) provides that County Courts sliall have jurisdiction — (1) In all causes and actions relating to debt, coven- ant and contract, to SOOO, where the amount is liquidated or ascertained by the act of the parties or by the signature of the defendant ; (2) In actions by a legal or eijuitable mortgagee whose mortgage has been created by some instrument in writ- ing, or a judgment creditor, or a person entitled to a lien or security for a debt, seeking foreclosure or sale, or otherwise, to enforce his security, where the sum claimed as due does not exceed .$200 ; (3) In actions by a person entitled to redeem an}' legal or ('([uitable mortgage or any charge or lien, and seeking to redeem the same, where the sum actually remaining due does not exceed .i?200. (4) In actions by any person seeking equitable relief in respect of any matter whatsoever, where the subject matter involved does not exceed $200. And the County Courts have power as regards actions within their jurisdiction to grant the same relief, redress or remedy as may be granted by the High Court ( ^)). Where an action of the proper competence of a County County Court is brought in the High Court, and the judge makes brought in no order to the contrary, the plaintitt' is entitled to recover ^^Sli Court, only County Court costs, and the defendant is entitled to . tax his costs as between solicitor and client and to set off tlie excess, if any (g). Where the amount due the plaintiff" as mortgagee is less than $200, but there is a subsequent incumbrancer to («) 59 Vict. (Ont.) c. 19; see now R.S.O. (1897) e. 55. (o) R.S.O. (1897) e. 55. [p) s. 28. (7) Ont. Rule 1132. , 292 lUOHTS AM> LIAItlLlTIKS OF TIIK MORTfiAOEE. k;.:1(: V i.::l .>rt> (■■•- Action for ivccoiint after sale. Solicitor llloi'l(,';i^'C(' not t'lit it li- to |irr)lit I'OStS, whom more tluin that .sum is due, tho action will bo brought proptTJ}' in the Hij^li Court (r). Where a luorti^'aoce exercised his power of sale realiz- ing !?.'»5(), and it was found on a bill tiled by the mort- gagor for an accotuit that tlu; amount coming to the mortgagor was .sl.SO, it was held that the mortgagor was entitled to costs on the higher scale " the subject matter involved " l)eing !?85() («v). The nujrtgagees after the exercise of the power of sale in their mortgage, which was security for i5(i7()5, claimed that !?1.S2.(J1 was still due to them, Init on an account being taken it was found that 820.07 was due to the mortgagor. It was held that the amount involved con- sisted of the two la.st mentioned sums or a total of 8202. (JS and that the costs were pro2)erly taxed on the higher scale (t). In Boulton v. Rowhind (u) the mortgagee sold tnider his power of sale for S5517 the whole of which he claimed to be entitled to keep. The mortgagor brought action for an account and for payment of the surplus, and it was found on a reference that a sum of 81 ''i() was due to the mortiiao-or. It was held that the ijeneral rule that a mortgagee is entitled to his co.sts did not apply, this not being a foreclosure or redemption suit but the ca.se of a defentlunt receiving money for the plaintitl' and being sued therefor, and the full costs of suit. mort'fao;or was declared entitled to his Where a moi'tgagee is a .solicitor he will not be allowed ])rolit cdsts, but only costs out of pocket, in re.spect of any ;al proceedings taken ])y him to recover the mortgjige .) Ilnmiif limits (JSOf)) 11 (Jr. 202; Scatit v. Mcllrnij (1867) 2 . . Cli. !i:;. (.s) MclSiUicHililii V. (Irifiin (187:0 'JO Or. 81. CO Morliiii V. Ilniiiilton Provident and [Loan Society (1885) 10 P. K. (i3(i; r.dirmcd 11 I'.R. K'2. («) (18s:i) 4 Ont. 7'JO; lieatly v. O'Connor (1884) 5 Ont. 747. COSTS, 2\)'.i (lt'ht('')- t>>it a Holicitof iictin<,' I'or liiiiiscll' ami a co- inort^Uf^jcf wlio is not a solit-itor is ciititlfd to profit costs (w). Wliei'L' tlit^ l»'<;al procoodin^^s arc taken hy tlic tii'ui of which the solicitor inortt;a^t'(' is a iiuMubcr, liis j)artiu'rH will be entitled to thti same share ol' such profit costs as they are entitled to in the resentative, may make the like applica- tion for a reference thereof to taxation as the party chargeable there- with might himself have made, and in like manner, and the same j)roeeedings shall be had thereupon as if the api)lication had been made by the i)arty so chargeable. ((') In re frallis, c.r parte Lickorish (1890) 2,i Q.B.D. 170; Ei/re v. tVynn- Mackenzie [18941 1 Ch. 218: Stone v. Lickorish [1891] 2Ch. .IGS. {w) Sclater v.Cottain (18.')7) 3 Jnr. N.S. (i.lO; In rr Doodij, Hihhert v. Uuiid [1893] 1 Ch. 129. (.r) InrclUxxhi, Fisher v. Doodi/ [189;{] '1 Ch. 129; IVcllhii v. Still [l89;i] W.N. 91; 'Ei/rc v. Wijnn- Mackenzie [1894] 1 Ch. 218. (v) See Broad W. 6W/t; |(18();j) 11 W.Ii. 103G; Eyre v. IVynn-Mac- kcnde [1894] 1 Ch. 218. (z) li.S.O. (1897) c. 121, s. 30. (a) li.S.O. (1897) c. 174. IMAGE EVALUATION TEST TARGET (MT-S) 1.0 I.I liT 1^ 12.2 u — 6" 2.0 18 11.25 iU IIIIII.6 '^ ^'^ V PhotDgraphic Sciences Corporation 23 WfST MAIN STRfET WEBSTER, NY. 14580 (716) 873-4503 i 294 KHJ}ITS AXl) LIAHILITIES OF THE M<)RT(JA(iEE. ;^ ■ ■ "i: C Ti;\ation ii..'!.,;j •••.»< undtT • * .. •(! prwcipe order. ,,.„i«« •«:-ir: :t!c:;:; !:':t:; A niortya^or is a third party within the act so as to entith; liim to have tlie mortgagee's costs taxed (/>). Where a first mortgagee sells under the pt»vver ol" salt- contained in his mortgage, a subsecjuent mortgagee is entitled to an order to tax the first mortgagee's costs of exercising the power, such costs to be taxed as })etween solicitor and client (e). But if the mortgagee has paid his solicitor's costs and so precluded himself from taxing the bill, the mortgagor who stands simply in the place of the mortgagee has no right to tax the costs. If the n»ortgagee has juiid the solicitor more than the proper costs the mortgagor's only remedy is against the mortgagee for an account {>|ve months after payment, and if the special circumstances of tlie case in tlie opinion of the Court or Judge appear to require the same, uj)oii siicii terms and subject to such directions as to the Court or Judge seem right. (c) Ont. Rule 1184. (/) Re Moffatt (1887) 12 P.R. 240. to salt' is of 't't'ii tml IK) the only CHAPTER XIX. Priorities. Where there are two or more persons having mortgages First in oidt-r Priority of tnx(j«. or incumbrances on the same estate tlie (juestion arises whether they shall be paid 2^'^^^ passu, or whether one shall be entitled to resort to the lands and be paid in full before the others shall have anything. Apart from statutory provision the general rule is that he whose security is created first in the order of time shall be entitled to be paid out of the lands in priority to those whose securities are later , qui jirior est tempore potior est jure. But incumbrances which consist of taxes or rates assessed upon lands under the authority of the Assessment Act (a), the Municipal Act (b), or the Municipal Drain- age Act (c) have priority over other incumbrances including mortgages. Section 149 of the Assessment Act provides that — 149. The taxes accrued on any land shall be a special Hen on such land, which lien shall have preference over any claim, privilege, lien or incumbrance of any party except the Crown, and shall not require registration to preserve it (rf). . If lands are mortgaged to the Crown, the mortgage takes precedence to the lien for taxes, and the interest of the Crown cannot be sold for arrears of taxes (dd). The lien for taxes takes precedence although the assessment be made after the creation of otlier charges, and priority over lien lOr taxes (a) R.S.O. (1897) o. 224. (b) R.S.O. (1897) c. 223. (c) K.S.O. (1897) c. 226. (d) See Haynes v. Smith (1853) 11 U.CR. 57; see also R.S.O. (1897) c. 223, 8. 387. (dd) Regim v. County of WelUngton (1889) 17 Ont. 615; 17 Ont. App. 421; sub mm. Quit' v. Queen (1891) 19 S.C.R. 510. Interest of Crown takes 2!)() UKJHTS AND LIAIULrnp:s OF THE MORTOAOEE. • •■■»'M. \- : ...1 i .-"■•" Mer-hnnics' iieii8. I.xeouiious. such a Hen attaches in prct'ci-cncc to a niort;ja«jo i^iven Ix'fore the act was passed under tlic authority of which the assessment is nuulu (e). Under section 7 of tlie Mirlinnlcs and Wajfc-hJarners' Lien Act (/) the lien j^iven to workmen and otliers for work done an«l materials supplied shall have preference over a prior mortjjaije or other cluu'«;e to the ((xt«'nt to which the sellinjj value of the land is increased hy the work done or materials supplied (//). But a lienholder is not entitled to the benefit of insurances ert'ected by the mort»fa«jee, and if the buildin^js in i-espect of which the lien has been alhtwed are destroyed by tin; the lien is at an end (A). In addition to the priority to which the holder of a mechanic's lien is entitled over prior mortpigees, he may ac(|uire priority over subsecpient mortt;a). When two instruments are executed on the same day that which was executed first takes prioi-ity, and evidence may be j^iven to ascertain which was in fact executed first {o). Apart from the provisions of the Kftjlstry Art {jy) the rule of priority applies t(i ecjuitable mortj^at^ees as amonjj themselves, anrl also to ecjuitable moil^a^ees and execution creditors and those having an e(juitable lien, charj^e or interest ; but a mortgagee who is the holder of the legal estate has priority over all eijuitable mortj:;agees and lien- holders, of whose claims he has no notice at the time of the creation of his security. But where a le<;al mortt;a<(ee is jjuilty of fraud or even gross negligence, for example, in not re<|uiring the prf^'.uc- tion of title deeds, he will not be entitled to prior' ly over a prior equitable mortgagee whost? mortgage was created by deposit of title deeds (//). llnder the provisions of the Rcfjisti'i/ Act a mortgagee may lose tlie priority which he has aopiired by virtue of his being the liolder of the legal estate, or by virtue of his security being prior in point of time. Priority where instni- lueiits «'Xf- ciited on same day. Plquitable mortgagee. Legal mortgagee. Mortgagee may 1- iiiH priority. (1) Foster v. Smith (ISoO) 13U.C.R. 243; Hank of Montreal v, Mntiro (18G4) 'J:i U.C.Ii. 414; Kerr y. Kinnei/ (ISGo) 15 U.C.C.P. Ml. (»/) (52 Vict. (2) (1H90) (Ont.) e. 11, 8. 13. («) lieekmnn v. J«cm (1847) 3 U.C'.U. 280; Converse \. Miehic{\»Qb) 16 U.C.C.P. 167. (o) (iartside v.Silkstone etc. Coal and Iron Compani/ (1882) 21 Ch. D. 762. (p) R.S.O. (1897) c. 136. iq) Oliver v. Hinton [1899] 2 Ch. 264; liatcliffe v. Barnard (1871) 6 Ch. 652. 298 HKJUTS AND LIAIULITIES OF THE MOHTr.AOEE. «.: i: c\;t: \ -. ..ii Kegiutratioii IiiKtrunieiits whicli may be regiHtered Unregistered instrument fraudulent and void as against subsequent purchaser or mortgagee TIr' Rt'ijintri/ Act (r) providt's for tlie resist rat ioti ol" certain inHtruint'nts attl'ctin«j hinds in the county or rejjiatry division in wliicli the hinds lie. Subject to the provisions of section 3f) as to leases for a term not exceeding; seven years instruments wliieh may be re^stered are as follows : — Eveiy C'rown ^rant, Order in Council of the Dominion or of this Province, deed, conveyance, n>ort<;atje. assi^^n- ment of nK)rtj,'a<;e, certificate of dischar«;e of mort^ai;e. assurance, lipase, bond, release, discluirfje, power of attorney, or suVwtitution thereof, under which any such r(Kreed- . injfin lunacy, bankruptcy and insolvency ; and every other instrument whereby lands or real estate may be trans- ferred, disposed of, charjfe(l, incumbered or afi^ected in any wise, art'ecting land in Ontario (.•*). Section 87 of the Rrijistry Act provides as follows : — 87. After any grant from the Crown of lands in Ontario, and letters patent issued tiierefor, every instrument affecting tiie lands or any part thereof comprised in the grant shall be adjudged fraudulent and void against any subsequent purchaser or mortgagee for valuable con- sideration without actual notice, unless such instrument is registered, in the manner herein directed, before the registering of the instru- ment under which the subsequent purchaser or mortgagee claims. So that a mortgajree, legal or equitable, may lose liis priority by failure to register, if a subsecjuent purchaser (r) R.8.O. (1897) e. 136. (a) R.S.O. (1897) e. 136, s. 2, sub-s. 1 and s. 38. I'HiOUmFS. 299 or inortgagce registers Ins instrument without actual notice of the prior mortgage. The omission of the registrar to index a registered nmission .>f • 11 i 1 • •. I. • • ,.. 4 11 registnir. mortgage will not depi'ive it ot priority (0- And by section 92 of the RegiMr}/ Act registration shall constitute notice notwithstanding any defect in the proof for registration. An action will lie against a registrar by any per.son suff'ei'ing damage owiiiir to the reiristrar's omission or wrongful act(t(). Before the passing of the RfiiiMrti Act, ISO.} (mi), there What . , . 1 ,. ,. 1 • , constitutes waH great inconvenience owing to the diihculty m deti'i'- registration. miniv.g the precise point of time when registration took place. For if before registi'ation there should be actual notice of a prior instrument the .subsecjuent registration would not prevail against the prior instrument. In one ca.se it was held that entry of the instrument in the registry books at full length was necessary to constitute registration and that the mere receipt of the instrument by the registrar was not sutiicient (r). Tht! notice re([uired by the Rcfjidry Act in order to Notice must preserve the priority of a mortgage over a subseijuent instrument must be actual not merely constructive notice (vo), and will be sufficient if it comes to the subse([uent purchaser or mortgagee at any time before the registration of his instrument {w). bo actual. {t) Lnm-ie V . Rathbun (1879) ;)8 U.C.K. 255; Green y. ronton (188.5) 8 Ont. 471; .lost v. McCuish (1893) 25 N.S.R. 519. («) Uavrison v.Ihega (18G1) 20 U.C.K. 324; (irccu v. Ponton (1885) 8 Ont. 471 ; linqa v. IHckcii (18(59) 16 Gr. 494; Ontario InduHtrial Loan etc. Co. V. Lindscy (1884) 4 Ont. 473. (mm) 5C Vict. (Ont.) e. 21, s. 93. («) Lawrie \. Rathbun (1876) 38 U.C.a. 255. (vv) Cochrane v. Johnston (1867) 14 Gr. 177; Harti/ v. Applehi (1872) 19 Gr, 205; Sherhoneau v. Jeffs (1««9) 15 Gr. 574; Grey v. Hall (1876) 23 Gr. 390; Roe v. Bradcn (1877) 24 Gr. 589. (w) Millar v. Smith (1873) 23 U.C.C.P. 47. 300 KHSIITS ASM) MAIIILITIKS OF THE MoimJAOKE. Tlu' iiurstioii wiiH s<'t at rt'st 1)A' the act ivImjvi' I'cfern'd " 111. ...... A . ..:::i ■::tK::::: IiiHtriinuMit is ie>^i(*tert';iiilty f>f tlie violation |)rovided for by the precedinjj section, and may be punished in the manner therein jirovided. Kxecution creditor. Purchaser at slieriff'ssale. Mortgagee nniy preserve his priority by notice. An execution creditor who phices his writ of execution in the sheriff's hands after the niortjjaije has been made, but prior to the rejjistration thereof, does not thereby gain priorit}' (.»•). Nor can an execution creditor obtain priority over the holder of a prior e(|uital>k^ chiini wliich is un- registered or is not registered until after the writ of execution has been placed in the sheriti"s hands (ersoiis claiiiiiiiff any iiit»M«'8t in tlie lands, snlis»'(|Ui'nt to Hncli registration, lu'twitli- standin^ any defeat in tlie |)roof for ri'^iptration, but n«*vprtlielesM it shall continut* to he the duty of every KeKi'**''"'' "^'^ to register nny instrument, except on such jiroof as is recjuired by this Act. Rcjjistratioii of a mortjja^je on lands, l)t'fore issue of the patt-nt from tlu' Crown, does not constitute notice to a person who afterwaratent not notice. Mortgagee may gain l)riority by registration. Priority of registration shall prevail. When priority of registration does not prevail. 302 HKillTS ANI> MAhlMTIKS OF THK MoHT«JA(iKK. O:: c ■ .-.:: N • » »44 V. •. ..a ....n ■«.:::: New imyiiiK off prior niort^aKe. Payment of prior mort- gage by person liable to pay it. 'I'lms wlicrt' A. m()rt;;«j;«'.s to R land wliicli he has ajrr(.«.(| to pmrliasf from ('. Imt lias not yet imrcliascd, ami aftt'i* i«'t;istiatioM of tlu! jiiort^a;;t' A. ivct-ives a *\vvi\ of the hinort- gagee ; but it was held that the plaintiff' by his acts and conduct had precluded himself from asserting such right8(i). If a mortgagor, or owner of the etpiity of redemption or any incumbrancer redeems a prior charge which was his (/) Nevitt V. McMurray (1886) 14 Ont. App. 126; McMillan v. Mutiro (1898) 25 Ont. App. 288. (g) Trust and Loan Co. v. Ou'laghcr (1879) 8 P.R. 97. {h) (1894) 25 Ont. 118. (t) See also Brown v. McLean (1889) 18 Ont. 533; Abcll v. Morrison (1890) 19 Ont. 609. I'UlnHITIKS. :U)3 «)wti Wt'ht, or wliifli hy contract »'.\pre.sN or iiiipliol he was lM)iiml to discliar^t', he cannot kct'p miicIj char;;*' alive as a;{ainst a mesne incuinlmincer, whose incunihrance he is also expressly or impliedly ImiiukI to discharge (j). If a person entitloil to pay oti" a mort^a^e makes payments thereon from time to time he is not entitled to an assignment (nil«;ss his payments have been made on the faith of his ijettin^ an assiijnment. In any event his riijht to an assignment is only an c(|uital)le ri^ht and cannot prevail ovi-r the rij^ht of a second mort;;a;;ee who reijisters his mort^a;;e without notice of the ri^ht (/.). Where a widow has not joined in the first niortjja^e to har her dower, but joins in the second mort^a;;e for that purpose, and the second mort^ja^.n-e ol)tains priority ov<'r the first hy prior registration, the widow is entitletl to the surplus arising from a sale under the second mort- ^a^e in priority to the first m()rtpi^ee(^). With regard to mort^aj^es and other writt«'n instru- ments capable of registration the statute points out the means of preserving priority, namely, by repstration. But in the case of an e(juitable mortgage or lien incapable of ri^criKtration, for example, a mortgage by deposit of title deeds without a sufficient memorandum in writing, it is not clear how priority may be preserved. Section !)8 of the Registry Act provides that — 98. No equitable lien, chnrg> or interest affecting land shall bo deemed valid in any court in th \ Province as against a registered instrument executed by the same party, his heirs or assigns; and tacking shall not be allowed in any case to prevail against the pro- visions of this Act. This section it would seem refers to etjuities which are incapable of regi.stration ; for example, a vendor's lien for Kight to assignment. Har of dower Equitable mortgages and liens incapable of registration. (j ) Blake v. Beaty (1855) 5 Or. 359. (k) McMillan V. McMillan (1894) 21 Ont. App. 343; Imperial Loan and Investment Co. v. O' Sullivan (1879) 8 P.R. 162; fVatmn v. Dowser (1881) 28 Gr. 478. (0 (tray v. Coughlin (1891) 18 S.C.R. 553, reversing the Court of Appeal for Ontario; S.C. sub nom. Maclennan y. Gray (1889) 16 Ont. App. 224. 804 UniMTS AN'h MAHIIJTIKS <>K TIIK MOHTOAUEK. «: C 'iu .. ..1...^ 1 :^ iia pendens Fraud or negligence. Misrepre- sentation or concealment uiipai«l pureliiiNc moiify <»" lui ('(|iiitul)l(' niortjjiijft' by deposit of title (leeK were orij;iiuilly eimet«Ml by 2J) Vict. (IH()()), chapter 24, it was held that an eipiitable rij;ht or int«'rest incaj)able of rej^istration was not liable to bo defeated by a substMpient re;;istered instrunxint (nt). But since that enactment an opiitable lien, charge or interest cannot be set up aj^ainst an instrument which has been rejfistered without notice of the etpiitable claim. The section if taken literally wouM seem to avoid all ecpiitablo claims irrespective of notice ; but it has been held in several cases that a person claiming; under a rt'ijistered instrument takes subject to prior ecpiities of which he has notice (n). The notice reijuired nnist be actual notice (o) and possession except in case of a lea.se is only constructive notice (p). A mortpijjee by deposit of title deeds or other person claimini; an (Mjuitable lien, charge or interest may not l)0 altofjether defeated if he is in a position to institute an action to have his ri*(hts declared, for he may then rej;ister a certificate of lis pfiKlrths which will be notice to persons HuUsequently dealin<; with the lands (7). A mortt(a; I'elcrkin v. McFarlane (1884) 9 Ont. App. 429; S.C. mb nom. Rohc v. Pctcrkin (1885) 13 S.C.K. 077. (o) liuildinff and Loan A.s.soi'iation v. Poaps (189G) 27 Ont. 470; JicH V. Walker (1873) 20 Gr. 558; Hudson's Hay Co. v. Kearns (1890) 4 B.C.R. 536. (/)) Cooley V.Smith (1877) 40 U.C.R. 543. (7) R.S.O. (1897) c. .51, 8. 97. (»■) Ibbottson \. Rhodes (1700) 2 Vern. 554. ntlOKITIRS. 90? pui'chjis<'r is induciMl to l)t'li»'v»' tliiit the ])i<)]>fi1y is iVcc l'r(»in siit'li iucuinhmm'e, may postponr thr prior security (x). When' OIK! of two or more tenants in oonnuon has l)eeii 'IVuautw in Ill possession, tlio otlu^r truants m Lniuiiion cannot eliarj^e his share with the excess of rents rrceiveil l)y him, in priority to a mort^^ai^e of that share {f)\ nor in priority to an execution creditor of the teniait in possi'ssiv»i) (n). Where a Hrst iiiorti;a*'"'''^- Rf'jjlstrt/ Ad, and floes not re(juire to be registered in order that it may retain its priority. Section 'V.) provides that — 39. This Act shall not e.xteiid to any least* for a term not e.xeeedinK seven years, where the actual possession goes along with the lease ; but it shall extend to every lease for a longer term than seven years. So that a mortgagee may be postponed to a prior uiuegistered lease for a term not exceeding seven years even if he has had no notice of the lease. But the section applies only to a lease under wliich tlie lessee is in actual possession, and the mortgagee may protect himself by making encjuiry of the le.ssee. Where a lease made for a term less than seven years contains a covenant for renewal for a ftirther term which together with the original term makes a period exceeding (.v) Jtenisford v. MilimM {\'H)) 2 Atk. 49; Slyoufjc v. Hawke.s (\Hr,-^) 4 DeU. M." & G. 18G; Uroicn \.Tho)-]>c (1842) 11 ]...!. Ch. 7:t; IS R.C. 532. (0 Hill v.HU'kcn (1S97) 77 L.T. 127. (») Mcrhcrsonv.Mi'Plursnn (188:0 10 P.R. 140. (r) Trust and Loan Co. v. lioullon (1871) 18 Or. 234. ;iOG RIGHTS AND LIABILITIES OF THE MORTGAGEE. I* • ■ • u > . » «i: i: I-' .* i "r*"* }•■»•■♦■••■. Lease by mortgagor subsequent to mortgage. seven years, in that case, if the lessee is in possession, the lease does rot require registration in order to be valid as against a mortgage of the land which was registered during the original term (w). But where a lessee during the currency of a lease for five years obtained a lease for a further term of four years to commence on the termination of the first lease, it was held that the second lease being unregistered could not prevail against a mortgage registered after the second lease was made but before possession under it began. In oi'der to obtain the protection of the statute there must be not only a present lease but possession under it (x). A lease granted by a mortgagor after the mortgage is made, without the mortgagee's concurrence, will not bind the mortgagee (y). The general rule of priority as among secured creditors that they shall have resort to the lands in the order of time in which they were created respectively is further modified by the eijuitable doctrines of tacking and con- solidation (z). [w) Latch V. Bright (1869) 16 Gr. 653. (x) Davidson v. McKay (1867) 26 U.C.R. 306. (y) Eeeeh v. Hall (1778) Douglas 21 ; 18 R.C. 123. {2) See Chapters XX. and XXI. CHAPTER XX. Tacking. According to the equitable doctrine of tacking a mort- Doctrine of gagee may under certain circumstances tack or add to the amount owing under the mortgage certain other debts or claims owing to him by the mortgagor, and may refuse to be redeemed unless the mortgagor pays the whole amoimt. This rule is founded on the ecjuitable maxim that he who seeks ecjuity must do equity. When a mort- gagor comes into a court of equity seeking redemption the court, acting on this maxim, imposes as a condition of its interference the term that the mortgagor shall act honestly with the mortgagee by paying him not only the mortgage debt, but also other debts owing by the mortgagor to the mortgagee. Thus if a mortgagee lends a further sum to the mortgagor on a judgment or statute, or on a subsecjuent mortgage, he may require both td be paid before submitting to redemption (a). Neither specialty nor simple contract debts can be Tacking tacked as against the mortgagor liimself (b). mortgagor. But both specialty and simple contract debts can be Tacking tacked as against the heir or devisee redeeming (c) ; and a of'exeeutor! mortgagee of a term can tack simple contract debts as against the executor redeeming (d). (a) Shepherd v. Titley (1742) 2 Atk. 348; fryllic v. Pollen (1863) 11 W. R. 1081. {b) Jones v. ^miih (1794) 2 Ves. 372; iJeVigier v. Lee (1843) 2 Ha. 326; Ferguson v.Frontenac (1874) 21 Gr. 188; Canadian Bank of Com- merce V. Forbes (1885) 10 P.K. 442. (c) Elvy V.Norwood (1852) 21 L.J. Ch. 716; Trust and Loan Co. v. Cuthbert (1868) 14 Gr. 410; Watkins v. McKellar (1859) 7 Gr. 584; Teeter v. St. John (1863) 10 Gr. 85; fVells v. Trust and Loan Co. (1884) 9 0nt. 170; 20C.L:J. 407. (rf) Coleman v. fVinch (1721) 1 P. Wms. 775. 308 IIKJHTS AND LIAISILITIES OK THE .M(U{T(JA Tacking costs. Tacking judgment. Moneys paid tor release of equity of redemption. No tacking of unsecured debts against the mort- gagor. :"':!c;::r •' Tacking arises only where t?harges created by same person. A mortgaijt'o is not entitled to tack to liis in<)rt<,'a},'e debt the cost.s of inisnccessful proceedingH taken witliout the concurrence of the niortgatfor (>'). In McLaren v. Frdser (/) a niortga9;j. (/i) liol/c V. Chester (1855) 20 Beav. GIO. (/) Rhhardson v. Horton (1843) 7 Beav. 1112; Irhif v. ////(/ (Is.'..-)) 'I'l Beav. 1217. (j) Tiilhot V. Frere (1878) I) Ch. 1). 568; In rv iire(()• An equi*^able mortgage or incumbrance cannot be tacked to another ecpiitable mortgage so as to acquire Tacking as betwt't'u incumbran- cers. Priorities : legal and equitable in- cumbrances. (A:) Stark v. Reid (1895) 26 Out. 257. (/) Rrinfol V. Hungerford (1705) 2 Vern. 524; Baihy v. Barnes [1894] 1 Ch. 25. (m) Marsh v. Lee (1670) 2 Ventr. 337; 18 R.C. 523. 310 RIGHTS AND LIAHILITIE8 OF THE MORTGAGEE. "i.'i: C'Ca mm .,mU \. "...a ;:'U:.;; No tacking nnk'Hs siibse- fiuent ndvaiu'e a lifii on the land. Foundation of the rule. ^fortgafjee having or acfiuirinpthe legal estate. Taekinff not allowed ajjainst the provisions of the Registry Act priority over an intervening incumbrance iniless it be by virtue of prior registration (n). Tacking will not be allowed as against a mesne incum- brancer unless the subsecjuent advance sought to be tacked is made on the security of the land (o). The right to tack will not be allowed as against a mesne incumbrancer if the person asserting the right has had notice of the mesne incumbrance at the time of advancing his money (p). The rule is based on the maxim that " where the equities are equal the law shall prevail ", and forms an exception to the rule of etjuity that etjuitable incumbrancers as between themselves shall rank in the order of time. A mortgagee who originally holds or afterwards acquires the legal estate prevails over all other persons having mortgages, charges or other inciuiil>rances of which he had no notice at the time when he advanced his money (q). If a mortgagee has no notice at the time of advancing his money he may protect his security by subse(juently getting in the legal estate, even although at the time when he gets it in he has notice of the mesne incumbrance (/•)■ But the mesne incumbrancer may be protected by registration of his mortgage under the Registry Act (s). For registration is notice to all persons claiming any interest in the lands subsecpient thereto (/). ■ (h) liracc V . Dnchess of Marlborough (1728; 2 P. Wms. 490; R.S.O. (1897) c. 136, S8. 87, 92" 97. (o) Laecy v. Iiujic (1847) 2 Ph. 4U; Godfrey v. Tucker (1863) 33 Beav. 280. t (p) Brace v. Duchess of Marlborough (1728) 2 P. Wms. 490. (q) GoodiUJe \ . Morqau (1787) 1 T.R. 7;").-); lUqht \. BuekneU (1831) B. & Ad. 278; 36 R.R. 563; Bates \. Brothers (1855) 2 Sm. & G. 2 509 (»•) Blackwood v. London Chartered Bank of Australia (1874) L.R. 5 P.C. 92; 18 R.C. 522. is) R.S.O. (1897) e. 136. (t) 8. 92. TACKING. 811 of Section 98 of the Rajistry Ad is as follows : — ,^ 98. No equitable Hen, charge or iuterestaffecting land shall be deemed valid in any court in this Province, as against a registered instrument executed by the same party, his heirs or assigns; and tacking shall not be allowed iu any case to prevail against the provisions of this Act. Where a mort<;agee has advanced part of the mortgage moneys he may tack to his original advance subse(iuent advances not exceeding in all the amount for which the mortgage is expressed to be a seciu'ity, in priority to a .subseijuent mortgage of which lie has no actual notice at tlie time of sucli subsecjuent advances. In such a case the subsecjuent mortgagee may preserve his priority by giving the tir.st mortgagee actual notice of his claim ; registration of his mortgage is not sufficient to con.stitute actual notice («). A legal mortgagee cannot claim priority over a subse- quent mortgagee in respect of any further advances made by him as first mortgageii after he has received notice of the subsecjuent mortgage (r). Registration of the subseciuent mortgage does not constitute notice to the first mortgagee so as to give priority to the subsetjuent mortgage over advances made after the registration. The notice must be actual notice {xc). Section 0!) of the R"(/i.sfri/ Act {x) provides as follows: — 99. (1) Kvery niortg.ige duly rej,'lstere(l against the lands comprised therein is, and shall be deemed as against the mortgagor, his heirs, executors, administrators, assigns ami every other person claimiiig by, through or under him, to be a security upon such lands to the extent of the money or money's worth actually advanced or supplied to the mortgagor under the said morttragc (not exceeding the amount for which such mortgage is exi)resi-'erai;e, or other instrument affeetinf; the said niortfjajjed hinds, executed by the niortfcagor or his lieirs, executors or administrators, and regis- tered suhsetiuently to such first mentioned mortgage, unless before advancing or supplying such moneys or money's worth the mortgagee in such first mentioned mortgage had actual notice of the execution and registration of such conveyance, mortgage, or other instrument; and the registration of such conveyance, mortgage or other instrument after the registration of such first mentioned mortgage, shall not constitute actual notice to such mortgagee of such conveyance, mort- gage or other instrument. (2) This section shall not apply to any action pending on the 5th day of May, 1894, and shall not afTett any qne.stion of ])riority in respect of advances made by a mortgagee before the said date. The doctrine of Hopkinsov v. Roll yt/) that, after notice of a .subse(|uent incumbrance, a tir-st niort ' -; mort- gagee has no right to restrain the mortgagor from r>oi , •■:'■ money from some one else, and from giving him a second veo .^h. subject to the first. Even if the first mortgagee has agreed io lOi further advances on the property mortgaged to him, the mortgao. ;S under no obligation to take further advances from him and from no one else, and if the mortgagor chooses to borrow money from someone else, and to give him a second mortgage, the mortgagor thereby releases the first mortgagee from his obligation to make further advances. Whatever prevents the mortgagor from giving to the first mortgagee the agreed security for his further advances releases the first mort- gagee from his obligation to make them. A plea of exoneration and discharge before breach would be a good defence at law to an action by the mortgagor against the first mortgagee for not making further advances. If, notwithstanding his release, the first mortgagee makes further advances, with notice of a second mortgage, he is in no better position than any one else who does the like (6)." iy) (1861) 9 H.L.C. 514. {s) West v. Williams [1899] 1 Ch. 132, C.A. (o) [1899] 1 Ch. 132, at p. 143 (6) West V. Williams [1899] 1 Ch. 132, at p. 143. ('HAPTKK XXI. (*()XS<>LII).\TI(»N. Tf two or more distinct n»(jrti^a<>v,s of ditt'ort'iit cstati's iioetrine of aiv vested III the saiiio person or it ii inortijaire is iiiiuie oi .. „ one (jstiite, and afterwards a niortifaec is made of another (istate t(j secure the same sum with further advances, tlie morti>a«j'ee or liis transferee, so lonij as both securities are suhsistino', may insist that all the morte;ay'es shall be redeemed toijether (/')• Mort^jai^es on separate properties niai v. Fletcher (1880) 14 Cli. D. G99; Walts v. Symcs (1851) 1 DeG. M. & G. 1240; Johnston v. Reid (1881) 29 Gr. 293. ((•(■) (1880) 14 Ch. D. G99, at p. 708. (j) Cummins y. Fletcher (1880) 14 Ch. D. C99. (fc) Ke Union Assurance Co. (1893) 23 Ont. 627. (/) Pledge v.Carr [189.5] 1 Ch. 'A; S.C. snl mm. Pledge v. fVliite [1896] A.C. 187; Silrerthorn v. Gl-:ebrook (1899) 30 Ont. 408. 810 HKiHTS AND LIAIIIIJTIKS OK THK MO|{T(iA(iKK. O;:: «:■•: »• • .. ►. ■ m* >• all ► ■■.■».. ►-••, V- -. ...S !::ic.;:::: c;: .SiiriiliiM at'ler hhIo. Wlibie equity ol' redemption in one property is asHigiied before the making of mortgage ontlieotlier property. iiii; title uiiiltT tlif nioi'ti'lii'oi' to nil ol" the morti'ii^cd |)r(j|)('rlics, or to any one ol" tliciii. or to a |iai1 of one or iiiort- ot" tli«'iii ( //( ). So, wlifi'c a iiioi't;;aiji'('. under a powiT of sale, sells the lands coiiipi-ised in one of Ids in()rt<;a;;i's, and a suiplus ri-niains after satisfying; tliat nioi't<.ja;je, lie may hold tlie surplus and consolidate it with othei- niort<;a^es whit-h he holds against other pi'optaties of the ni()rt<;a^'or ( 7/ ). 'riiei'e is no ritjht to consolidate wlure th ■ ('((uity of redemption in out' of the properties is assi) In re Walhampton Estate (1884) 26 Ch. D. 391. (7) (1880) 13 Ch. D. 639, at p. 646; affirmed on appeal SKft nom. Jennings v. Jordan (1881) 6 App. Cas. 698. CONHOLinATloN. :n7 or I*' us ho of cr of [iio rt'iU'iiiiition itrejiidii-e the n .ht« of tiiH iiiortniiK«'i'. Tliin ciiii only iifiply to ri>?lit8 nlremly Kivcr. (. • iiriHiiij; from iictH already done l>y tlio iiiortRnnor. The name priiu ,>le will prevent the niortt.'Mt;or from throwing u jjrenter hiirden or, the piirtdniHer of hiw ei|uity of redemp- tion hy any act done s'liisefiuently to the sale or mortya^'e of this estiite. It is true that a mort>ja>;ee of one extate may yt't '" mid conHolidate the mortf^nRe on anotlier estate a>;ainst a purchaser of the etpiity of retlemption of one of the estates, even though at the time of the piirclinse tlie two mortpases were vested in different jiersons, provided botli the mortRa^es existed previously to the sale of the efinity of redemption of one of the estates. Hut this equity arises out of aets done by tlio vendor of the e<|uity of redemption previously to tlie sale; and the act after the sale necessary to yive elTeet to the rij?ht of consolidation — namely, tiie union of the mortj^ajtes on lioth estates in one person — is an act of jiersons whc are no i)arties to the sale of the e«iuity of redemption and not bound to the purchaser by any contract inconsistent with tlie claim to consolidate. In o!ir opinion, the purchaser of an .*quity of redemption takes subject to such equities as arise from acts previously done by his vendor. He is subject to these equities, tiiough acts of persons other tlnin the vendor may be necessary to give rise to the equity. But in our opinion he is not subject to any equity arising from acts done by his vendor subsequently to the sale, and therefore as against a purchaser of an equity of redemption of an estate there can be no consolidation of a mortgage subsequently created on another estate." In Re Walhmnpton Estate (r) tlio owner of estate A. Volunteer, executed a voluntary settlement of the estate, and then mortgaged it. Afterwards he mortgaged estate B., and both mortgages came into the hands of the same person who claimed to consolidate them as against the persons claiming under the settlement. Kay, J. in delivering judgment said : — " I consider the claim for consolidation on the part of the mort- gagees to be utterly unfounded. It is true that the voluntary settlement is void as against the subsequent mortgagee to the extent of the mortgage. But because that mortgagee afterwards obtains from the mortgagor another security is he to be allowed to consolidate his two securities, so as to throw on the estate, subject to the settle- ment, any part of the sum which may be owing to him beyond that originally charged thereon ? In my opinion he clearly cannot do so. The Statute of Elizabeth gives him no such power. It makes a voluntary settlement fraudulent and void as against a subsequent purchaser, but it only makes it void to the extent of the purchaser's interest therein. No authority has been cited which bears out the contention of the mortgagees in this case, and I therefore hold that the settled estate is liable only to the extent of the sums charged thereon by the mortgages expressly affecting it." If the owner of two properties mortgages both to A., and subsequently mortgages one of them to B. and (>•) (1884) 26 Ch. D. 391, at p. 393. aiH IlKiHTS .\NI> LIAIIIIJTIKS OF THE MOKTdAdEK. ("I ..» ■■•>... •":■': c ■ ,;r. ii::t':;! « r: -•'■» f^'"t;:::: c:::;;i'ii T\v«> or nior»' iiiortKi'K'"* '" (UlTcrciit ptTWOIIM iitiitiMl iiftiT s«' vera MCI) of tM|uity. jfivcs (I scooiid mort^rtj^o on tlie otlu^r to A., tlu; latter ciuuiot consolidate so as to obtain priority for both liis niortpit^cs over H.'s niortgajje (n). Wiicri' two or more niortpi^es oiiijinally held by different persons do not become united in title in one person until after the e(|uity of redemption in one of them has been assij^ned, the person holdino; the mortniption iiave reiltMiiiitioa afterwards heen assij^nod toditterent persons, the iiiort;,'a;^t'(' Hl't'TwiuilM may enforce the ri<;ht a<;ainst tlu^ assij^uees, althon<;h they had no notice of the exist»'nee of the rijjjht (//). As to mort^a^es made on or after the 1st day of January, IH82, it is provided in En«;fland hy the Convey- anciwj (dvl Lnw of Propevtij Act, ISSl (2), that there shall be no rij^ht of consolidation in the absence of a contrary intention expressed in the mortgajjes or one of them (f(). In Ontario the Rcjfistri/ Art {!>) doos not deal in express terms with the ritjht to consolidate. But the statute affects the doctrine indirectly ; for a mortgagee may not consolidate as against subseijuent mortgagees or purchasers of one of the mortgaged properties, unless they took with notice of the right to consolidate (c). And so where a purchaser of the mortgaged lands eiujuires of the mortgagee before purchasing the amount due on the mortgage and acquaints him of his intending purchase, the mortgagee will have no right as against such purchaser to consolidate his mortgage with another («•) Vint V, Padgcf (1858) 2 DeG. & J. 611; approved in Pledge v. White [1896] A.C. 187. (x) Re Raggett, ex parte miliams (1880) 16 Ch. D. 117. (y) Jones V.Smith (1794) 2 Ves. 372; Jennings v. Jordan (1881) 6 App. Cas. 698. (s) 44 & 45 Vict. Imp. c. 41, s. 17. * (a) i:ird V. Wenn (1886) 33 Ch. D. 215. (b) R.S.O. (1897) c. 136. (c) Brower v. Canada Permanent Building Association (1877) 24 Gr. 509; Johnston y.Reid (1881) 29 Gr. 293; Miller v. Brown (1882) 3 Ont. 210; Smith v. Smith (1889) 18 Out. 205. 320 RIGHTS AND l.lAmLlTIES OK THE M()l!T(;Ai IKE. In (.1.. '•-:.: ic;: (•■' -" (I . •»...n ':::j!tr::;;:. '->*.-. .Ill' ■~i»> Kight to consolidate is merely equitable. Registry Act Summary of law of consolidation security on otlicr lands, it" lie neglects to notify the pur- chaser of his I'ight. Tim rejjji strati on of the niortj^atje on the other lands is not notice (. CONSOLIDATION. and th(} e(|uitie8 of redemption remain in the mortgagor or are all assigned to one person, either before or after the mort- gages become united in title, the holder of the mortgages may consolidate as against — (a) The holder of the etiuities of redemption and his representatives ; (h) S ibsequent purchasers ami mortgagees of the e(iuities of redemption, or any of them, or any part of one or more of them, with notice of the right. 2. Where the mortgages sought to be consolidated do not become united in title until after the severance of the equities of redemption, the holder of the mortgages may not consolidate as against subsecjuent purcliasers or mort- gagees of the eijuities of redemption. The principle of this rule is that no right to consolidate exists at the time when the interests are ac([uired, and the mortgagee cannot acquire the right as against subsequent purchasers or mortgagees after they have advanced their money. 8. Wlitnv the mortgages souglit to be consolidated are made l)y the same mortgagor, and some of them are made before, while others are made after, the severance of the eqiiities of redemption, the mortgagee has no right to consolidate as against subsequent purchasers or mortgagees of the equities of redemption. The r(;ason of this rule is that a mortgagor who has assigned the e(|uity of redemption cannot by any subse- fjuent act prejudice the right of his assignee. 321 CHAPTER XX 11. Merger. When it arises. I* > .. (14 .ii Merger depends on intention. Merger arises when two or more estates in the same property become vested in the same person. Thus wliere a mortgage in fee simple and the estate subject thereto become vested in the person who is tenant in fee or in tail of the estate, it is presumed that the mortgage is merged in the inheritance of the estate and extinguislied : but no such presumption arises in the case of an owner who is tenant for life. The presumption in either case is rebuttable by evidence of contrary intention (49. (0 See also North of Scotland Mort>/(i(i<: Co. v. (Icrmun (1880) 31 U.C.C.P. 349. (/) Adams v. Anqcll (1877) 5 Ch. 1). (i34 ; Thome v. Cann [1895] A.C. 11. :h24. RIGHTS AND LIABILITIES OF THE MORTGAGEE. I'M .. *■ I.I. H l>4 ...Jl .'I." ."r'aih X / ^ words outweigh cir- ciinistaiK't's. Benefit of person l>iiy- iug off charge. Assignment of charge to third person. Charge and estate must unite in same i)ersou during his life. No merger if it would give priority to interven- ing incum- brancer. In certain cases the language of tlie deed purporting to extinguish a cliarge has been held to outweigh all indications of a contrary intention to be gathered from surrounding circumstances, or to be presumed from the interest which the person paying the charge had in keeping it alive (k). The intention to keep a charge alive will be presumed when it is for the benefit of the person paying it off or otiierwise acquiring it that it should be kept alive, and this presumption may countervail language in the deed pointing to an extinction of the charge (l). The fact that a person paying off a charge upon an estate in which he has only a partial interest has neglected to take an assignment to a trustee for himself, is not of itself sufficient to rebut the presumption that the charge was intended to be kept alive (m). The presumption in favour of merger does not arise unless the absolute interest in the charge and in the estate subject to the charge unite in the same person during his life. Thus, no presumption arises where the estate in fee of the person entitled to the charge is subject to limitations which only beconie capable of taking effect by his death, or where the owner of the estate charged has during his life merely a reversionary interest in the charge (h). Where a mortgagee purchases the equity of redemption there will be no presumption in favor of merger where the effect of a merger would be against the interest of the (A-) Parry v. JFright (1823) 1 Si. & St. .369; 5 Russ. (1828) 142; Broirn v. Stead (1832) 5 Sim. 535; Smith v. Phillips (1837) 1 Kee. 694; Medley v. Harton (1844) 14 Sim. 222,226. (0 Irbyv. Irby (No. 3) (1858) 25 Bear. 632; Adamsv.Angell {1S77) 5 Ch. D. 634; Thome v. Caiin [1895] A.C. 11; Liquidation Estatea Purchase Co. v. iVilloughhy [1896] 1 Cli. 726. (w) Redington v. Rvdington (1809) 1 B. & B. 131, 140; Morley v. Morley (1855) 5 UeG. M. & G. 610, 619. (>i) Wiindham v. Lord Egrcmout (1775) Ambl. 753; Wilkes v. Collin (1869) L.R. 8 Eq. 338. MER(iER. 325 mortgagee, as, for example, where an intervening incmu- brancer would thereby obtain priority (o). T\ui Act retyped iiKj MortijiKjcs of Rml Estate {q) pro- Merger of . - „ ,, ' mortgage vides as lollows : — debt in eqnitv of 8. Any mortgagee of freehold or leasehold property, or any assignee rtHloiiiiitiou. of such mortgagee, may take and receive from the mortgagor or his assignee a release of the equity of redejnption in sueh property, or may purchase the same under any judgment or decree or execution without thereby merging the mortgage debt as against any subsequent mortgagee O'" •■ "son liaving a charge on the same proj)erty. 9. In case such prior mortgagee or his assignee accpiires tlie equity of redemption of tiie mortgagor in the manner aforesaid no suiisecpieut mortgagee or liis assignees shall be entitled to foreclosure or sell such pro])erty without redeeming or selling subject to the rights of sueh prior mortgagee or his assignee, in the same manner as if such prior mortgagee or his assignee had not ac(iuired such equity of redemption. 10. The preceding two sections shall not aflfect any v>riority or claim whicli any mortgagee may have under the registry laws. Where a mortgagee purchases the e(]nity of redemption at a sheriff's sale tliis will have the effect of merger as to the mortgagor although not as to a mesne incumbrancer (r). In British Columbia it has been held that a convey- ance of the eijuity of redemption by a mortgagor to a mortgagee of lands does not constitute a discharge of the mortgaj.",' by merger, unless it is made to appear that such a result was intended by the parties ; and when a mort- gagee applies to register a conveyance of the e(juity of redemption the registrar should not mark the mortgage merged unless at the request of the mortgagee (.s). But where the assignee of a term subject to a mortgage Merger of a purchases the fee, the two estates are merged and the fee. mortgage becomes a charge on the fee. The purchaser in that case is not entitled to a lien for his purchase money as against the mortgagee {t). (o) Forbes V. Moffatl (1811) 18 Ves. 384; Davis v. Barrett (IS.ll) 14 Beav. 542; Elliott v. Jayne (18G5) 11 Gr. 412; Maclentian v. Gray (1888) 16 Out. 321. {q) R.S.O. (1897) c. 121. (r) R.S.O. (1897) c. 77, s. 32; Woodruff \. Mills {\mo) 20 V .C.Yl. 'A. (s) In re Major (1897) 5 B.C.R. 244. (<) Building and Loan Association v. McKencie (1897) 24 Ont. App. 599; 28S.C.K. 407. :i2G KKJHTS ANT) LIABILITIES OF THE MORTGAUEE. u> .... And wliere the morttragor or other person personally lial)le to pay the mortgage debt pays ott' the mortgage, or purchases the mortgaged property on a sale by the mort- gagee under liis power, the mortgage is necessarily extinguished, and the mortgagor cannot set it up against a subsecjuent incumbrance created by him (u). Where a mortgagee of lands buys up the equity of redemption, taking a conveyance to himself, his cliarge will merge or not, according to the bargain between tlie parties at the time of iiis obtaining the transfer (v). (n) Otter v. Lord Faux (1856) 2 K. & J. 650; 6 DeG. M. & G. 638; Piatt V. Mendel (1884) 27 Ch. D. 246. (v) Fhilai)son v. Mill.i (1865) 11 Gr. 218; see Barkcrr. Ecclcs (1871) 18 Gr. 440. - ;~'::;i ST PART III. RIGHTS AND LIABILITIES OF THOSE CLAIMING UNDER THE MORTGAGEE. CHAPTER XXIII. Rights of Assignee of Mortgage. A inortj,rago ,nay be assigned and the land conveyed Mortgage to a third person, together with the mortgage debt and assigned. the benefit of the powers and covenants contained in the mortgage. The rights, powers, remedies and habilities of an Generally, assio-nee of" a mortgage under a valid assignment are, in general, the same as those of the mortgagee himself. Thus . he may distrain, or maintain an action on the covenant for payment or for foreclosure or sale, or he may take possession of the mortgaged premises, or he may sell under the power of sale contained in the mortgage, or he may discharge, assign or reconvey as fully as the mort- o-aoee himself might have done. ° '^He will not, however, have the benefit of the powers MusU.e and covenants contained in the mortgage, unless they are assigned. validly assigned to him. And the covenants, in order that they may be assigned, must be made expressly with the vnort^a-ee and his assigns ; or if the assigns are not expressly named the covenants must be such that they may be validly assigned, although the assigns are not expressly mentioned. 328 PERSON'S f"LAIMI\<; UNOEH MORTGAGEE. i:: ■ d. { ;.'^-:i. ( •• » ^*H V Iti *■•«!, \ • '. -a ', "rail. ..:;n .«;;::; Power of sale. License to cliMtrain. Assignment of mortgage. Mortgage debt. Assignmeiit after IJlst December, 1897. A power ot" sale is a personal power and cannot be exercised by the assignee unless expressly reserved to him in the mortj^ai^e deed (a). It is pi'obable that a license to distrain cannot l)e exer- cised by the assignee unless he is expressly named. The assignee of a mortgage, moreover, cannot distrain for arrears of rent which have accrued before the assignment (6). An assigmnent of mortgage is in practice eti'eeted by an absolute assii^nment of the mortiram' and tlie moneys secured thereby, and the benefit of all powers, c(jNenants and provisoes contained therein, and also the [jowcr and authority to use the name of the mortgagee, his heirs, executors, administrators or assigns, for enforcing the performance of the covenants and provisoes in the mort- gage ; and also by the conveyance of the mortgaged lands. At law the mortgage debt being a chose in action was not, in general, assignable so that the assignee could sue for it in his own name. Assignments of choses in action are now governed by sub-section 5 of section 5S of the (Jntario Judicature Act (c) which is as follows : — - 68. (5) An absolute assignment, made on or after the 31i?t day of December, 1897, by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal chose in action of which express notice in writing sliall liave been given to the debtor, trustee or other person from whom the assignor would have been entitled to receive or claim such debt or chose in action, shall be effectual in law (subject to all equities which would have been entitled to priority over the right of the assignee if this section had not been enacted) to pass and transfer the legal right to such debt or chose in action from the date of such notice and all legal and other remedies for the same and the power to give a good discharge for the same without the concurrence of the assignor {({) . This provision is not retrospective, wlu'rein it ditt'ers from the corresponding section in force in England. (a) lie Gilchrist ami IsUmd (1886) 11 Ont. 537. But see K.S.O. (1897) c. 121, s. 29 (1), supm p. 1C8. (h) linncnv. The Metropolitan Counties etc. Society (1859) 1 E. &E. 832. ((■) R.S.O. (1897) c. 51. (rf) In Nova Scotia the corresponding section is R.S.N.S. (1884) c. 104, order LXI; in the North-West Territories a similar section is to be found in c. 41 of the Consolidated Ordinances of 1898. ■11' mm UICHTS OF ASSICXEE OK MOHTOACE. :{2(> Formerly assitfiiinontH of choses iii action were governed AssiKmiHiit . iwi'iir ■;< 7 1 t 1 \ made beloie by sections and 7 oi the Mcirnatiu' Anwadment Act (*') ;jist Deci-m- wliich were as follows: — ^^^'' ^^^'' 6. In the Tiext suceeedinf; six sections of this At't, "Assi(?nee" shall int'hulc any person now beinjj or hereafter l»ecomiiiF M()|{T-nee could not sue on the covenant for payment, but the n»orttj;a<;or could not redeem without payment of the amount ). An assitjnment of morttfage will not pass arrears of rent which accrued prior to the assiorunent, unless expressly mentioned ( 'p). It is not noces.sarv' to a valid assio-nment that the morttfai^or should concur therein or that notice thereof siiould be gi\en to him (q). But it is advi.sable either that the morto;a<»-or should bo a party to the assignment, or that proof of the state of the account should be given, and that notice of the assignment should be given at once to the mortgagor and an admission obtained from him of the amount due and owini{ on the mortgage. For if no notice of the assion- ment is given to the mortgagor he may pay the mortgage moneys, or part of tiiem, to the mortgagee, and the assignee will be bound b}' such payment. Apart from statutory enactment, an assignee under an afisigmuent of a mortgage without the mortgagor's concur- rence can only claim what is owing on the security on the {ill) Doe (I. Holdmwss V. Donelhj (IS'iG) ;j Kerr. (New Bruns.) L'38. (n) Jones v. Gibbous (1804) 9 V'es. 407. {))) At/moH V. Dean (1851) 3 Mtic. & G. 344. («/) Jones V. (iibhmis (1804) 9 Ves. 407. Gpiieral Kniiit ol IjUkIm (lues not pans niort^jajjeo's title. As.siffiiiiieiit of lands pUSS.S tlie mortp;af^<' debt. But not arrears of rent. Mortgagor need not concur. Notice to mortgagor. Assignee takes sub,ieet to actual state of accounts and to equities. :v.\2 I'ICltsoNs ( |,AIMIN'(J UNDKK .M<)K'niA Vict. clia])ter 7 (Ont.). Prior to that enactment it was lield tlial an assi;,'Mee of a nioi't|ja^(! could not set up the del'ence of pui'chase for value without notice (tt). Section 3(5 of tlie Art rrspertintj thr Lmr mi'l Tnnis- fr I' (»f Property (av) is iiH ioWowH: — 30. It, shall in no case be necessary, in order to maintain the (icfcnce of a purchase for value without notice, to prove |)aynient if the niort- gaf^e money or jiurchase money, or any part thereof. In SiiKirt V. McKirii.ii{v) the registered owner of land inort<.faj^ed the same, and afterwards conveyed ah.solutely to a purchaser, who rep^^tered liis deed before tlie mort- gaj^e was registered and trave a second nfort^jage to his vendor to secure purcluise money. Subse(|uently the vendor a.ssi«(ned his mortgage to a purchaser who had no Formerly defence of purchase for value not allowed. Proof of payment. (>•) MnttUvH-sv. n'allinpi (1798) 4 Ves. 118 ; 18R.C. 24:i; Mrritrrson V. Dougan (18G2) 9 Gr. 258; Wilson v. Kyle (1880) 28 Gr. 11)4. (.v) R.S.O. (1897) c. 121. (/) In Manitoba the corresj/onding sections are to be found in K.S. Man. (1891) c. 99, ss. 1, 2. («) Jti/ckiHun V. The Canada Life Assurance Co. (1870) 17 Or. o^O; Smart v. McKican (1871) 18 Gr. G2U; but such a defence was held to be good in Miiiry. Ihinnvtl (18()4) 11 Gr. 85; Totlvn v. houglas (18()H) 15 Gr. 12(5. {mi) K.S.O. (1897) c. 119. (r) (1871) 18 Gr. G23. UK 11 ITS OK ASSKJKKK <»|' MoimiAfiK. '.y.v,i notic»; dl* tin- jtiior iii()rt;,'ii;,n'. It was licM tliiit tlif piir- cliascr'.s iii()rty;ii;;<' in tlw IuiihIs of the asHi;;in'(! wum Hul)jt*t to tlu' lii'ii or clitu';;*' oi" tin- vcmlor'.s iiiort;;ii;(tM'. It will he observed that tlit; imrcliuscr iiiiiy, uixltT .section -i'-i of the Ac! rcsjii'itl it;/ M(ni(/(i(i^'s of Rial Kstufi', set up this (It't'cnc*^ except us ii^iiinsl the inoi'ti^ii^^or, his heirs, executors, luhiiiiiistrutoi's iiiul assitfiis. There is h'nv<'Ver a distinction hetweeii e(|uities ;4ro\vin<,' DiHtinction , ,, ,, 111- i- 1 , 1 ii Wotwi't'ii out OI the pei'sonal relations ol the ni()rti;ay;or an Equitable liens. Foi'ffed assiffiimeiit. Covenant by trustee . Assignee takes subjeet to the state of account between mortgagor and mort- gagee. an a^n'Oincnt luid bt-on mado to mortgage certain lands, but otlu'r lands had been included in the mortgage by mistake. The plaintiti", as piu'cliaser from the mortgagor, claimed that tlie defendants, wlio were assignees of the mortgage I'or value without notice, took subject to his ecjuity t > l^ave a reconveyance of the lands which had been included by mistake. It was held that under the statutory pj'ovisions then in force corresponding to section •i'] of the Act reKpeetiit;/ Murtjpffjes of Real Esfntc above «|Uoted and to section !)-S of the Registry Act the plaintiff could not recover. Section 98 of the Rcrjisfri/ Act{z) is as follows: — 98. No equitable lien, charge, or interest affecting land shall be deenicHl valid in any Court in this Province, as against a registered instrument executed by the same party, his heirs or assigns; and tacking shall not be allowed in any case to prevail against the provisions of this Act. But where as between a mortgagee and Ins assignee the signature of the mortgagee to the assignment has been forged, or has been procured by the fraud and misrej)re- sentation of a third party, the assignment is void even in the hands of an innocent holder, and the defence of purchase for value without notice is unavailing (r< ). Where a person holding lands as trustee executed a mortgage at the re Mortgage for larger sum tlian sum actually advanced. Notice. Payment to mortgagee without notice of "^ assignment. ] Exchange of lands subject to mortgages a.s to thi.s ; and it was directed that if this should be found to be so, the bill should be dismissed with costs (/). But wliere a mortgagor acknowledged in the mortgage deed to have received £250 although in fact he only received £91, it was held that as against an assignee of the mortgage, wlio purchased in good faith for value without notice and before maturity of the mortgage, he could not redeem except on payment of the full amount (_^'). Where, however, the assignee has notice that the full amount was not advanced, although there is a receipt indorsed, he is bound by the actual state of the accounts A mortgage was held by an assignee for the benefit of the mortgagee who assigned it, and the mortgagor, with- out notice of such assignment, paid the mortgagee and obtained from him a discharge under the ^•tatute. The court held the payment good, and ordered tlie assignee to execute a release, it being doubtful whether under the circumstances the discharge from the mortgagee would revest the property in the mortgagOT" (h). A., the owner of lot 1, mortgaged it to his solicitor who assigned the mortgage to a third party. A. then agreed with B., the owner of lot 2, to exchange lots and to have the mortgage transferred to lot 2. A's solicitor who acted for both parties prepared a new mortgage on lot 2 to him- self and did not inform A. or B. that the former mortgage on lot 1 had been assigned. Afterwards A. paid off' the mortgage on lot 2 to the solicitor and obtained a discharge. The solicitor after paying the interest on the mortgage on lot 1 to tiie assignee for several years made default, and (/) Baskerville V. Ottcrson (1873) 20 Gr. 379; Henderson v. Brown (1871) 18 Gr. 79. (J) Biekcrtonv. Walker (1885) 31 Ch. D. 151, l)ut see Prcssei/ v. Trotter (1878) 2(i Gr. 154; Eagleson v. Hoice (1879) 3 Ont. App. 500; Manlen v. London Loan Co. (1890J 23 Ont. App. 139; 20 S.C.R. 443. ig) Manleij v. London Loan To. (189G) 23 Ont. App. 139 ; 20 S.C.R. 443. (/*) McDonongh v. Dougherty (1862) 10 Gr. 42. See also Kngerson V. Smith (1862) 9 Gr. 16. RIGHTS OF ASSIGNEE OF MORTGAGE. 337 >uiid the assignee applied for payment to A. who was then first made aware of the assignment. Under these circunj- stances it was held that the payments made by A. to the solicitor on the mortgage on lot 2 did not discharge the mortgage on lot 1, and that B. the purciiaser of lot 1 was affected with notice of the assignment of the mortgage on lot I, as it was registered before he purchased, and was also affected with constructive notice by reason of his omission to make enquiries when he purchased ; and the assignee, therefore, was held to be entitled to foreclosure (^'). The assignee of a mortgage, after maturity, takes the mortgage subject to all equities, as well those of third parties, as those of the parties to the instrument (k). The assignee is entitled to enforce payment of the stipulated interest, notwithstanding that at the time of the creation of the incumbrance the mortgagees, a loan com- pany, could not legally have reserved such a rate of interest (i). The purchaser of an equity of redemption took an assignment of a charge upon the property and paid off the incumbrancer. It was held that the charge was not extinguished, for there was no evidence in the deed or the circumstances of any intention to extinguish the charge, and it was for the purchaser's benefit to keep it alive (n). In New Brunswick it has been held that an assignee of a mortgagee in possession may set up the mortgage as a defence to an action of ejectment by the owner of the equity of redemption, though the mortgage is more than twenty years old, and the right to recover thereon is barred by the Statute of Limitations (o). An assignment of a mortgage by way of mortgage, called a sub-mortgage, may be made either by a formal (j) Gilleland v. Wadsicorth (1877) 1 Out. App. 82. (k) Elliott V. AfcConnell (1874) 21 Gr. 27G. (I) Reid V. Whitehread (1864) 10 Gr. 446; 2 E. & A. 580. in) The Liquidation Estates Purchase Co. Ltd. v. Willoughhy [1898] A.C. 321. {o) Doe d. Slason v. Hanson (1857) 3 All. (New^Bruns.) 427. Assignment after maturity. Interest. Assignment of mortgage to purchaser of equity of redemption. Sub- mortgage. 338 PERSON'S CLAIMING UNDER MORTGAGEE. Id ti V <> ...tl •r: ci 'x: ::ii Disclmrge of sub mort- gage. Sub-mort- gagee liable to account to his assignor. Action by sub-mort- gagee against his assignor. Mortgagee a surety if he covenants with assignee to pay. assignment of the mortgage subject to redemption, or by a deposit of the mortgage and other title deeds in which case it will be an equitable sub-mortgage ( p). Under a sub- mortgage nothing can be recovered from tlie original mortgagor in excess of the amount due on the mortgage. and on payment of that amotmt the sub-mortgagee must deliver up the mortgage to the original mortgagor. It is doubtful if a sub-mortgagee can give a valid discharge, assignment or reconveyance. It is advisable in such a case to re-assign the mortgage security to the original mortgagee and to have him execute the discharge or reconveyance. Where a derivative mortgagee, by representing himself to be tlie owner of the mortgage, obtained a release of the equity of redemption which he afterwards sold for more than was due to him from liis assignor, it was held that he was bound to account to the assignor for the profit {q). If a sub-mortgage contains no covenant for payment an action cannot be maintained by the assignee against the assignor unless there is evidence of a loan. Thus where a mortgagee in consideration of So 30, acknowledged to be paid, assigned to the plaintitf' a mortgage for $360 with a proviso that the assignment should be void on payment of the S530 and interest, but the assignor did "not covenant to pay, it was held that no action could be maintained for the mortgage debt (qq). Where an assignor covenants to pay the mortgage moneys to the assignee if default be made by the mortgagor, the assignor thereby becomes a surety, and may be dis- charged if the assignee by agreement gives time for payment to the mortgagor without reserving the rights of the surety ; and where the agreement is a material alteration of the original contract, as for example if it contains a (p) Ex parte Smith (1842) 2 M.D. & DeG. 587. iq) McLean \. Wilkins (1887) 14 S.C.R. 22. {qq) Pcannan v. Hiiland (18G2) 22 U.C.R. 202; see also Ball v. Morlcy (1853) 8 U.C.R. 584. RIGHTS OF ASSKJNEE OF MORTGAGE. :i89 stipulation for an increaHed rate of interest, tlio surety is discharged notwithstanding tlie i-eservation of his riglits (r). But if the assignee takes a new mortgage for tlie same debt on tlie same land from a purcliaser thereof from the mortgagor, with an extended time for payment, the assignee refusing at the same time to discharge the old mortgage, that will not be sufficient to discliarge the assignor (s). An assignor is not liable to the assignee for the costs of an unsuccessful action to enforce the security. Thus where the assignee brought a foreclosure suit upon a mort- gage for £350, on which only £250 had been in fact advanced, and the court disallowed the additional £100 and the costs of the suit, it was held that he could not recover these costs fi'om his assignor, upon the covenant for validity of the security (t). The assignor of a mortgage is liable to the assignee on a covenant thatj the mortgage is a valid and subsisting security, if before the assignment the lands have been sold for taxes (?6). Where a mortgagee assigned the mortgage, covenanting for the payment of the mortgage money, and subject to an agreement between the mortgagee and the assignee that the former might have a re-assignment of the mortgage on payment of principal and interest due thereon, and the mortgagee afterwards made payments under his covenants, it was held that he was entitled to a lien therefor as against the mortgagor ( t'). Liiibility of assignor for costs. Mortgagee entitled to a lien on the lands for money paid to the assignee. ((•) Bristol cf If^cst of Entjland Land rjo. v. Tai/lor (1893) 24 Ont. 28G; Trust Corporation of Ontario v. Hood (1896) 23 Ont. App. 589. (s) Trusts Corporation of Ontario v. Hood (1896) 23 Ont. App. 589. (/) Sturgess y . Bitner (1861) 11 U.C.C.P. 102. (m) Real Estate Investment Companif v. Metropolitan Building Society (1883) 3 Ont. 476. (v) Fleming v. Palmer (1866) 12 Gr. 226. CHAPTER XXIV. Rights of Executors, Administrators, Heirs and Devisees of Mortgagee. I c'v «i:r n tM ...h i::': 1. -...ii ;.::> C'lii::;: > Personi'l representa- tive entitled to mortgage money. Devolution of Estates Act. T' t executor or administrator, and not tlie lieir of a niortgrt.wee in fee, is entitled to the money secured by the mortgage (a). Independently of statute, a general devise of lands, unless a contrary intention appears from the will, passes the legal estate in lands vested in the testator as mortgagee (h). Prior to the Devolution of Estates Act(c) the estate of the mortgagee in the mortgaged lands devolved on the death of the mortgagee upon his heir. In Ontario much doubt and confusion has been created by the Devolution of Estates Act, and in some cases it is difficult to determine in whom the legal estate becomes vested upon the death of the mortgagee. Formerly in the case of a mortgagee dying before the 4th day of May, 1891, the mortgaged lands devolved upon the heir who was the proper person to reconvey. Section 11 of the A ct res-pectiiig Mortgages of Real Estate {cc) empowered the executor or administrator, oil payment of the mortgage moneys, to discharge the mortgage, but the legal estate remained vested in the heir who, it seems, still had power to reconvey. Section 4 of the Devolution of Estates Act provides that all real estate vested in any person dying after the 1st day of July, 1886, shall on his death notwith- standing any testamentary disposition devolve upon and (a) Hiornhorough y. Baker (1675) 3 Swanst. 628; 18 R.C. 231. (b) In re Stevens' Will (IS6S) L.B. 6 Eq. 597. (e) R.S.O. (1897) c. 127. {cc) R.S.O. (1897) e. 121. RIGHTS OF EXECUTORS, ETC., OF MORTGAGEE. 341 become vested in his legal personal representatives, who under section 10, while the estate remains in them, .shall be deemed in law his heirs ( I. '...3 Intcif St of u 'I'lic ('stiitr, I'i^jlit, title and interest ol' ii !ii()rt<(a^'»'t' JxiLiMo'i'ii uixlcr a n'oistorod in()i't;(a<;(' of land may he Hci/ed undof execution. ji \s\'\\. ol' ext'cution ai^aiiist the iii()i't<(a<;(;e. 'I'liis In |)i-(>vid('(l l)y the t'oUowin^' sections o*" e KccciUion A<'t {((): — 23. (1) Thi' word " pliiiiitiff " or the vvora " cmlitor " in this Hcetioii iiR'ludcH iiuy ixtsoii iiiiiih*i1 in a writ of (execution iis tiic IX'tsoii fov wlioin tlu' li'vy is to t)t> inadt'. Tiie word " d»'f«Midaiit " or the svord "del)tor" incliideH any perHon of wIioho i)roi)erty the money i« directed to be levied. HiierilT niny fjive notice of seizure to reKistrar, . •o.Jl Form of iiotlee. -. 1 (2) In cane a sheriff to wlioni a writ of c-xeeution is addressod Is informed on behalf of tiie phiintifT, that the defendant is >, niort(?af?ee of land and that the niortf^af?e is rej^istered, or that the defendant is entitled to receive a sum of money eliaryed ujion hinds by virtue of any re^fistered instrument, and in ease the sheriff is required on ))eiialf of the jihiintiff to seize the mortpiffe or cduirf^e, and is fur- nished in writing; with tiie infornnition necessary to enable him to pive tlie notice liereinafter mentioned, lie shall, ui)on ])ayment of the proper fees, forthwith deliver or transmit to the Hef^istrai' or Master of Titles in whose office the mortpaf^e or other instrument is ref^is- tered, a notice in the form or to the effect following;: — To the Ueffistrar of {or as the aisc »i(iji he) . Hy virtue of a writ of Jieri facias to me directed and issued out of the lliffh (Jourt of Justice at {or the ('ounty (.'ourt of the County of ), whereby I am connnanded to levy against the floods and chattels of A.H. the sum of .$ for debt, and $ for costs lately adjudfted to be i>aid ))y the said A.B. to C.I)., besides the costs of executioiis, 1 have this day .seized and taken in execution all the estate, ii}j;ht, title and intei'est of the said A.H. in a certain mortfiC'iKi' made by X i. to the said A.li., and which bears date on the day of and was registered in the registry ottiee for the County of on the — day of A.D. , as number (or the said morlt/age or other instntnioit may he tJeserihed in any other manner hy reference to ilatcs, i)artiu\[ i'i'^;iMlriitioii (tf Uic saiil iidlii-f, tin- iiiltTt'st of llif I'poii rej^is- cxcciitiiiii ilclitur ill llic UMiytt^tnit' or otliiT iiislniiiicnl, mid in llic tnitioii of IiiihU tlii't'ciii ilcHci'ilifd, mill ill tlic iiniiii'ys llici'fliy si-ciirfd mid in iill noticti fdvcnmils mid stipnliilimiM for the Hcciiriii),' of |iiiyiiH-iit tlii-rtMil', hIiiijI inttTt'sl of lie li'iiind liy tlic fxt'cution, mid siudi rcifiMlnition slnili lie di'iMiifd lo niortf^'iiL't't' tic nolif'f of the siiiil execution iind seizure to nil jierMoiis who niiiy liound. tilci'ciifter in liny way ac<|iiii'c any interest in the in<>rtKH),'c, IiumIh, iiioiieys, or ciivenmits; mid the riniiln of the siierilT and execution creditor stinli h«ve jiriority over the rights of all such iieiNons, miiIi- ject as re;,'aids the inort)^M>,'or or jici'son lialde to pay the money secured liy the mort^fap' or eliarf^e, to the next section of this Act. 24. (II A notice similar to the notice mentioned in thi' next Notice to pn lin^ section or containing the lik<< information shall also lie murtf^agor. served upon the mortj,'ii(?or or upon tl jiersonwho is liable (o juiy the moneys secured hy the ret,'istered iM>l riiment ; and upon such servic»< the person served shall ]my to the* sherilT all moneys payalile or which may hecome payalile to tiie execution delitor. (2) Service of such notice may he made perHonally, or hy leavin>r How served, tiu' same at the dw(dliti>^-hiMise of the person to he served with a grown up peisun dwellinj; there, or hy registei'ed letter to the proper address of tl>e perwon to bo Hcrved. i'.i) .\ny imymeiit made after service of the notice or after actual Payments knowled;.'!' of the seizure shall be void as against the sherill" and made after execution creditor. notice void. 25. In addition to the remedies herein provided, the sheriff may Sheriff may brintc an action on such niortgafje or other instrument for the sale or briiif? action foreclosure of the lands covered by the mortj^a^c or other instrument, for sale or and shall be entitled to a bond of indemnity as in the cases prfivided foredoHure. for in section L'l . 26. Upon a wiit of execution, notice whereof is refj:istered under dortidcate section Uli, exiniiiitj; or beiiif^ satisfied, set aside or witlidi'awii, a cer- vacatiiif^ tificate of sucli fact by th-' sheriff or the execution creditor, or the seizure, order to set aside, as tliecase maybe, may lie re^jistered and thereupon such sei/.iire shall be vacated and deemed at an end, 27. The oi'der of court or the certilicati^ of the sherifT shall not reiiuire vcrificiition. The certilicate of the execution creditor shall lie v(M'ilied by the oath of a subscribing,' witness as in the case of other instruments alTectinj' lands. 28. For the registration of any notice under section 2.'t, or of a certi- ficate under section 'Jti, the registrar or Master shall be entitled to a fee of .')(/ ceiiis; and for every notice of seizure under section 'Jit of this Act, the sheriff" shall be entitled to a fee of $1. Fees. TlieHc provisions wore fifst eiiactt'fl in l8f>.'i(/>). Fonncfly the interest of a n»ortdiio(H' in the niort- Formerly gained premises could not be sold under an execution '"^'^r**^^.'! "' auainst the niortmio-ee, e\'en after the niortijat^e had could not b« {h) .')(! Vict. (Ont.) 0. 5. sold under execution. 848 J'ERSON'S CLAIMING UNDER MORTGAGEE. ■ i(''"l Ji Wm' ■k^V, vfml f,VV,i Ik , ... . ^^Hfli ,«•••■ ^^H i;:i;::: ^^B «:;i: j^^^^l I*' .' ^^^^H I» l,». ^H ii::'i';:i «» •> b4 •t:^i:: ;- — ■-> V... -. -J '• *■■ ••• ■" ", .J-M v;::> ':.s;i:::;:. !:-x::::: N«v;i Scotia: if('«'ver\vill not tie appointed wlK'i't,' the remedy by exeeution is adefjuate. New Bruns\vic']<: money secured by mortgage may he attached and sheriff may discharge the mortgage ; and act on the power of sale. becoiiio forfeited by non-payment of the mortgage nionc^y in- In Nova Scotia tlie interest of a mortgagee under a mortgage is bound by a recorded judgment and may Ije sold thereunder. Thus where the plaintiff company recovered several judgments upon which executions were issued, and the company made application to a judge in chambers for the appointment of a receiver to receive the rents, interest and profits to which the judgment debtor might become entitled by virtue of a mortgage which lie lield upon certain lands, tlie mortgage not being yet due, it was held that the court sliould not appoint a receiver by way of eijuitable execution, merely because it would be a more convenient way of obtaining satis- faction of the judgment than the ordinary modes of execution ; that the legal title to the land being in the defendant the judgments, when recorded, would clearly bind such interest and that there was nothing to prevent the sale of such interest under execution in accordance witli tlie provisions of R.S.N. 8., 5th ser., cliapter 124, in the same way as any other interest of a judgment debtor in real estate {iJ). In New Brunswick the estate of a mortgagee in fee, who lias not taken possession of the land, is not seizable in execution on a judgment against him («)• But money secured by mortgage on real estate, or any interest therein, may be attached and dealt witli on attachment in the same mode as real estate, or any interest therein. And where the money due on any security on real estate is collected by a sheriff he may give a discharge under his haiul and seal, duly acknowledged, which, when registered, shall operate as a discharge of such security (/). The ((•) Doe iL CamplwU v. Thompson (1843) H. T. G Vict. K. & J. Dig. 14:i:{; I'nche v. liikif (IHtiG) li E. & A. 215, 231; Ludor v. Cirkihton (ISGO) 9 U.C.C.P. 295. (f/) .V..V. Mining Co. v. Greener (1898) 31 N.S.R. 189. (e) Doe W* •t*M •I* -1 mn , , ... 1M> I. «K.A ";,r:r.i»K. t- Nature of mortgagor's interest in mortgaged lands. Equity of redemption is an estate. RiGHT.s OF MoirmAGoR Generally. At common law when a mortgage of lands was iiuifle the legal estate became vested in the mortgagee and all that remained in the mortgagor was a mere right to re-enter on repayment of the money or performance of the condition. The mortgagor retained no estate in the lands, but tlie whole estate became vested in the mort- gagee. If the mortgagor made default in payment his right of re-entry was forfeited and the mortgagee became the absolute owner. Courts of equity, however, regarded the forfeiture of the right to re-enter on breach of the condition as in the nature of a penalty againso equity should relieve which, and consetjuently restored to the mortgagor after default his right to re-enter on payment of the amount due. This was termed the right or equity of redemption. But for some time after the right to redeem was established even courts of equity treated the mortgagor's interest in the lands as a mere right and not as an estate. The practice, however, grew of regarding and dealing with tlie mortgagor's interest as an estate that could Ix' devised, granted or entailed, until at length it was decided in the case of Cashorne v. Scarfe (a) that a mortgagor lias in equity not merely a right of entry on performance of the condition, but an alienable and devisable estate in the mortgaged lands. In that case it was argued tliat the mortgagor's interest was not an actual estate but only a (a) (1737) 1 Atk. (J03. RIGHTS OF MORTGArOU GENERALLY. 851 power of getting an estate, a mere right to bring an action at law or a suit in a equity to have tlie estate re-conveyed on payment of the amount clue. Lord Chan- cellor Hardwicke in delivering judgment said: — "An equity of redemptiou has always been considered as an estate in the land; for it maybe devised, granted or entailed with remainders, and such entail and remainders may be barred by a fine and recovery, and therefore cannot be considered as a mere right only, but such an estate whereof there may be a seisin; the person therefore entitled to the equity of redemption is considered as the owner of the land." It is now the established doctrine of equity that the mortgagor until foreclosure is the real owner of the property and possessed of it in right of his ancient and original estate (6). Formerly the interest of the mortgagor, before default, was termed a right of re-entry on performance of the condition. If the condition was performed the right was enforceable in courts of law. After default it was called an equity of redemption and was enforceable only in courts of equity. Now however it is customary when referring to the estate of an owner of mortgaged lands to term it an equity of redemption whether before or after default. An equity of redemption being an estate in land will devolve on the death of the owner in the same way as the estate in fee simple would have devolved. An equity of redemption is subject to tenancy by the curtesy (c) ; but being an equitable estate was not subject to dower until made so by statute ((/). A mortgagor being in ecjuity the owner of the mortgaged property may without the consent or concur- Right of re-entry before default. Devolution of equity of redemption. Tenancy by the curtesy. Dower. Equity of redemption maybe sold or mortgaged (b) Heath v.Pugh (1881) 6 Q.B.D. 345; Tani v. Turnef (1888) 39 Ch. D. 456; 18 R.C. 373. (c) Cusborne v. Scarfe (1737) 1 Atk. 603; see Moore v. Jackson (1892) 19 Ont. App. 383. (d) R.S.O. (1897) c. 164, s. 2. In Manitoba and the North-West Territories tenancy by the curtesy no longer exists: see R.8. Man. (1891) c. 45, 8. 20; 57-58 Vict. (D.) (1894) c. 28, s. 7. 352 RIGHTS AND LIAHILITIES OF THE MORTUAGOR. Possession. i« «... 1. i"" ^ » 1. 'A ' "rah. ...... ;■">■•■"" ' * ., c::::n Mortgagor not account- able for I rents. Growing crops. Mortgagor may bring or defend actions. rence of tlie mortgagee sell or mortgage the equity of redemption or any rights incident thereto (e). A mortgagor is not entitled to possession of the mortgaged lands unless that right is reserved to him (/) ; but it is customary to insert a provision that the mort- gagor shall be entitled to remain in possession until default. And where notwithstanding the omission of the re- demise clause it sufficiently appeared from the provisions of the mortgage itself and the course of dealing that it was the intention of the parties that the mortgagor should retain possession until default, the mortgagees were enjoined from disturbing the mortgagor's possession until such default (g). But a mortgagor is not accountable to the mortgagee for rents and profits received while in possession, though the security proves deficient (h) ; nor is he in general liable for waste (i)- A mortgagor is entitled even after default and before entry of the mortgagee to remove growing crops (_;'). A mortgagor in possession may bring or defend actions in respect of the mortgaged property against persons other than the mortgagee (/c). As a general rule the mortgagee having the legal estate must be made a party to such actions (I), especially if his interests are in any way likely to be affected by the result of the action (vi); (c) Steers v. Rogers [1893] A.C. 232. (/) Moss V. Gallimore (1779) Douglas 279. {g) Superior Savings and Loan Society v. Lucas (1879) 44 U.C.R. 106. (/t) Ex parte Wilson (1813) 2 V. & B. 252; Wafer v. Taylor (1852) 9 U.C.R. 609. («•) Ifafer v. Taylor (1852) 9 U.C.R. 609. (j) In re Phillips (1880) 16 Ch. D. 104. (fc) Scllick V. Smith (1826) 11 Moore 459. (/) Wood V. Williams (1819) 4 Madd. 186; 20 R.R. 291. (»i) Fan Gclder, Apsimon 4' Co. v. Soiverby Bridge etc. Co. (1890) 44 Ch. D. 374. RIGHTS OF MORTGAGOR GENERALLY. 353 of name. but not if the mortgagee cannot possibly be affected by the result (n). Sub-section 4 of section 58 of the Ontario Judicature Mortgagor A . / \ -1 p 11 niny now sue Act (o) provides as rollows : — in his own 58. (4) A mortgagor entitled for the time being to the possession or receipt of the rents and profits of any land as to which no notice of his intention to take possession or to enter into receipt of the rents and profits thereof shall have been given by the mortgagee, may sue for such possession, or sue or distrain for the recovery of such rents or profits, or to prevent or recover damages in respect of any trespass or other wrong relative thereto, in his own name only, unless the cause of action arises upon a lease or other contract made by him jointly with any other person, and in that ease he may su;, or distrain jointly with such other person (p). Formerly a mortgagor could not maintain an action for an injury done to the land if the mortgage was in default ((/). But the mortgagor of a property with a clause for the retaining possession until default (such default not having taken place) was entitled, so long as the mortgage continued in force without default, to maintain an action for an injury done to the reversion (r). Independently of the Ontario Jmlieatare Act a mort- gagor is entitled, if necessary, to take proceedings in the name of the mortgagee to recover or protect the mortgaged property upon giving proper indemnity as to costs (s). Under section 58 above quoted it was held that a mortgagor, entitled to the possession of land as to M'hich the mortgagee had given no notice of his intention to take possession, could sue to prevent or recover damage in respect of any trespass or other wrong relative thereto, Formerly could not sue if the mortgage was in default. Mortgjigor may sue on giving iiKleuinity. Trespass. («) Hughes v. Cook (18G5) 34 Beav. 407; Pearse v. Hewitt (1835) 7 Sim. 471; Fairclongh v. Marsluill (1878) 4 Ex. D. 37; In re Nickle .)■• Walkcrton (1886) 11 Ont. 433. (o) R.S.O. (1897) e. 51. (/>) This provision is substantially the same as that of the English Judicature Act, 1873, 36 & 37 Vict. (Imp.) c. 66, s. '25(5). In Nova Scotia R.S.N. S. (1884) c. 104, s. 13(4). In Manitoba 58 & 59 Vict. (Man.) (1895) c. 6, s. 39(4). In the North-West Territories Con- solidated Ordinances (1898) c. 21, s. 10 (4). {q) Ford v. Jones (1862) 12 U.C.C.P. 358. (>•) Ifosrers v.Dif^son (1861) 10 U.C.C. P. 481. is) Phen4 v. Oillan (1845) 5 Ha. 1. . 354 RIGHTS AND LIABILITIES OF THE MORTGAGOR. •t:;C .:;::» :..::i:;;:; May refitrain mortfjagee from com- mitting waste. Kight to inspect title deeds. Mortgagor may be discharged from liability Reservation of rights. in lu.s own name only, and that the objection that the mortgagees should be parties ought not to prevail (t). Under the Nova Scotia J adicature Act the owner of the equity of redemption can maintain an action for trespass to mortgaged property and injury to the freehold, even although after the trespass and before action brought he has parted with his equity {ii). A mortgagor of a term may restrain a mortgagee in possession from committing waste even although the mort- gagee has obtained the consent of the reversioner ('(•). The mortgagee is entitled to the possession of all title deeds of the mortgaged lands, and formerly the mortgagor was not entitled even to inspect them. But now under the Act respecting Mortgages of Real Estate {iv) the mort- gagor, so long as his right to redeem subsists, may inspect the title deeds. The provision is as follows : — 3. (1) A mortgagor, as long as his right to redeem subsists, shall, by V-i'tue of this Act, be entitled from time to time, at reasonable times, on his request, and at his own cost, and on payment of the mortgagee's costs and expenses in this behalf, to inspect and make copies or abstracts of or extracts from the documents of title relating to the mortgaged property in the custody or power of the mortgagee. Where the mortgagor has conveyed away his equity of redemption he may be discharged from liability under his covenant for payment if the mortgagee deals with the purchaser of the equity of redemption to the prejudice of the mortgagor, as, for example, if the mortgagee extends the time for payment (cc). But if in such an agreement to extend the time for payment the rights of the mortgagor are (0 Plntt V. Gmml Trunk Eaihmy Co. (1886) 12 Ont. 119. (m) lirook/ichl v. Brown {1S93) 22 S.C.R. 398; see also McMuUcn v. Free (1887)"l3 Ont. 57. (v) CMsholm V. Sheldon (1850) 1 Gr. 318. (if) R.S.O. (1897) e. 121, s. 3, sub-s. 1. {x) Mathers v. HeUiwen (1863) 10 Gr. 172; AMou. v. Hicks (1891) 21 Ont. 95; Trust and Loan Co. v. McKemie (1896) 23 Ont. App. 107; McCuaig v. Barber (1898) 29 S.C.R. 120. RIGHTS OF MORTGAGOR GENERALLY. 355 expressly reserved lie will not be discharged {y). And so where the dealings do not amount to a new contract and there is no binding agreement to extend the time for pay- ment the right of action will not be impaired {z). In McCiuiiWi »«• »<»-Ml(. ,:.~r:i»* :ni' When right to redeem arises. Mortgage not redeemable before day named. Statutory exception after five years. Three months' interest. The right of a mortgagor to redeem arises when tlie time arrives for payment of the mortgage moneys or per- formance of the condition. The period must be ascertained or ascei'tainable by reference to a fixed day or to the happening of a certain event. If the time be uncertain or of unreasonable duration redemption may be decreed in a reasonable time {a). As a general rule a mortgage is not redeemable before the day thereby fixed for payment of the mortgage moneys, though the full amount of principal and interest up to that day be offered to the mortgagee (Jj). But redemption was allowed before the day named for payment where by the proviso \he mortgagor was entitled to redeem on the day named or on payment before or after it (c). An exception to this rule is made by section 7 of the Act respecting Interest (cl) by which in the case of a mort- gage made after the 1st day of July, 1880, for a term exceeding five years the mortgagor is entitled at any time after the expiration of five years from the date of the mortgage to pay the amount then due upon the condition of paying three months' interest in addition. The Act respecting Interest provides as follows : — 7. Wlienever any principal money or interest secured by mortgage of real estate is not, under the terms of the mortgage, payable till a time more than five years after the date of the mortgage, then, if at (a) Newcomb v. Bonham (1681) 1 Vern. 7. (b) Brown v. Cole (1845) 14 Sim. 427. (c) Harding v. Tingcy (1865) 10 Jur. N.S. 872. (d) R.S.C. (1886) c. 127. the per- lined the in or in a REDEMPTION. 357 any time after the expiration of such five years, any person liab» to pay or entitled to redeem the mortgn^-e tenders or pays, to the person entitled to receive the money, the amount due for principal money and interest to the time of payment, as calculated under the four sections next preceding, together with three months' further interest in lieu of notice, no further interest shall be chargeable, payable or recoverable at any time thereafter on the principal money or interest due under the mortgage ((/) . Section 8 is as follows : — 8. The provisions of the five sections next preceding shall only apply to moneys secured by mortgage on real estate executed after the first day of July in the year one thousand eight hundred and eighty (e). Under section 7, where a mortgage is given to secure the balance of purchase money, the principal being payable in instalments extending beyond five years, the mortgagor is, at any time after such last named period, entitled to a discharge upon payment of the principal arid interest, together with three months' additional interest (/). By a subsequent statute this provision is amended and declared not to apply to any mortgage on real estate given by a joint stock company or other corporation (g). A Welsh mortgage from the nature of the contract Welsh may be redeemed at any time. mortgage. If a mortgage is made payable on demand, or if no Mortgage time is fixed for payment, as in the case of an equitable S'^^'^^^j °° mortgage by deposit of title deeds or other informal mortgage, the mortgagor may redeem at any time, as the mortgagee has the correlative right at any time to call in the loan (h). {(I) R.S.C. (1886) c. 127, s. 7. (e) See also R.S.O. (1897) c. 205, s. 25 as to loan corporations. (/) In re Parker, Parker v. Parker (1894) 24 Ont. 373 ; 30 C.L.J. 140. (flf) 53 Vict. (D.) (1890) c. 34. s. 1 is as follows: 1. Provided aowever, that nothing contained in this section shall apply to any mortgage upon real estate given by a joint stock company or other corporation, nor to any debenture issued by any such company or corporation, for the payment of which security has been given by way of mortgage on real estate. (h) Fitzgerald's Trustee v. Mellersh [1892] 1 Ch. 385. lio8 UKJHTS ANI> LIAIULITIES OF THE MiJUTOAOOR. Mortgngi'O taking posHesHion before day named. i:v::: h l,„. I . -. ...1 :. ■.:;> ■•:,5:ir;:::: Sixth months' notice. Ground of rule requir- ing six months' notice. Six months' interest in lieu of notice. Option to pay before maturity may be exercised without notice after default. If a mortgagee enter into poHse.ssion before the day named for payment the mortgagor may thereupon redeem (i). Although the mortgagee may })ring an action against the mortgagor to recover the mortgage moneys at any time after they become due witliout notice this right is not reciprocal. As a general rule a mortgagor nmst, after default in payment by the day fixed, give to the mortgagee six months' notice of his intention to pay otf the mortgage, or pay six months' interest in lieu of notice (j). This rule is founded on the e(|uitable maxim that " he who seeks ecjuity must do equity," and a mortgagor who comes into ). Where a railway company expropriates mortgaged land under its powers for so doing, the mortgagee may insist on six months' notice in lieu of interest (q). If six months' notice is given and the money is not paid on the very day of the expiration of the notice the mortgagee may require a further six months' notice or interest in lieu of notice (r). In a case in England an order for foreclosure was made in the usual form, and the usual certificate also was made appointing the last day of six calendar months from the date of the certificate as the time for redemption, on payment of the principal money with interest up to that day and costs ; and it was held that the mortgagor could No iiotico rcMiuired if niortf^unt'o tiikcH pro- ceedings. Mortgagee must iiccopt payment if made in puiHuance of demand. Railway ex- propriating mortgaged lands. Redemption before day appointed by the court. (m) Lett V. Hutchins (1871) L.R. 13 Eq. 176; BoviU v. Endle [1896] 1 Ch. (548; Re Houston, Houston v. Houston (1882) 2 Ont. 84. (o) Cruso V. Bond (1882) 1 Ont. 384, overruling Drummond v. Guickard, cited in Green v. Adams (1867) 2 Chy. Ch. 134. (p) R.S.O. (1897) c. 121, 8. 32. (7) Spencer-Bell v. London 4' Southwestern Railway Co. (1885) 33 W.R. 771. (r) In re Moss, Levy v. Sewill (1885) 31 Ch. D. 90; Garforth v. Bradley (1755) 2 Ves. Sen. 675, at p. 678. 360 UHJHTS AND MAHII.ITIES OF THE M()HT(;A(J()U. ii:/i';a :j> 't:: ;:i' Ontario morl plot's luado after July Iwt, 188K: notice not requiretl. not cliiiin to rcflco':; on an oarlicr day, on payment ol' the principal money witli interest up to the time of payment only and the costH (n). Hut an t,'(|uitahie mort<;a^ee by doposit of title deeds in not entitled to nix months' notice or to intere.st inlieuof notice(^) In Ontario the morti;reement shall be bindiiif? and liave the same effect as if this section had not been i)asaed; provided moreover, that this section shall not be held as ipplying to any default in the payment of j)rin- cipal money that may have become due or payable only by reason of some default made in the payment of interest money secured or payable by or under any such mortgage, or V)y reason of some d- 'niilt made in the payment of any instalment of principal wo ley, oi .ku.\ portion of any instalment of principal money seen 1 i>ayablo by or under any such mortgage, but sliall be'.held an , lo any sucf- instalment in respect of which default has been .is aforesaid. Manitoba. In Manitoba the statutory provisions ai. hh follows : — 4. The rule of law under which a mortgagee is entitled >o demand and receive notice or a bonus of six months' interest, in case the principal of his mortgage be not paid on the day it falls due, is liereby repealed and declared not to be in force in the Province of Manitolia: Provided that this section shall not be construed to affect any contract (r). ii. Jurisdiction. Redemption where mort- gaged lands without the jurisdiction. There does not appear to be any reported case in which the court has decreed redemption of mortgaged lands in is) Hill V. Rowlands [1897] 2 Ch. .'{61. (0 Fitzgerald's Trustee v. Mellersh [1892J 1 Ch. 385. (m) R.S.O. 1897, c. 121. {v) R.S. Man. (189i; c. 99, s. 4. IlKltKMPTlON. mi a forcii^n jurisdiction, l)ut tlai court has intimated that, il' neccHHary, it would dccrco rodciuptioti in hucIi a caH('(*c). JJut tlu! court will not <,n-ani i-ciicr hy a di-crco in perHoiKiht as to lands without tiu; jui'i.sdiction ol' the court unliiHH tht'i'c is sonic conti'actual ohli^fation, cxprcsN or implied, or .some trust or ecpiity between the parties. Thus the court relused a deci-ee for redemj)(ion ol" a inorti;a) Ma>7()i v.3/i/fs (1883) 5 Ont. 404. (q) Grcenv. ff'ynn (1869) 4 Cb. 204; Forbes v., Tackson (1882) lOCli. D. 615. (r) Mildred v. Austin (1869) L.R. 8 Eq. 220; Earl of Cork v. Jlussell (1871) L.R. 13 Eq. 210. (s) lieeror v. Luck (1807) L.R. 4 Eq. 537; Loveday v. Chapman (1S75) 32 L.T. 689. )d to for •etion REDEMPTION. prior mortgage are overdue (f). A Hubse({uent incum- brancer may in the saine action redeem prior mortgages and foreclose subsequent incumbrancers and the mort- gagor (u). ■ . Wliere an equity of redemption of no value was assigned merely for the purpose of enabling the assignee to attack a prior mortgagee on the ground of fraud for the benefit of the assignor, and the assignee brought action to impeach the prior mortgage, and in the alternative for redemption, it was held that the assignment savoured of champerty, and redemption was refused to the assignee {v). The general rule is that a subsecpient incumbrancer may make a prior mortgagee a party to his action only for the purpose of redeeming him ; but where the prior mort- gage is created by a deed absolute in form, the subsequent incumbrancer may bring the prior mortgagee before the court for the purpose of showing that his interest is redeemable, without offering to redeem him {w). And a subsequent incumbrancer in an action brouglit by him to redeem may impeach transactions by a prior mortgagee in reference to the mortgaged property {x). A subse((uent incumbrancer bringing action against a prior mortgagee is not entitled to a sale {y), unless the prior mortgagee consents or does not object {z). The general rule is that a subsecjuent incumbrancer bringing action against a prior mortgagee is entitled to 365 Redemption refused where assignment of mortgage champertous Relief afforded to subsequent incumbran- cer against prior mort- gagee. Costs. (/) Parsons v. Ikiuk of Montreal (1S()8) 15 Gr. 411; Long v. Long (1869) IG Gr. 239. The owner of the equity of redemption must be made a party to such an action: (7^ (h) Rogers v. Lewis (IStiO) 12 Gr. 2r)7; McLaren wFraser (1868) 15 Gr. 2:59. ((•) Muchall V. Banks (18(52) 10 Gr. 25; see Little v. Hawkins (1872) 19 Gr. 2G7; H'irfle v. Sctlerini/ton (1872) 19 Gr. 512; Jiell v. iralkcr (1873) 20 Gr. 558; Hilton v. fVoods (1867) L.R. 4 Eq. 432. («,') Moore v.Hobson (1868) 14 Gr. 703; see Rogers v. Lewis (1866) 12 Gr. 257. (x) McLaren v. Eraser (1868) 15 Gr. 239. ((/) McDougall v. Campbell (1881) 6 S.C.R. 502. (c) Grange v. Barber (1868) 2 Chy. Ch. 189. 366 RIGHTS AND LIABILITIES OF THE MORTGAGOR. redemption only and not to sale. A subsequent incum- brancer may, however, have judgment for .sale if the prior mortgagee consents thereto or does not object ; but in that case the proceeds of the sale will be applied in satisfaction of the claims of the incumbrancers according to their priorities, and the subsequent incumbrancer will not be entitled to any priority in respect of liis costs even although the fund prove insufficient (a). I-' CO "■C jc:;::: Tender stops interest and costs. But the money must he kept ready. Tender must be made by person entitled to redeem. To the person entitled to receive the money. iv. Terms of Redemption — Tender. A person who has a right to redeem, whether at or after maturity, will not be entitled to a reconveyance except on payment or tender of the amount due under the mortgage contract for principal and interest. If a person entitled to redeem makes a proper tender of the amount due, the mortgagee will not be entitled to recover interest accruing or costs incurred thereafter (b). A proper tender stops the running of interest, but the person liable to pay must keep the money ready to pay over on demand to the mortgagee (c). A tender to b6 good must be made by a person entitled to redeem ; tender by a stranger is not good, for as against a stranger the mortgagee's estate is absolute. It may be made by the solicitor or agent of the person entitled to redeem (d). A tender may be made to the mortgagee, or to any other person entitled to receive the money and reconvey the estate, as for example, a trustee of the mortgagee, his assignee, or his executors or administrators (e). (a) Grange v. Barber (18G8} 2 Chy. Ch. 189. (b) Kmpp -:. Bower (1871) i; Or. fi!)") ; Bishop v. Church (1751) 2 Ves. Sen. 370; Lord MiiUeton v.Elio' C1847) 15 Sim. 531. (c) Kinnaird v. TroUope (1889) 42 Ch. 1). 010; Bank of New South Wales V. O'Connor (1889) 14 App. Cas. 273; Knapp v. Bower (1871) 17 Gr. (595. id) Ward V. Carttar (1865) L.R. 1 Eq. 29. (e) Cliff v.Wadsworth (1843) 2 Y. & C.C.C. 598. REDEMPTION. 367 A tender to a solicitor or other agent of the mortgagee will not be good unless he has authority to receive the mortgage mone3'^(/). If a place is appointed for payment the tender must be made at that place. If the mortgagee has demanded pay- ment or if the mortgagor is willing to pay six months' interest in lieu of notice, a tender may be made at any time. But if the money is payable at a time certain by the mortgage contract, or at the expiration of a six months' notice after default, the tender must be made on the very day (fir)- In order to constitute a good tender there must be actual production and offer of the money, unless waived by the mortgagee. But actual production may be dispensed with if the creditor refuses to accept the money when the debtor offers to produce it, but before he has actually produced it. But the debtor must have the money ready to pay at the time when he offers to do so (h). A tender made by letter without actually enclosing the money is not good('i). The exact amount must be tendered; a tender of a larger sum recjuiring change is not a good tender (j), and the whole amount due must be tendered ; the mortgagor cannot tender a less sum and claim a set- off" for the remainder (k). A tender to be valid must be luiconditional (l). But the demanding of a receipt will not invalidate a tender otherwise good (m). (/) WHhington v. Tate (1809) 4 Ch. 288. {(j) Bii'jgs V. Calverley (1800) 8 T.R. G'29. [h) Lake v. Biggar (1860) 11 U.C.C.P. 170; Thomson v. Hamilton (1835) 5 U.C.O.S. Ill; Milbuni v. MiUmni (1847) 4 U.C.R. 179; Pol- glass V. Olircr (1831) 2 Cr. & J. 15; Harding v. Iktvics (1825) 2 C. &P. 77; Douglas v. Patrick (10)0) 3 T.K. (183; Kraus v. Arnold (l»22) 7 Moo. 59; lieynolds v. Allan (1852) 10 U.C.R. 350; Long v. Long (1870) 17 Gr. 251. (t) Powncy V. Blomhcrg (1844) 14 Sim. 179. (j) Cotlrcll V. Finney (1874) 9 Ch. 541. (k) Scarles v. .Sadgrare (1855) 5 E. & B. 039. (0 Jennings v. Major (1837) 8 C. & P. 01. (m) Lockridge v.Laccy (1870) 30 U.C.R. 494. To agent of the nioit- gage»'. Place and time of mal•) Harmer v. Priestle;/ (1853) IG Beav. 569. (s) Jenkins v. Jones (1860) 2 Gifif. 99. REDEMPTION. 369 in American currency is not valid {t). But in the case of a mortgage payable in lawful money of the United States of America, the mortgagee is entitled only to the amount in that currency or its equivalent in Canadian currency (tt). Dominion notes issued by the authority of the Gover- I-^ef^iil tender nor-in-Council are legal tender (v). Silver coins are legal tender to the amount of ten dollars, and copper or bronze coins to the amount of twenty-five cents in any one pay- ment (iv). The gold eagle of the United States of America is legal tender for ten dollars in Canada, and multiples and halves thereof are legal tender for proportionate sums (x). No silver, copper or bronze coins are legal tender in Canada except those lawfully coined for circulation in Canada or in some Province thereof (y). A tender of pay- ment in any gold, silver or copper coin which has been defaced by stamping thereon any name or word, whether lightened thereby or not, is not legal (s). V. Terms of Redemption-Payment. Payment to be valid must be made to the mortgagee TomortRa- or other person entitled to the money or his duly author- [j'^^nT '^ ized agent. Payment to one of two or more mortgagees, or to one of two or more executors of a mortgagee, is good (a). If payment be made to a person not duly authorized Agent. by the mortgagee it will not be a good payment. Thus, the employment of a person to serve a notice demanding (t) Xiufjara Falls InternaUonal Bridge Co. v. Great Western Railway Co. (1863) 22 U.C.K. 592. (u) Crawford V. Beard {186i)UV.C.C.F. 87; MorreU v. (fard {1863) 10 Gr. 231. (r) R.S.C.(1886)c. 31, s. 4. («j) E.S.C. (1886) c. 30, s. 5. {x) R.S.C. (1886) C.30, s. 7. (y) R.S.C. (1886) c. 30, s. 6. (c) R.S.C. (1886) c. 30, s. 9. («) Wallace v. Eclsall (1840) 7 M. & W. 264; Steeds v. Steeds (1889) 22 Q.B.D. 537; Ewart v.Dryden (1867) 13 Gr. 50. 370 RIGHTS AND LIABILITIES OF THE MORTGAGOR. ..! : •!- CO i h [i: I..'.,. J ::::) :r;[i:::;; Agent authorized to receive interest, not principal. On;- of proving agency on the mortga- gor. Custody of the mortgage payment of the mortgage money does not give liim an implied authority to receive it (6). And where a person lias authority to receive intere.st on a mortgage that alone does not imply authority to receive the principal (c). An agent who is authorized to collect i*ent, and to contract for the sale of property and receive payment of the purchase money, is not thereby authorized to receive payments on a mortgage given for the unpaid purchase money (d). The onus of showing that a solicitor who is in pos- session of a mortgage and collects the interest has authority also to collect the principal is upon the mort- gagor, and unless this onus is clearly discharged the mort- gagor and not the mortgagee must bear the loss arising from the solicitor's misappropriation of the funds ( / ). The custody of a mortgage gives no riglit to the custodian, whether he be the solicitor of the mortgagee or not, to receive any part of the principal or interest secured. A mortgage not only securer money, but atiects the land ; and for its effectual discharge not only payment but re- conveyance is essential, and for this reason the law does not infer a right to receive the money from the mere possession of this kind of security (g). But payment made to the solicitor employed by the mortgagee to bring an action to recover the mortgage money is valid and will discharge the mortgagor {h). (&) Toms V. misoH (1862) 4 B. & S. 442. (c) Palmer v. mnstanlcy (1874) 23 U.C.C.P. 58G. {(I) Greenwood v. Commercial Batik of Canada (1867) 14 Gr. 40. (/) In re Traci/, Scully v. Tracy (1894) 21 Ont. App. 454; lillkiu- sou V. Candlish (ISM) 5 E.x. 91; Kent v. Thomas (ISaG) 1 H. & N. 47:S: Scully V. Robertson (1894) 30 C.L.J. 472; McMullcn v. Policy (1886) iL' Ont. 702. (g) Gillcn V. The Roman Catholic Episcopal Corporation of the Diocese of Kingston (1884) 7 Ont. IJ.G. (/i) Bourton v. Williams {\9ilQ) ^ Ch. 655; but see Palmer v. /J'n/- stanley (1874) 23 U.C.C.P. 586. 11111 an person it alone ). An oiilract of tlie receive urcliase arisinnf REDEMPTION. 371 Formerly an agreement to accept payment of a Accord and smaller sum, on or after the day named for payment, in discharge of a larger sum was nudicvi pactuvi and not enforceable (i). But where there was a dispute as to the amount due ; or where the money was paid before it was due; or where a chattel, cheque or promissory note, though of less value, was given and accepted in satisfaction ; or where that which was given in satisfaction was more beneficial to the mortgagee, this was considered sufficient to support a defence of accoi'd and satisfaction ( j). But wliere a cheque was given in full of all demands but accepted only on account, it was held that the keeping of the cheque was not conclusive {k). In Ontario, however, the rule that part performance R"'f '" i • (• J- ■ 1 ■ f t. • ^o p Ontario. IS not a satisiaction is no longer in torce. Section 58 oi the Oniario Jiulicatwre Act {I) provides that — 68. (8) Part performance of an oblif^ation, either before or after a breach tliereof, when expressly accepted by the creditor in satisfac- tion, or rendered in pursuance of an agreement for that purpose, though without any new consideration, shall be held to extinguish the obligation. Where the day on which the money is due under the terms of the agreement falls on Sunday the payment must be made on the Saturday previous (m). When a mortgagor pays or tenders the moneys due under Tacking, the mortgage on the day when they become due according to its terms, he may stand on his strict legal rights and insist upon a reconveyance of the mortgaged property. But where he does not pay until after default and is compelled to go into a court of etjuity for relief ,the court may impose ((■) Beer v.Foakes (1883) 11 Q.B.D. 221; 9 App, Cas. 605. (J) Curlewis v. Clark (1849) 3 P]x. 37;"); Goddard v. O'Brien (1882) 9 • ' Q.B.D. 37; Bidder v. Bridges (1887) 37 Ch. D. 40G. (k) Dai/ V. McLea (1889) 22 Q.B D. 610; Mason \. Johnston (1893) 20 Out. App. 412. (/) R.S. 0.(1897) c. 51. {m) Whitticr y. McLennan (1855) 13 V. C.E.63H. 372 RIGHTS AND LIAHILITIES OF THE MORTGAriOR, ..t::r f " <•"< I 1 ~ri>fc :::> ;: t;::: Consolida- tion. Writ of i^ummons. Judgment on pnvcipe. •Tiidgment nil ere infants concerned. terms as the price of redemption. Thus, if the mortgagee holds an execution against the mortgagor's lands, or holds a subsequent mortgage or charge against him, the mort- gagor may be rec(uired to satisfy such execution, mortgage or charge as a term of being allowed to redeem. So also where a mortgagor has given to the mortgagee two or more mortgages on separate properties, and both or all are in default, the mortgagee may insist on his right of consolidation and re(|uire the mortgagor to redeem both or all, if he seeks to redeem one. The rules as to tacking and consolidation are founded on the maxim that " he who seeks •'equity must do equity (ii)." vi. Action of Redemption. The plaintiff's claim in an action for redemption is to have an account taken of what, if anything, is due on the mortgage and to redeem the property comprised therein {h). Where the wi'it of summons in an action for redemp- tion is indorsed in the manner prescribed by Ontario Rule 141 the plaintiff may obtain judgment on proicipa in the following cases : — (a) Where the defendant fails to appear ; or (6) where by his statement of defence he admits the execution of the mortgage and other facts, if any, entitling the plaintiff to a judgment ; or (c) where the defendant disclaims any interest in the mortgaged premises; or (<:/) where no statement of defence is delivered ; or (e) where notice is filed and served disputing the amount of plaintiff's claim only; or (/) where in his appearance the defendant states that he disputes the amount of the plaintiff's claim only (bh). Where in a redemption action the defendants, or some of the defendants, are infants and no defence is set up, the plaintiff, upon filing affidavits of the due execution of the (n) For a fuller discussion of these principles see Chapters XX supra p. 307, and XXI supra p. 313. (b) Appendix to Ont. Kules, Form 9 (f ). {bb) Ont. Rule 596. REDEMPTION. 373 rtgagoe V holds e iiiort- ortgage •tgagee both or •iglit of joth or tacking he who »n is to on the rein (b). ■edemp- Ontario prcvclpe nt fails ence he r facts, ) where rtgaged ence is sputing ! in his :es the )r some up, the of the ers XX mortgage and of such otlier facts and circumstances as entitle liim to judgment, may move for judgnifnit in chambers upon notice to the guardian ad litem of the infants and the other defendants' solicitor, if any (c). In other caset* tlie motion for judgment will be to the court {(I) ; and if in a redemption action, in which infants are defendants, one of the adult defendaMt.'^ is a lunatic or pel son of unsound mind not so found by Uiquisition, the motion for judgment must be made to the coiu't (e). Where the judgment is for redemption or foreclosure, Proceedings or redemption or sale, such proceedings are in that case to ment in be thereupon had, and with the same effect as in an action redemption '■ . . action, for foreclosure or sale, and in such case the last incum- ])rancer shall be treated as the owner of the equity of redemption ( / ). The mortgagee, therefore, in an action brought to redeem liim may bring in subsequent incumbrancers and foreclose tliem. But if the mortgagee brings in subseciuent incumbrancers the action becomes one for foreclosure instead of for redemption, and the subsequent incum- brancers may claim a sale on the same terms on which they might claim it if parties to a foreclosure action ((j). The time allowed the plaintiti' in a redemption action Eiiliirf,'iii<,' for redemption is usually the same as is allowed a defendant reaemption in a foreclosure action — six montlis. The time may how- ever be enlarged upon a proper case being shown by the plaintiff seeking redemption. It will not be enlarged as an indulgence to the mortgagor where he is plaintiff in a redemption action (h). But where the plaintiff through a bmia Jide mistake fails to pay the mortgage money into court within the time fixed by the judgment, the time may (c) Ont. Rule 595. (rif) Ont. Rule 609. (e) Warnock v. Prieur (1887) 12 P.R. 264. (/) Ont. Rule 757. {g) Ont. Rule 382. {h) Faulkner v. Bolton (1835) 7 Sim. 319. 874 HKJIITS ANM) LIAIULITIES OF THE M()UT(iAO()H. ,4- • CO •■■■ ^-.I^H, 1.-. J :. :::> LneheH miiy (liwtMititle pliiintiJT to reck'iHptioii. DiHDliHHIlI of redemption action on payment of arrears and COHtH. Effect of dismissal of action for redemption. be cnliif^t'd (i). If the application to exteinl tlu; time is not made until after a Hnal order di.smiH.sing the action, that order mast be tirwt vacated ( j). Where the decree in a redemption suit directed that the plaintirt' mifjht have an account if he desired it, but the plaintiff took no stepn to issue the decree for over twelve years, it was held that the plaintitt* had disentitled himself by his laches to take further proceedin) Marshall v. Shrewsbury (1875) 10 Ch. 250. REDEMI'TIOX. :j75 brinjLjH action to redeem the first iiiortj^ai^tn! and to I'orccloso the niort<^a<;or, ntid the .second niortj;a ■tz: Mortgagor may be bai'i'od as to l)iii't of the laiuls. What posses- sion will ))ar inortgagoi'. Possession of solicitor is possession of his client. the mortgagee enter.s into po.ssession and tlie statutory period elapses in the lifetime of the tenant for life (k). Where the mortgagee has been in possession of ]iMit ';t the mortgaged property for the statutory period, th. right of the mortgagor as to that part will be barred although he has been in possession of the remainder (i). The possession required by the statute to bar the mort- gagor's right must be the possession of tlie same person, or of several persons claiming one from or under the other, by conveyance, will or descent (>h). Where mortgagees in fee in possession executed a deed purporting to " convey, assign, release, and quit claim " to the grantees, " their heirs and assigns forever, all and singular " the mortgaged land, luihendurii " as and for all the estate and interest " of the grantors " in and to the same," this was held sufficient to pass to the grantees, the benefit of tlie possession held by the mortgagees, without any written acknowledgment of the title of the mortgagor, and the mortgagees' possession, coupled with the grantees' own subse(juent possession for the necessary period, con- ferred on the latter an absolute title to the land by v'rtue of the Real Property Limitation Act {n). Where the solicitor of a mortgagor paid off the mort- gage for his own benefit but did not take an assignment of the mortgage, it was held that his possession was the possession of his client and that time would not run against the client ( p). The statute applies not only to the mortgagor but also to all persons claiming through him, whether by convey- ance, descent or devise. {k) Harrison v. HoUins (1812) 1 S. & St. 471. (/) KiHsmau v. /Jo«se (1881) 17 Ch. D. 104. {m) Doc d. Carter v. nariiard {IHM)) l.T Q.B. 945 at p. 152; Jiright V. McMiirraii (1882) 1 Ont. 172; Dcdford v. lioKlhm (1878) 25 Gr. 5G1. (w) Jiright V. McMurray (1882) 1 Out. 172. (/)) Ward V, Carttar (18G5) L.li. 1 Eq. 29. LIMITATION OF ACTIONS FOR REDEMPTION. 379 If the mortgagee is i)i possession of the property iinder some title other than that of the mortgage, tlie period of such possession will be excluded in making up the statutory period {q). Where a mortgagee pays the taxes on unoccupied wild lands comprised in the mortgage for more than the statutory period, that is not sufficient to constitute possession under the statute (?•). In the case of vacant lands tlie constructive possession is in the mortgagee and the statute does not run against him so as to extinguish his title (.s). Wliere actual pos- session is once obtained by a mortgagee in assertion of his legal right of entry, it need not be maintained continuously for the statutory period (t). The acknowledgment must be in writing and signed by til*' mortgagee or a person claiming tlirougli him. Tliere is no provision that it may be signed by an agent of the mortgagee. Tlie acknowledgment recpiired by this section differs from tliat mentioned in sections 13 and 23 of the statute. The acknowledgment under section 19 of the Real Property Liiii ifatioii Act must be given to the mortgagor or some person claiming his estate, or to the agent of such mortgagor or person. Formerly an assignment of tiie mortgage of which tlie mortgagor might not have any knowdedg(^ was a sufficient acknowledgment of the ex'st- ence of the e(|uity of redemption. But under this section such an acknowledgment not being given to the mortgagor will not avail (a). Possession of inoi'tpigee under some other title. Payment of taxes not possession. Possession of vacant lands is in the mortga- gee. Acknow- ledgment. Must be given to mortgagor or his agent. {(j) Hyde v.Dallaway (1843) 2 Ha. 528. (r) McDonald v.McDoiull (1864) 2 I*:. & A. 393. (s) Delaney v. Canadian Pacific liailway Co. (1891) 21 Ont. 11. (0 Eay V. mison (1877) 2 Ont. App. 1:53. (») Lucas v.Dennison (1843) 13 Sim. 584. 380 RIGHTS AND LIABILITIES OF THE MOKTGAGOR. ,<•■■■• i:5:;;: L ■; 4 • *tjr If made to one mort- gagor it saves the rights of all. If given by one of two or more mortgagees. :.z If there is more than one mortgagor an acknowledg- ment made to one is sufficient to save the riglits of all. Section 20 provides as follows : — 20. In case there are more mortgagors than one, or more persons than one claiming through the mortgagor or mortgagors, such acknowledgment, if given to any of such mortgagors or persons, or his or their agent, shall be as efCeetnal as if the same had been given to all such mortgagors or persons (v). Where some of several tenants in common are barred by the Statute of Limitations, and others of them are not, the latter are entitled to redeem the whole mortsa^ed estate, and not merely an ali(]Uot part (tv). Where there are more mortgagees than one, an ack- nowledgment made by one is effectual only as to the mort- gagee giving it, and will not bind all the mortgagees. The mortgagor in such a case will be entitled to redeem the interest of the mortgagee giving the acknowledgment on payment of his proportion of the mortgage moneys. This is provided by section 21 of the Real Projjerty Limitation Act which is as follows : — 21. In case there are more mortgagees than one, or more persons than one claiming the estate or interest of the mortgagee or mortgagees, such acknowledgment, signed by one or more of such mortgagees or persons, shall be effectual only as against the party or parties signing as afore- said, and the person or pers-ons claiming any part of the mortgage money or land or rent by, from, or nnder him, or them, and any person or persons entitled to any estate or estates, interest or interests, to take effect after or in defeasance of his or their estate or estates, interest or interests, and shall not operate to give to the mortgagor or mortgagors a right to redeem the mortgage as against the person or persons entitled to any other nndivided or divided part of the money or land or rent; and wliere such of tlie mortgagees or persons afore- said as have given such acknowledgment are entitled to a divided part of the land or rent comj)rised iu the mortgage or some estate or interest tlierein, and not to any ascertained part of the mortgage money, the mortgagor or mortgagors shall bo entitled to redeem the same divided part of the land or rent on payment, with interest, of the part of the mortgage money which bears the same proportion to the whole of the mortgage money as the value of sneh divided part of the land or rent bears to tlie value of the whole of the land or rent comprised in the mortgage {x) . (r) R.S.O. (1897) c. 133, s. 20. ()(;) FauMs v. Harper (188U) 2 Ont. 405; 9 Ont. App. r)37: 11 S.C.li. 639; see also Martin v. Miles (1883) 5 Ont. 404. (j) R.S.O. (1897) c 133, s. 21. LIMITATION OF ACTIONS FOR REDEMPTION. 381 But where the mortgagees are jointly interested as trustees and have no beneficial interest an acknowledgment given by one is altogether inoperh,tive (y). If a mortgagee keeps an account of the rents derived from the lands and renders a sitjned account to the moi't- gagor, this will be a sufficient acknowledgment of the mortgagor's title (s). A letter written by the mortgagee and sent to the mortgagor in which he states his willingness to give an account is a sufficient acknowledgment (a). The admission of the mortgagor's right to redeem must be unequivocal to constitute a valid acknowledgment. Thus an admission by the mortgagee that he holds under a mortgage title is not sufficient (b). In one case an acknowledgment given after the statutory period had elapsed was held sufficient to restore the mortgagor's right to redeem (c) ; but this has been doubted in a recent case and would seem open to question, for the words of the statute " in the meantime " refer, it seems, only to the period of ten yeai"s after po.ssession taken (d). Section 19 does not provide that the right of the mortgagor is to be extinguished but only that he shall not bring an action. Under section 15 it is expressly provided that the right of the person claiming the land or rent shall after the lapse of the statutory period be extinguished (e). But it has been held that section 15 i'< applicable to mortgage cases, and has the effect, when the mortgagee is Signed tiecoiint of inortgiicrof in possession sufficient. Letter .stat- ing williiifr. ness to give an account.} Admission of I'ight must be unequivocal. Acknow- ledgment given after statutory period has elapsed. Right of action barred. Title extinguished (//) Richnrdson v. Yintnijc (1870) 10 Eq. 295; (1871) G Ch. 478. {:) Baker V. Wcttou (1845) 14Sim.4'_n); Richanlsonw Yoiingc (1870) L.R. 10 Eq. 295. (a) Kh'hardxoH v. Youngc {1^10) L.K. 10 Eq. 295. {!)) Tliomjison v. Bomjvr (18G:3) 9 .)ur. N.S. 863. {(') Staiisjicld v. Hob.son (1852) 16 Beav.236; 3 DeG. M. & G. 620. (d) Markirick v. Harduioliam (1880,1 15 Ch. D. 339, at p. 346. (e) Dawkins v. Lord Penrliyn (1877) G Oh. D. 318: Court v. Walsh (1882) 1 Ont. 107. 382 RIGHTS AND LIAJilLITIES OF THE MORTGAGOR. ,»'•■•■ I" ^ ..» «::": lu 1.1. tM'.;;i „.Ji ;'.jH. •t: V.-,4 ,', !"n»fc ::> rii Disiiltility of mortj;iig<)f not proviilcd for. barred by .statute, of transferring the entire riglit and estate of the mortgaj^ee to the mortgagor (/ ). An acknowledgment made under section 13, after the hipse of tlie statutory period, has been held to be unavail- ing (g). And so possession obtained by the mortgagee after the lapse of the statutory period does not revive his title (/i). It will be observed that the sections above quoted make no provision, nor is any provision made in the act, for the disability of the mortgagor or those claiming under him ; and the opinion has been expressed that in such a case no further time can be allowed for redemption (i). In England before the passing of the Imperial Act (j) from which our enactment is taken, courts of equity regulated the time allowed for redemption by analogy to the old Statute of Limitations (k) and gave further time for redemption in case of any di.sability mentioned in that statute, namely^ imprisonment, infancy, coverture, un.sound- ness of mind or absence beyond seas. Decisions It has been held in England that the sections providing aflowaiicefor ^'^''' disabilities in the case of actions to recover land or rent do not apply to the case of a mortgagor redeeming as an action for redemption is not an action to recover land within the meaning of the sections (I). if) Heath v. ruqh (1881) G Q.B.D. 345; Court v. Walsh (1882) 1 Ont. 167. [(j) M<-l)nmti\v.McI))tniih (1851) 8 U.CR. 388; Doe d. Perry v. Hen- derson (1840) 3 U.CR. 48(i. {h) Court V. >r«(,s7t(1882) 1 Ont. 167; i» Ont. App. 294; Bnian v. Cou'dal (1873) 21 W.R. 693; Sanders \. Sanders (1881) 19 Ch. D. 373. (0 Leith's Blackstone (1880) 2nd pd. p. -44; Lord «t. Leonard's Real Property Statutes c. 1, s. 6, p. 4.j. ij) 3 & 4 Win. IV. c. 27. (A-) 21 .lae. 1, c. 16. (l) Einsman v. Bonsc (1881) 17 Ch. D. 104; Forster v. Patterfou (1881) 17 Ch. D. 132; see fV»»*?.v v. Harper (1884) 9 Ont. App. 537, at p. 550 jJtr Burton, J. A, (now C.J.O.). disabilities. LIMITATION OF ACTIONS FOR UEDEMPTION. 388 But the better opinion would .seem to be that an action Kecleinjition for redemption is an action for the recovery of land and action to that section 43 applies to an action for redemption (»;). rocovfiliuui. In Fa ulds y. Harper {ii) the court refused to follow the English cases of KiU'Sinan v. Rouse (o) and Forster v. Patterson {])). In the case of Fa ulds v. Harper in the Supreme Court of Canada (r/) Strong, J. (now C.J.) said : — "I think it well however to add that if I had to choose between the decisions in Cahhcell v. Hall and tliose in Khisiiiati v. lion.sv and Forster v. Patterson I should certainly iiave agreed with the learned judges in the Divisional Court, for the reason that since the two cases in 17 Chancery Division were decided, the House of Lords has held in Puyh v. Heath [r] that a foreclosure suit is an action for the recovery of land. This being so it ioWowa n fortiori that a redemption suit is also an action for the recovery of land." The Real Property LimitaAion Act {s) has no applica- Limitation tion to and places no limit of time on the redemption of ji^^ apply lO mortgages of per.sonalty other than leaseholds. persoiuilty *"'■•' _ except But the courts have in recent cases recognized and leaseholds, applied the principle, in regard to equitable claims to per.sonalty, that where there is a remedy in equity, cor- responding or analogous to a remedy at law which is subject by statute to a limit as to time, equity will act by analogy to the statute and impose a like restriction (t). Where, however, real estate and a life insurance policy have been included in one mortgage to secure one indivisi- ble .sum, the mortgaged pioperties being subject to one and the samf provi.so fur redemption, and the mortgagee has bevn in pos.session of the veal estate for more than the statutory period without any acknowledgment of the (w) CahhrvU v. Hall (1S(!1) 7 U.C.L.,). 412; FanUls v. Harper (188L>) 20nt.4()."): (ISSO) 11S.C.K.G55; y'i/r//i v. i/t«//( (1882) 7 App. Cus. 235. (>() (1882) 2 Out. 405. (o) (1881) 17 Ch. D. 104. (/>) (1881) 17 Ch. 1). 1;12. {q) (188r)) 11 H.C.K. (iao, at p. G55, (»•) (1882) 7 App. Cas. 235. (,v) R.S.O. (1897) c. 133. (0 A'NO.r V. f;i;<' (1872) L.K. 5 H.L. 074; Allranl \. Ski inier {1887) 3G Ch. D. 145, at p. 18C; Beck v. Pierce (188S)) 23 l^.B.D. 316, at p. 322. 384 RIGHTS AND LIABILITIES OF THE MORTGAGOR, ('■ * In I.I.. a:,t: • ■•■»«(r Laches. Delay in proceeding after judg- ment. Right of redemption m.ay be barred by lapse of time. mortgagor's title, ho tliat tlie mortgagor's right to redeem the real estate has become barred, liis riglit to redeem the policy is also barred — not by analogy to the statute, but because, it having become impossible for the mortgagor to require a reconveyance of the real estate, it has become equally impossible, according to the rules regulating the administration of mortgages in a court of equity, for him to require a re-assignment of the policy, the real estate and the policy together constituting one security for the debt(»). That lapse of time which would be a statutory bar to the assertion of a claim before litigation should, as a general rule, apply by analogy to induce the court to exercise its discretion by holding its hand when the laches occurs in the prosecution of an action, whether before or after judgment. In Re Leslie (v), after the usual decree for redemption liad been pronounced in favoui' of a mortgagor, who was at the time and continued afterwards to be a lunatic residing in Scotland, no proceedings were taken under it for over twenty years. Although S(!veral connnimications with reference to the suit passed between the mortgagor's solicitor and his curator, the latter never intervened. For some years before, and during all the time after, the making of the decree, the mortgagee, or those claiming under him, had been in possession of the mortgaged premises : and the petitioner in this matter, claiming under the mort- gagee, sought, after notifying tlie curator of the facts and proceedings, to quiet his title under the Quieting Titles Act. It was held that after the great and unexplained delay in the redemption suit the decree made therein was no obstacle to the petitioner's obtaining a certificate of title. 'J'he principle on which redemption is founded is relief against forfeiture : and the equity is not to be allowed («) Charter v. Watson [I89d] 1 Ch. J75. (r) (1893) 23 Ont. 143. LIMITATION Ol" ACTIONS FOll HEDEMl'TiON. 5iH5 wliere the iTiort>,'a<,nH! has Ix-en fjuilty of no misconduct, and iVom tlio dealings of tlic parties the jillowance would work injustice, though the statutory perif)d lias n(jt elapsed since the ritjht to redeem accrued (f). A s(!curity created by a couN-eyance to a trustee for [j;"^';);^^'^"'"' sale is within the provisions of the act, even although the for siilc is a 1 , ,1 • 1 / A mortgage. conv(!yance is made to a tinrd person (.<•). Where the; mortgagc'e purchases the equity *' D '' m: (^ 1" lu i,v. c ■::i ■w iM «» »J ;i». t «• '>• H -t: i« oHjJi • k «> :.h-».* ^ <• f.JVH •■ »■•..■*». ( .'"> ( "», -«" % « *••'•»., \ ■ - .3 -. ■;::> i:;:c.::; I" • Effected by a statutory discharge. Upon jMi^'iiii'iit of tlie iiiiKniiit wliieh i\w inortt,'a<;'('(' is cntitlivl to t'laiiii i'voin the inoi"t<(ii<;or, Hoekint; i'(!(l<'inptif)ii jind liiiviiiii a riuht to rodoiMii, the niortiiaiior in entitled to a reconveyane(> of the nioi't<;a<;ed lands to liiiMHelf, or if he desii'es it to an a.ssii;nnient of the niort<;'at;e debt and a conveyance of the niort»> dft'iiifd ii diHchiirKi' of the iiiortt;iiKe. and tlio ecrtificut*' so i'('Kif;or, liis heirs, exfpiitors, administrators or assi;;ns, or any person lawfully clainiinj; liy, throiifrh or unih'r him or them, of the orij^inal estate of the mortj^a^for. Tho objoct of tlK) eiuictmcut as stiitftl by Lofd Ibils- I'mpose of . . . . , statutory bury in constriiiiiij a similar statiitc in Kiioland " was to disdmrKe. <^et rid of conveyancing; fornialitit's and to make the receipt ifiven under the statute to operate as tliouo;h it were a conveyance (c)" A certificate of discharoe of niorto-aoe operati's as a reconveyance, not upon its execution and delivery, but only upon reoist ration (r/). So where a certificate of discharoe was lost belore J>i>). Where the pei*Hon entitled to receive the niort;;a«;e money and to dischar^je any rej;istered niort^ajje is not tlu; niort}^a<;ee he nuist rej^jisterat his own expense, prior to tin? rejfistration of th<^ certificate of discharjje, the instrnnients thi'ou^h which he claims title to the mortj^ap' moneys, and until such instruments or d(X'uments an^ re}xist«!red the I'e^istrar is not emiwwere*! to repster the certificate (f/). In case of refusal to procun? and register tlu^ instru- ments, the person receivinj; the mortjjaj^e money may be compelled hy ord»'r of a .judj;e to e discharj^ed and the lands released therefronj by the registration of a similar certificate (rr). If it is desired to reconvey only part of the lands com- prise inortKiijiec or any nssipiieo of tlie niortpigt'c desirt-s to releiiHO or disi'hnrRn part only of the lands oontainod in the mort- gage, or to release or discharge only part of the money specified in the mortgage, he may do so hy deed or by a certificate to be made, executed, proven, and registered in the same manner as in cases where the whole lands and mortgage are wholly released and dis- charged; and such deed or certificate shall contain as precise a description of tlie portion of lands so released or discharged as would be necessary to be contained in an instrument of conveyance for registration under this act, and also a precise statement of the amount or particular sum or sums to be released or discharged. Mortgage and assign- ment, if any, must lie registered. Person receiving mortgage money must register instruments through which he claims title. Discharge of lien or charge. Partial discharge. Must contain description of lands and amount released. (;>) B.S.O, (1897) c. 136, s. 76. («/) R.S.O. (1897) c. i:i6, 8. 78. (r) R.S.O. (1897) e. 1;J6, s. 79. (»r) R.S.O. (1897) c. 136, s. 85, Schedule N. 390 HHJHTS AND LIABILITIES OF THE MORTOA i( it. tl:', <• »■> ...4 '• •••■I f Z"xr"' C'~"Ti If. MortpnRor in poHHOBsioii after pay- ment of mortgafje. In whom discharge vestfc t!ie estate. A mortj^aj^or or otlu^r porson entitled to the etiuity oF redemption has a ri;;ht to obtain at his own expense from the m(i?'t;^aj;ee a ivconveyance of th(^ mortj^aj^ed premises, inehidin;; a eovenaut apiinst incumbrances. He is not oblicred to accept the siniple discharge of mort HECOXVEYAXCE. 391 ity (,r from mi SI'S, 'H not fo prt!- nount itod a ! that >y the tatiiij; )ayin^', ,'h the esired, The The result of the decisions app«uirs to l)e that it is immaterial whether the name of tlv m;a<;e moneys, and after his death his widow paid the remainder on behalf of his estate. The dischar^je recited that the mort;;aji;or had satisfied the moneys due on the mort»J^at;e. It was held that the estate vested in the heirs-at-law, and that the misrecital was of no consecjuence. In Fisher \. Spoil n{z) tha mortj:;aj;or conveyed away his ecjuity of vedeuiption, and the mortfjatife was afterwards dischariied. It was held that the estate * ested in the assignee of the e(juity of redemption. Where a mortjjaj^or conveyed the equity of redemption subject to a mortt^ap*, a discharije of which was rej^istered on the same day as the deed, it was held that the deed must be assumed to have been delivered before it was Ve»ts in tlie person best entitled to the legal estate. Ileirs-at-lnw Purchaser of equity of redemption. Assignee of mortgagor. (r) McLctimii v. McLcnii (1879) 27 Gr. 54; Carrick v. Smith (1874) 30 U.C.K. 348. (if) Carrick V. Smith (1874) 35 U.C.K. 348; Jirown v. McLcnn (1889) 18 Ont. r)33; I'ensc v. Jackson (18(i8) 3 Ch. r)7(>; Hoskitig v. Smith (1882) 13 App. Cas. 582; J{ohi„son v. Treror (1883) 12 Q.B.D. 423; Fourth City Mutual liencjit ItuHdiuy Society v. IVUliams (1879) 14 Ch. D. 140. {x) R.S.O. (1897) c. 13<>, s. 7t). (.V) (1874) 35 U.C.R. 348. («•) (1883) 4 C.L.T. 446. 392 HHiHTS AND LIAHILITIES OF THE MORTOAOOR. ,<• — •* r. lior.t mortgage deed. New mortgngee. Second mortgagee. Discharge of mortgage paid otf by new loan must be registered. iv^isti'ivd, iiiuJ the clischarjje of tho moi'tga^e on roj^iHtra- tioii opca*att'(l as a rt'conveyanci! to tbe assignee of the niortgaj^or witliin tlie nieaninj; of the act(»/). Where the niort<;a). Where a mortgage is paid oti', the mortgagi'e is bovnid to reeonvey the })roj)erty so that it will revest in the mortgagors. If he shonld reeonvey to on<' of several mortgagors, he will be liable at the suit of the other mortgagors for any loss they may sustain thereby (c). And when a mortgjigee advanees mortey to pay ofl' an existing mortgage a diseharge of tlu^ latter will vest the estate in the new mortgagee as being the pei'son best entitled to call for the legal estate {?HKor Hhnll, in writing, have HUthorized the retention of the snid diHoiinrtje for u lonf^er period. Sucli registration Hhall not effect the right (if any) of any niortf^aKAe or pnrehaser who may iiave ])aid oiT hiu-Ii mortgage to he HiiliroKated to tlie rightH of the mortj^agee wliose niortf;a);e debt Iuih )>een ho paid. Whore a iiiortjjajfi'o creates a Hub-iiu)rt^a<;e by as.sigt»- ment of his inort^ajje, it is doubtful whether tliecU'rivative niortjjagee ean <;ive a vaH from him. Where a reconveyance is etf'ectee, in whom the lej^al estate is vested, may reconvey the lands l)y deed. An aj^ent of the mortt^aj^ee empowered to receive the mortgage money and give a discliarge therefor may sign a certificate of discharge so as to revest the lands, although he cannot, apart from the statute, reconvey the lands, not being invested with the legal estate (A). In Lee v. Mort'oir (i) a, discharge of mortgage was executed under a power which, after authorizing the attorney to seU the principal's lands and give receipts for the consideration money, gave power, upon payment of all or any debts, to give proper and sufficient acquittances and discharges for the same ; and it was held that the attorney had ."ufficient authority to sign the statutory' certificate. Formerly in case of the death of the mortgagee during the currency of the mortgage there was some inconvenience witli regard to the reconveyance. On the death of the mortgagee his executor or admiaistj'ator became entitled to the moneys secured bj'^ the mortgage as personalty (j), niHoharpe of sub- mortgage. Who may recoil vev. Agent of mortgagee. Formerly estate of mortgagee devolved upon heir. (g) R.S.O. (1897) c. lao. (ft) Lee V. Morrow (1866) 25 U.C.R. 604. (i) (1866) 25 U.C.R. 604. ij) Thornboroiigh v. Baker (1675) 1 Ch. Ca. 283 ; 18 R.C. 231. 304 RIOHTS AND LIAHILITIES OF THE MOHTOAfiOR. •• •!• ...J • •••■** CO Exeeutoror iidminiHtra- torof mort- (jftRt'e niiiy now foiivey and the inort^a^ed laiuls, uii1«!h.s dispoHi'd of by the mort- gagee, di!Volv('d upon tlu; heir-at-law. In hucIi a case the heir became trustee of the hinds for tlu^ person entith'd to the money and was the proper person to reconvey to tlie mortgagor on payment of the debt. This inconvenience was remedied by section 1 1 of tl»e Act respect In;/ Morftfdges of Real E»tnte{k), wliereby tlie executoi' or aayment of the principal money and interest due on the mortgape, or on receipt of the consideration money for the a.^signment, may convey, assign, release or discharge the mortgage deV)t and the mortgagee's estate in the land; and such executor or administrator shall have the same power as to any i)ortion of the lands on payment of some part of the mortgage debt, or on any arrangement for exonerating the estate, or any part of the mortgage lands, without payment of money; and stieh conveyance, assignment, release or discharge shall be as effectual as if the same had been made by the person having the mortgagee's estate {kk). Survivor of Where there are two or more mortgagees entitled to two or more .i - • • i. i -i • mortgagees, ^he mortgage moneys on a jonit accotnit tlie survivors or the last survivor, or the personal representatives of the last survivor, may by receipt in writing give a complete discharge for the moneys due. This is provided for by sub-section 1 of section 13 of the Act respecting Mortgages of Real Estate (I) which is as follows : — 18. (1) Where in a mortgage or an obligation for payment of money, or a transfer of mortgage or of such obligation, the sum, or any part of the sum, advanced or owing is expressed to be advanced by or owing to more persons than one out of money, or as money, (k) R.S.O. (1897) c. 121. (kk) In Manitoba a similar provision is made by K.S.Man. (1891) c. 146, 8. 13. In Nova Scotia see K.S.N.S. (1884) c. 84, s. 20 and Statutes of 1885 48 Vict. c. 32. (I) K.S.O. (1897) c. 121. IHSCHAHOE ANI> UECONVEYAX("E. 896 liiiort- [(' the |I(m1 to |o the '■t«-a^'e lit'Ioiifriiip; to {licni on ii joint uocoiiiit, or wliore u inortpiiKo, or bhpIi ini oltlifjiilioti, or such a tniiiNfer is nimlo to more |)er«oiis tliaii one, jointly, and not in rtharos— the niortpiign money, or other money or money's worth, for the tinii' tioin}^ due to tiioae jtersons on the mort- fjage or olilijjation, shall lie deemed to he and remain money or money's worth lielonnini; to those persons on a joint account, as between them and the niorttfaj^or or ol»li>;or; and the reeei|)t in writing of the survivors or last survivor of them, or of the personal rejiresentatives of the last survivor, shall be a complete discharge for all money or money's worth for the time being due, notwithstanding any notice to the pi.yer of a severance of the joint account. ThiH section ap})li('s only to a inorti(ao;e, oblifjation or tmiisfer made after the 1st (hiy of July, IHH(), and only if and as far as a contrary intention is not exj)reHsed in the ntortjjatje, obligation or transfer, ami shall have effect subject to the terms of the niortfjaj^e, ol)li«,'ation or transfer and to the provisions therein contained ()ii). The expression " lethal personal representatives " or " personal representatives " means executors or admitiis- tives. trators in their official capacity, unless a different meanin*:^ is given by the context (ii). This section should be read in connection with section 7(1 of the Re(fiiiti'i/ Act (o), above (]Uoted, which provides that a c(!rtiflcate of discharge executed by a person entitled to receive the money and to discliarge the mort- gage shall operate as a reconveyance. The effect of these two (inactments is to give tiie surviving mortgagees or as.signees, or the last survivor of them, or the personal representatives of the last survivor, power to discharge the mortgage and to reconvey the It^gal estate (p). Formerly when a mortgage was made to two or more mortgagees they took as tenants in common, and there was consequently no right of survivorship. Payment to a surviving mortgagee did not protect the person nuvking payment against misapplication of the money, and this is so still in cases not provided for by the section. It will * ' Personal representa- (»j) Sub-ss. 2, 3. (n) Stockdalc v.NicholiiOH (1867) L.K. 4 Eq. 359. (o) R.S.O. (1897)c. 136. (jj) Dilke V.Douglas (1880)5 Out. App. 63. '.mi KKUITS AND IJAIJIUTIKS !)K THK M«>HT Actual roe«'ipt of themoiK'y. Application of the money if payable to a truHtee. Discharge by mortgagees. be ()hHi'rv(!(l that tlicn; is iiotliiu"; in this (.'nuctiiu'nt that intfrfon's with tlio ;;t'tu'ial rnh' r('<|uirin^ payment to trustcH'H to he nuuK- to all jointly or on their joint n'coipt. The power ol" the survivor of several niort^a;;ees, or of the exeeutors or administrators of tin* survivor, to execute a valid disehar;^e, r timo KiviitH and |Mir|toH«'H wliutHoovt'r, UiKh-r this section it was held Hiat a discharj^e executed hy two of tliree executors was valid to release a niort;ja«;e made to the t»'stator(/»). This decision probably r»'sts on the j^i'oinid that one of several executors can receive and discharoje del)ts due to the estate. Hut where a iiiort^^a^or, who was one of the niort- «;aj;(M;'s executors, executed a dischar«;»^ of the n»ortj;a^e n.ade hy himself to the testator its validity was (jm^s- tioned(''). And wlu-re oih^ executor j^ave a mort«^a<;e to his co-executor to secm'e a debt due by him to the estate, and after the death of his co-executi)r <'xecuted a diseharjje of his own iiiorti;ao;e, it was held to be ineffectual ( (c). A foreimi administrator cannot effectuallv reh-ase a mort;ra<;e on land in this Province. Pavinent to him and a release by the heirs are not sufficient to entitle the owner to a certificate of title, free from incumbrances, under the Qvictiiuj Tiflcs A of mortj^nRP nnrt tli»' n'RiHtnition iliert'of, when' midi certifionti'H wcro t'X4'<'ut»'il by iiiiirritMl wonu'ii or n'jfiMtt'reil pri'viouMly to tin* liUh diiy of Di'ceinltor, IWiH, uccordiiif; to till' ttTiiiH of tli(< Act |mHH«'ietweeii said dafcH toiicliint; lier consent thereto in any wise, but notliiiint of only a portion of tlu- mort^ij?.., hI.hII I..- as yaii.l ami HT.M.fua in law ,iK a roliMiH.. of till. niortKa«f as to 8U<-h portion, as if t-Xfcutod by the j'Xfcntion debtor. (7) The proviHionH of this si-'i-M hhall extontl ami apply to all cases in whieii the seizure or paymen vviisbiiore, or since the »lstUay of December, 1874. IW) CHAPTER XXX. Right of MoHTciAooii to Asskjnment of the Mortcsage. Iiif]:ht to asHignment instead of reconvey- ance. ...J CO L '. .J '•« •> A inorttjagor may under certain circumstances require an assignment of tl)'3 mortgage security to be made to a third person named by himself. Section 2 of tlie Act respecting Mortgdges of Real Estate {a) is as follows : — 2. (1) Where a mortgagor is entitled to redeem, he shall, by virtue of this Act, have power to require the mortgagee, instead of giving a certificate of payment on reconveying, on the terms on which he would be bound to reconvey, to assign the mortgage debt and convey the mortgaged property to any third person, as the mortgagor directs; and the mortgagee shall by virtue of this Act be bound to assign and convey accordingly. (2) The right of the mortgagor under this section to require an assignment as aforesaid shall belong to and We capable of being enforced by each incumbrancer, or by the mortgagor, nowithstanding any intermfdiate incumbrance; but a requisition of an incumbrancer shall prevail over a requisition of the mortgagor, and as between incumbrancers a requisition of a prior incumbrancer shall prevail over a requisition of a subsequent incumbrancer. (3) This section does not apply in the case of a mortgagee being or having been in possession. (4) This section shall have effect notwithstanding any stipulation to the contrary (fc). This section requires the mortgagee to make an assign- ment on the terms on which he would be bound to reconvey. These words refer to the general terms subject to which a mortgagor may redeem, such as payment of the amount due under the mortgage and of the amount, if any, to which the mortgagee may be entitled by virtue of a right to tack or consolidate. But the mortgagor cannot by an assignment get a higher or better title to the estate than that to which he would be entitled under a reconveyance. The assignment (a) R.S.O. (1897) e. 121. {h) This enactment is based on the Imperial Act 44 & 45 Vict. (1881) c. 41, 8. 15. RIGHT OF MORTGAGOR TO ASSIGNMENT OF THE MORTGAGE. 401 must be subject to tlie rights of other persons interested in tlie t!((uity of redemption. Thus, wliere lands are mortgaged and tlien settled on the mortgagor as tenant for life with remainders over, the mortgagor, on redeeming, is entitled to call for an assignment to a third person only upon the terms that the assignment shall be subject to the rights of those interested under the .settlement (f ). The meaning of the corresponding English enactment was fully discussed in Teevan v. Smifh{d) by Jes.sell, M.R., who in delivering judgment said : — "It says, 'where a mortgagor is entitled to redeem.' Every mortgagor is entitled to redeem, but there is a difference in their rights. Where there is one mortgagor and one mortgagee, there, of course, his right to redeem is absolute; but where there are several successive mortgagees the mortgagor can redeem the next to him without redeeming any other; but if lie wishes to redeem any anterior mort- gage, he must also redeem all those who are between that mortgagee and himself So that the words ' where a mortgagor is entitled to redeem ' really includes every mortgag'^r, except a mortgagor who is precluded by some special term in his mortgage deed from redeem- ing within a specific time. For although the ilaw will not allow a mortgagor to be precluded from redeeming altogether, yet he may be precluded from redeeming tor a fixed i)eriod, such as five or seven years. That is why the words ' where a mortgagor is entitled to redeem ' are inserted. They mean where a mortgagor is not pre- cluded from redeeming for a certain time by some special stipulation. Then it says, ' he shall have power to require the mortgagee, instead of reconveying, and on the terms on which he would be bound to reconvey, to assign the mortgage debt and convey the mortgaged property to any third person.' It is only 'instead of reconveying.' The section assumes two things : first, that the mortgagee is bound to reconvoy to the person applying to him, and, secondly, that the transfer is to be instead of a reconveyance. Then see how it works. Where there are first and second mortgagees, and the first mortgagee has notice of the second, when he is paid off he becomes a trustee of the legal estate for him. The word ' reconvey ' is the proper word to use; it is strictly a reconveyance. If the first mortgagee is paid off by the mortgagor, he is not bound to reconvey the estate to him ; but if he is paid off by the second mortgagee, he is bound to reconvey it to him. The second mortgagee is a mortgagor under the definition in the Act. He is an assign of the mortgagor and is entitled to redeem Every person who is behind the first mortgagee is entitled to redeem, and is a morgagor within the meaning of the section, and if there are several successive mortgagees of the same mortgagor, which of them has a right i pr'ority to the others to call upon the first mortgagee to assign the mortgage? It must be that one who is next to him. The first incumbrancer has the first right to redeem, and it is impos- sible to suppose that it was intended that a puisne mortgagee was to have the right to call for a transfer of the first mortgage, before one who is prior to himself." Teevan v. Smith, (c) Aldcrson v.Elgey (1884) 26 Ch. D. 567. id) (1882) 20 Ch. D. 724. 402 RIGHTS AND LIABILITIES OF THE MORTGAGOR. CO .'.,1 '■<• -1. ; Mortgagee in possession not bound to assign. Who are included under "mortga- gor" and "mortga- gee." Consent of intermediate incumbran- cers. A mortgagee in possession is not bound to give an assignment of the mortgage ; but he may be required to give a reconveyance (e). Under section 1 of the Ad respecting Mortgages of Real Estate " mortgagor " includes " any person from time to time deriving title under the original mortgagor, or entitled to redeern a mortgage according to his estate, interest or riglit in the mortgaged property ;" and " mort- gagee " includes '■ any person from time to time deriving title under the original mortgagee." Where there are two or more mortgages made by the same mortgagor on the same property the mortgagor cannot require the Hrst mortgage to be assigned to a third person without the consent of the subsequent mortgagee (/). In Rogers v. ^Vilson (g) the defendant made two mortgages to the plaintiff' on the same property. The first mortgage being overdue, the plaintiff' brought action, asking for sale, payment and possession. After service of the writ of summons the amount due and costs were tendered by the defendant, and an assignnujnt of the first mortgage to a third person was also tendered for execution by the plaintiff". The plaintiff refused to execute this because of his second mortgage, although he was willing to execute a discharge ; and the defendant moved for a 'niantlamiis to compel him to execute an assignment. It was held that the plaintiff was justified in refusing to execute the assignment. Where both the mortgagor and the subsequent incum- brancer pay the money due to the plaintiff into the bank, the subsequent incumbrancer has the right to a convey- ance in preference to the mortgagor, and as between two (c) Stark v.Bcid (1895) 26 Ont. 257; R.S.O. (1897) c. 121, s. 2. (/) Tccvan v. Smith (1882) 20 Ch. D. 724; Rogers v. Wilson (1887) 12 P.B. 322. (fif) (1887) 12 P.R. 322. RIGHT OF MORTGAGOR TO ASSIGNMENT OF THE MORTGAGE. 403 ive an lired to ages of )m timo agor, or estate, " mort- enving by the )rtgagoi- ► a third jrtgagee ade two The first action, srvice of ^ts were the first xecution mte this i willing ed for a lent. It using to t incum- he bank, convey- veen two n (1887) 12 incumbrancers the one who is prior is entitled to the conveyance (/«.). But where the mortgagor has assigned his ecjuity of redemption, he is entitled, if called on to pay the mortgage money, to an assignment; and this, although the mort- gagee holds a subse(juent mortgage from the purchaser of the equity of redemption (i) ; and he is entitled as against the purchaser of the equity of redemption to a charge on the land for the amount so paid by him (j). So where the mortgagor of certain lands sold them for a sum in excess of the amount of his mortgage, the purchaser raising such excess b}' a mortgage to the original mortgagee, the mortgagor was held entitled to an assign- ment of the mortgage made by him on his paying the original mortgagee merely the amount due thereon, and without paying oft' the second mortgage (/«;). In such a case the holder of the second mortgage would be entitled to demand a re-assignment of the first mortgage, but he could not insist on an assignment of the mortgagor's covenant to pay the mortgage debt (l). In St(irk V. Raid {r>i) the mortgagees in possession of certain lands afterwards acciuired by transfer a second mortgage on the same property, and then brouglit action on the covenant in the first mortgage against the original mortgagors, who had parted with the equity of redemption before the second mortgage was given, and who demanded a reconveyance upon payment of the amount of the first mortgage, subject to equities of redemption existing in {h) Tct.an v. Smith (1882) 20 Ch. D. 724. (t) Stark V. Rcid (1895) 2G Ont. 257; Khmaird v. Trollope (1888) 39 Ch. D. 636; Wheeler v. lironke (1894) 26 Ont. 96; Queen's College v. Claxton (1894) 25 Ont. 282. (j) Hamilton Provident Loan and Investment Society v. Smith (1888) 17 Ont. 1. (fc) Wheeler v. Brooke (1894) 26 Ont. 96. (I) Wheeler v. Brooke (1894) 26 Ont. 96; see also Gooderham v. Traders Bank (1888) 16 Ont. 438. (m) (1895) 26 Ont. 257. Mortgagor's right to assignment after parting with equity of redemp- tion. Right to re- conveyance. 404 RIGHTS AND LIABILITIES OF THE MORTGAGOR. cc CO « t: Assignment to nominee of mortgagor. Person liable to pay mortgage not entitled to assign- ment without paying other mortgages. otlier parties. It was held that the original mortgagors were entitled to this, and that the mortgagees could not tack the amount of the second mortgage to the fir.st and require payment of both (/? ). In Queen's College v. CUixton (o) a mortgagor of land conveyed his ecjuity of redemption to several grantees, one of whom agreed to pay off the mortgage, and some of whom also executed further mortgages upon the land. The tirst mortgagee proceeded to foreclose and to sue the mortgagor upon his covenant, whereupon the latter recjuested the tirst mortgagee to assign his mortgage to a third person who had advanced the money and paid ott" the mortgage. It was held that the first mortgagee was bound to execute the assignment as asked, notwithstanding the subsequent incumbrances (oo). And even if the redemption money had been that of the mortgagor himself, it would have made no difference ( p). Where, however, there are two mortgages, upon both of which the person requiring an assignment of one is primarily liable as between himself and the other per.sons interested in the equity of redemption, he will not be entitled to an assiginnent without paying off the other mortgage. Thus in Thompson v. Warivick{q) mortgagors of land sold it subject to the mortgage, the purcha.ser giving them a second moitgage to secure part of the purchase money. The purchaser then sold the land subject to both mortgages, which his sub-purchaser covenanted to pay off. Subsequently the first mortgagors, under threat of action, paid the claim of the first mort- gagees, and took an assignment of the first mortgage. It was held that the sub-purchaser, when called upon by (») Einnaird v. TroUope (1888) 39 Ch. D. 636, followed. (o) (1894) 25 Ont. 282. {oo) Teevan v. Smith (1882) 20 Ch. D. 724, distinguished; Kinnaird \. TroUope (1888) 39 Ch. D. 636, followed. (p) Queen's College v. Claxton (1894) 25 Ont. 282, per Boyd, C. (q) (1894) 21 Ont. App. 637. RIGHT OF M0RTGA(30R TO ASSIGXMEXT OF THE MORTGAGE. 405 gagors the first mortgagors and first purchaser for indemnity against the first mortgage, was bound to pay it, and was not entitled to an assignment thereof, without also paying the second mortgage. In Muttlchury v. Taylor (7') the owner of property mortgaged it, and then sold subject to the mortgage, taking from the purchaser as part of his purchase money a second mortgage, which he assigned to the first mort- gagee. The purchaser then sold to a sub-purchaser who, to obtain an extension of time on the first mortgage, entered into a covenant with the mortgagee to pay it, and afterwards sold the propert}'. In a foreclosure action the mortgagee claimed an order for the payment of the first mortgage by the sub-purchaser under his covenant, and the latter refused to pay the amount due on it unless the inortgagee would a.ssign the mortgage to him. It was held that the mortgagee was not bound to assign unle.ss the sub-purchaser paid oft' both mortgages. Where there are other persons interested in the equity of redemption besides the person redeeming, the convey- ance should be made subject to the rights of all parties interested (s). The mortgagor or other person redeeming is not entitled to any covenant from the mortgagee except the usual covenant against incumbrances (t). Before this act a person redeeming a mortgage was entitled to a reconveyance of the lands, but not to an assignment of the mortgage debt (a). Assignment should be subject to equities of other persons Mortgagor redeeming entitled only to covenant against incumbran- ces. (»•) (1892) 22 Ont. 312. (a) Kinnaird v. TroUope (1888) 39 Ch. D. (536; Gooderham v. Traders Bank (1888) IGOnt. 438; Stark v. Reid (1895) 26 Ont. 257. (0 Gooderham v. Traders Bank (1888) 16 Ont. 438. (n) Gooderham v. Traders i?awifc(1888) 16 Ont. 438. CHAPTER XXXI. Right of Mortgagor to Indemnity. ecu ...J I: • 'J Mortgagor selling entitled to indemnity. Reason for this rule. A mortgagor selling his equity of »*edemption is entitled in the absence of any stipulation U the contrary to be indemnified by his vendee against the mortgage (a). The principle of the rule was thus stated by Lord Eldon in Wariiig v. Ward (b) : — "If be (the purchaser) enters into no obligation with the party from whom he purchases, neither by bond or covenant of indemnity to save him harmless from the mortgage, yet this Court, if he receives possession, and has the profits, would, independent of contract, raise upon his conscience an obligation to indemnify the vendor against the personal obligation to pay the money due upon the vendor's trans- action of mortgage ; for, being become owner of the estate, he must be supposed to intend to indemnify the vendor against the mortgage." In Jones v. Kearney (c) Sir Edward Sugden laid dowrk the doctrine of the court in these words : — ,' the clefendunt, 4er the deed of ;i.ry position of a .. wtre subject to ..licular obligation "Now, what was the situation in which K.; stood? He became the assignee of the pMi.^: the 24th of September, 1834. He was in the . »•.* purchaser buying an estate cum onere. The pr.n a burden : the purchaser did not enter into any \>, to discharge that burden, or to indemnify the seller; it was not necessary that he should do so. This court fastens on every such purchaser a liability to indemnify the seller against the incumbrances affecting the property sold. If I create an incumbrance on my estate, and sell, and no engagement be entered into with respect to that incumbrance, but I convey the estate subject to it, the purchaser is bound in equity to indemnify me against such incumbrance. It was my object, in so selling, to charge him and indemnify myself. This is a proposition which is perfectly clear, requiring no authority to support it." (o) Thompson v. mikes (1856)5 Gr. 594; Waring v. Ward {1802) 7 Ves. 332; Canavan v. Meek (1883) 2 Ont. 636; Boifd v. Johnston (1890) 19 Ont. 598; Jones v. Kearney (1841) 1 Dr. & War. 134; Jiridgman v. Daw (1892) 40 W. R. 253. (b) 7 Ves. (1802) 332, at p. 336. (c) (1841) 1 Dr. & War. 134, at p. 155. trans - >vvn RIGHT OF MORTGAGOR TO INDEMNITY. 407 In Walker v. Dickson {d) the law was stated by Burton J.A. (now C.J.O.) thus :— " It is familiar law, scarcely at this day requiring;: a reference to authorities, that where a person purchases an estate which is subject to a mortgage, meaning at the time of the contract to buy the estate subject to that incumbrance, he is liable in equity to indemnify his vendor against the incumbrance." When, liowever, a mortgagor conveys his equity of Implied redemption in the mortgaged property without any stipula- tion in the conveyance as to payment of the incumbrance, the right to indemnity against the incumbrance does not arise from anything contained in the mortgage or conveyance, but from the facts, and this may be rebutted by parol evidence or otherwise. The right, where it exists, arises from implied contract (e). This equitable doctrine of the right to indemnity Purchaser applies only as against a purchaser in fact, and, therefore, where at the request of the actual purchaser the land in question was conveyed to his nominee by deed, absolute in form, but for the purpose of security only, the nominee was held not liable to indemnify the vendor (/). In Eraser v. Fairbanks (g) a mortgagor agreed in writing to sell lands, subject to mortgages thereon, to a purchaser in trust for himself and others, who it was understood were to form a company to take over the property. Before the transaction was completed the company was incorporated, and the purchaser filed a declaration that he held the property in trust for the company, but gave no formal conveyance. An action having been brought against the mortgagor to recover interest due on U. mortgage against the property, the pur- chaser was brought in as a third party to indemnify the mortgagor against a judgment in the action. It was held. (d) (1892) 20 Ont. App. 90, at p. 102. (c) lieatty v. i*'/te,«w7«o»w (1893) 23 Ont. 245; British Canadian Loan Co. V. Tear (1893) 23 Ont. 664. (/) Walker v. Dicknon (1892) 20 Ont. App. 96. (j7) (1894) 23 S.C.B. 79. 408 RIGHTS AND LI AUILITIES OF THE MOKTUAOOR. revt'i-Hinfj to ait: '••i»iS (■■>-«• :"■—■"• 1 ' '.' "• m^: Mortgagor may call on purchaser to pay the mortgage. And may bring his action before he has paid anything. Several purchasers of equity of redemption. the decision of the Supreme Court of Nova Scotia, that the evidence showed tliat the sale was not to the purchaser on his own hehalf, but for tlie company, and the company and not the purchaser was liable to indenniify the vendor. When a mortga<]for, who has covenanted for payment of the mortjijage debt, sells his e(|uity of redemption subject to the mortgage, a relntion of suretyship arises between him and the purchaser as to the payment of tlie debt, and if the debt is allowed to run into default the mortgagor will be entitled to call upon the assignee to pay it(/i). If the purchaser of the equity of redemption covenants to indenmify the mortgagor the latter may maintain an action against such purchaser before he has been com- pelled to pay anything (i). Where a purchaser of part of an estate, subject to mortgage, gave a covenant to pay a proportion of the mortgage money, and a bill was filed by the vendor's assignee to compel payment by the purchaser, the court refused to give such relief, except upon the term of the vendor's share of the mortgage debt being paid at the same time, although there was no covenant by the vendor that he would pay. But the court refused to include a direction that the payment by the purchaser of his share should be conditional on the payment by other and independent purchasers of other parts of the estate of their .shares of the sum due. In such a case, however, it would seem that any of such purchasers paying the amounts properly payable bj'^ others would be entitled to use the name of the plaintiff in proceedings against such defaulting purchasers upon indemnifying him against costs (jf). (h) Campbell V. Robinson (1880) 27 Gr.eU. (t) Cullin V. Binn (1887) 5 Man. R. 8; Higgins v. Trusts Corporation of Ontario (1899) 30 Ont. 684; Mewburnv. Mackelcan (1892) 19 Ont. App. 729. (j) Clemow V. Booth (1879) 27 Gr. 15. RIGHT OF MORTGAGOR TO IXDEMMTY. 409 Xovii not to y. and ;ninify And if a mortgagor who has conveyed his equity of redemption, subject to the mortgage, is called on for payment by tlie mortga<(ee under the cov^Miant for payment, the mortijagor is entitled as aijainst the purcliaser of tlie equity of redemption to a lien on the lands for the amount which he is compelled to pay (k). Where the equity of redemption has been sold under a writ of execution against lands the mortgagor, if compelled to pay the mortgage debt, may maintain an action therefor against the purchaser, and shall have a lien on the lands for the amount he has been compelled to pay. This is provided by section 32 of the Execatiomi Act {I) which is as follows : — 32. A mortgagee of lands and tenements so sold, or the heirs or assigns of the mortgagee (being or not being plaintiff or defendant in the judgment whereon the writ of execution under which the sale takes place has issued), may be the purchaser at the sale, and shall acquire the same estate, interest and rights thereby as any other purchaser; but in the event of the mortgagee becoming the pur- chaser, he shall give to the mortgagor a release of the mortgage debt; and if another person becomes the purchaser, and if the mortgagee entorces payment of the mortgage debt against the mortgagor, then the purchaser shall repay the debt and interest to the mortgagor, and in default of payment thereof within one month after demand, the mortgagor may recover the debt and interest from the purchaser, and shall have a charge therefor upon the mortgaged lands. A claim against a purchaser of an ecjuity of redemption for indemnity against the mortgage debt may be assigned by the mortgagor to the mortgagee, and is enforceable by the latter (77i). So where a mortgagor sells his equity of redemption in mortgaged lands and takes a covenant for payment of the mortgage debt from his grantee, who in turns sells and takes a like covenant for payment, which lie assigns to the mortgagor, the latter may maintain an action thereon against the last purchaser {n). Mortgagor is entitled to a lien on lands for what he pays. Sale of equity under execution. Claim to indemnity may be assigned to the mortgagee. (fc) Hamilton Provident Loan and Investment Co. v. Smith (1888) 17 Ont. 1. (0 R.S.O. 1887, c. 77. (m) British Canadian Loai Co. v. Tear (1893) 23 Ont. 664. (m) Small V. Thompson (1897) 28 S.C.R. 219. 410 UIOHTS AND LIAI'.ILITIES OF THE MORTGAGOR. Married woman's liability to indemnity. In ManitolMi a covenant on t)ie part of the purchaser to pay the mortgajje moneys and indemnify the mortgagor is implied, unless otherwise expressed, in every instrument transferring land subject to a mortgage (o). A married woman who purchases an equity of redemp- tion is not bound to indemnify her grantor unless she expressly contracts to do so (/)). rv"' CO ::> (o) R.S. Man. (1891) c. l.'W, s. 81. A similar provision is in force in the North- West Territories, 57 & 58 Vict, (D.) (1884) c. 28, s. 65. (p) McMichael v. Wilkie (1891) 18 Ont. App. 464. pchaHor rtgagor pument jdenip- bss slu! Ci AFTER XXXIT. Right of MoinuAooK to an Account. In an action for foi't^closure, sale or redemption, the judgment tiHiially provides that an account be taken of the amount due on the mortgage, whether the mortgagee has been in possesHion oi- not (a). Wliere tlje action is for redenif Jon the writ should be indorsed for an account as follows : — " The plaintiffs claim is to have an account taken of wimt, if anything, is due on a mortgage dated and made between (parties) and to redeem the property com- prised therein " (aa). If the mortgagee has sold the mortgaged propcuiy under liis power of sale, whether he has been in possession or not, the mortgagor may bring an action for an account and to recover the surplus in the hands of the niortgagee(ft). In such a case the mortgagor should before action make a demand for an account, otherwise he may be dis- allowed his costs, especially if he makes charges which he fails to substantiate (c)- Such an action may be brought in the County Court if the balance claimed is within the jurisdiction (d). In an action on the covenant for payment the officer signing judgment in default of appearance computes the amount due. If the defendant enters an appearance but disputes only the amount claimed, he may serve a notice to that ett'ect ; and the plaintitt' thereupon may proceed to take an account of the amount due before the officer (a) See Holmested & Langton's Judicature Act, 2nd ed. 259, 739; Out. Rules 141,595, 596; Appendix toOnt. Rules, Forms 153, 154, 155. (««) Ont. Rule 140; Appendix to Ont. Rules, Form 9 (f). (ft) Beattyv. O'Connor (1884) 5 Ont. 731, 747; Eeddick v. Traders Bank of Canada (1892) 22 Ont. 449; Ont. Rule G45; Shepard v . Janes (1882) '21 Ch. D. 469. (c) Beatty v. O'Connor (1884) 5 Ont. 731. (d) Reddick v. Traders Bank of Canada (1892) 22 Ont. 449. Mortgage actions account directed. Indorsement of writ for an account. After sale mortgagor may bring action for an account. County Court. Action on the covenant : account taken by officer signing judgment. 412 KIUJITS AND LIAIJILITIKS OF THK MOUHJAdOK. ..4 Hurcharfi;e and fulHification. MortRnpeo must account forpurcliase money as caHh. Limitation o£ action for account. Six years limitation does not apply to surplus after sale under power. Hij^iiiiij,' ju(l;;iiM'nt, on four clear (lays' notice, and judf^incnt may bo entered for the amount found due (/). In takini^ tlit; account the mort^aj^or may be ^iven cr«!dit for sums which he would be entitled to set-oH' uj;ainst the mort^atjee(/). The mortgagor will be at liberty to surcharge or falsify (f/). The words " surcharge " and " falsification " have been defined as follows : — "If any of tiio parties can hIiow an onuHsion for which credit ought to bo K'ven, that is a HurcharKo; if anything is inserted that is a wrong charge he is at liberty to hIiow it, and that is a falsification (/«)•" A mortgagee is entitled to sell and give time for pay- ment of part of the purchase moni^y without the consent of the mortgagor ; but he nuist account for the purchase money as cash at the time of the sale, and ho cannot charge the mortgagor with the discount on the mortgage or the costs of turning it into cash (i). An ordinary action of account is barred after the lapse of six years from the time when the cause of action arose U)- But where a mortgagee has sold the lands under a power of sale according to the short forms act, an action may be brought by the mortgagor for an account although more than six years have elapsed from the time of sale. In such a case the mortgagee is an express trustee and section 32 of the Trustee Act (k) does not apply because if there is a surplus it is trust money still retained by the trustee (I). (c) Ont. Rules 176, 596. if) Dodd y . Lifdnll {ISil) 1 Ha. 333; Sovereign Life Assurance Co. V. i)odd L1892] 2 Q.B. 573. ig) In re Webb, Lambert v. Still [1894] 1 Ch. 73. {h) Pitt V. Cholmondeley (1754) 2 Ves. Sen. 565. (i) Beatty v. O'Connor (1884) 5 Ont. 731. ij) R.S.O. (lPr7) c. 72, 8. 2. (k) R.S.O (1397) c. 129. (/) Bigg.' v. Freehold Loan and Savings Co. (1899) 26 Ont. App. 232; In re Bell, Lake v. Bell (1886) 34 Ch. D. 462. 't-oH' hec'li PART V. RIGHTS AND LIABILITIES OF THOSE CLAIMING UNDER THE MORTGAGOR. CHAITKR XXXIII. Rights of Puh(;haseus ok the Kt^rrrv ok Redemption. A mortgagor iiuiy assijfu any I'i^hts incident to his Equity of ownership of the e(|uity of refhiniption {<(). But where n^,*iy'{J|,' '"" the e(juity of redemption was vahieless, and an assif^nnnent ii>^«igi»e*l. thereof was made merely for tlie purpose of enabling the assignee to impeacli for the benefit of tlie assignor a prior mortgage on the ground of fraud, the as.sigrnnent was held to savour of champerty and no relief was granted to the assignee (h). Where, however, the assignee takes benefi- cially ami the assiginnent is not made merely to enable him to sue in respect of the alleged fraud, it would seem that he may maintain the action (c). A mortgagor cannot, to the injury of an assignee of Assignee the e(iuity of redemption, receive rent from a tenant of entitled to the mortgaged premises in advance. Where, therefore, a '^®°*' mortgagor made a lease of the mortgaged lands, and gave an order for rent in advance to the mortgagee, to be, and which was, applied by him in discharge of other liabilities (a) Steers v. Rogers [1893] A.C. 232. (h) Muchnll v. Banks (1862) 10 Gr. 25; and see Liltle v. Hawkins (1872) 19 Gr. 267; fVigle v. Setlcrhigion (1872) 19 Gr. 512; Jiellv. fValker (1873) 20 Gr. 558; HiltOH v. IFoods (1867) L.K. 4 BJq. 432. (c) Seearv. Lawson (1880) 15 Ch. D. 426, 434, C.A.; Dickinson v. Burrell (1866) L.R. 1 Eq. 337. 414 PERSONS CLAIMING UNDER MORTGAGOR. I' (•■),■■' CO "lUl «;rO i: "1, entitled to benefit of covenants : entitled to surplus after sale. of the mortgagor, who afterwards transferred his equity of redemption to a bona fide assignee without notice of such advance of rent, it was hold that the owner of the equity of redemption was entitled to have the amount of rent so advanced applied in payment of the mortgage debt((Z). The purchaser of the equity of redemption is, in general, entitled to the benefit of covenants made by the mortgagee with the mortgagor. Thus where a mortgage contained a covenant to release any land sold during the continuation of the mortgage upon the payment of £200 per acre, and an assignee of the mortgagor made a general payment upon the mortgage, and afterwards, upon selling a portion demanded a release from an assignee of the mortgagee, it was held that the benefit of this covenant would pass to an assignee of the equity of redemption, but that the mortgagee must receive the stipvilated sum per acre upon the sale of the portion to be released, a general payment on the mortgage not being sufficient {c). A mortgage on five stores expressed to be for .^ 10,500 contained a pi'ovision that the mortgagees would release the easterly store on payment of $2500, and any one or more of the other four stores on payment of $2,000 each, at any time on receiving a bonus of three months' interest on the sum so paid, and it was held that the benefit of this clause passed to the assignee of the ecjuity of redemp- tion, and that he was entitled to enforce it (/). A purchaser of the equity of redemption is entitled to the surplus after a sale under the mortgage. So where, after a sale of mortgaged pi-emises in an action for sale, the mortgagor made an assignment for the benefit of creditors before certain prior execution creditors had established their claims in the Master's office to the (rf) Gi/mowr v.ifoe (1874) 21 Gr. 284. (e) Webber v. O'Neil (1864) 10 Gr. 440. (/) Clarke v. Freehold Loan and Savings Co. (1888) 16 Ont. 598. RIGHTS OF PURCHASERS OF THE EQUITY OF REDEMPTION. 415 equity ice of of the unt of rtgage t'tgage ig the surplus, the assignee for creditors was held to be entitled to such balance freed from any liability to satisfy the executions out of it (). Thus in IViompson v. Warwick (c) mortgagors of land sold it subject to the mortgage, the purchaser giving them a second mortgage to secure part of the purchase money. The purchaser then sold the land subject to both mort- gages, which his sub-purchaser covenanted to pay ott". S'ibse(iuently the first mortgagors, under a threat of action, paid the claim of the first mortgagees, and took an assignment of the first mortgage to one of themselves. It was held that the sub-purchaser, upon being called on by the first mortgagors and fu.st purchaser for indemnity against the first mortgage, was bound to pay it, and was not entitled to an assignment thereof without also paying the second mortgage. And in MuMleliary v. Taylor (d) the owner of property mortgaged it and then sold subject to the mortgage, taking from the purchaser as part of his purchase money a second mortgage, which he assigned to the first mortgagee. The purchaser then sold to a sub-purchaser, who, to obtain an extension of time on the first mortgage, entered into a (a) Blackleyy.Kcnney{liso)i (1877)6 Ch. 1). 735; licll v. Sumhriand liuildinff Society (1883) 24 Ch. D. 618. (k) In re Howard's Estate (1892) 29 L.R, Ir. 2CG. (0 Taws v.KnowIes [1891] 2 Q.B. 564, at p. 572. (w) Barry v. Harding (1844^ 1 J. & La T. 475; Clark v. Ma)/ (1852) 16 Beav. 273; Cooper v. Cartwright (1860) Johns. 679. (h) Aldricit v. Cooper (1803) 8 Ves. 382. (o) Trestrail v. Mason (1878) 7 Ch. D. 655. (p) Leonino v. Leonino (1879) 10 Ch. I). 460. RKJHTS OF PURCHASERS OF THE EQl'ITV OF REDEMI'TION. 423 ago on to the )f tlu" 1(1 the 'efl hy tion 111 Miirshnlliiii; securities. stipulated that as between two or more properties subject to tlie same charge one shall bear the whole mortgage uit'hiistt> v. Thinlop (1882) 21 Ch. D. 583. (,s) Jones v. Beck (1871) 18 Gr. C71 ; see also Renwiek v. Bemimm) (1886) 3 Man. R. 387; in re Jones, Farrintjton v. Forrester [1893] 2 Ch. 461. (t) Aldrkh v. Cooper, Dnrlinm v. iMnkcster, Dnrham v. Arnistronrf (1802) 8 Ves. 382; 18 R.C. 19H. (u) (1885) 30 Ch. 1). 192, at p. 200. ((') See also Dolphin v. Anhvard (1870) L.R. 4 H.L. 486. 424 PERSON'S CLAIM IN Marshnlling. Purchaser of part of mortgaged lauds. Ill Jones V. Jii'ck {v) the facts were jih follows : A. thf r»'e and the rij^ht it conferred {(i). Where a mortijao'oe releases part of the mortjj^atjed lands after he has received notice that the other part has been sold, he will not bo entitled to charge the part sold with the amount due on the mortgaii;e. But more posses- sion of tho part sold by the purchaser tlun-oof is not notice of his interest (/>). is) (1880) 27 Gr. 450. (a) See also Rutherford \ . Rutherford (189U) 17 P.R. 228. (/>) Beck v.Mofatt (1870) 17 Gr. (iOl. Hiitisfactioii of inortf^iige ('()niprisinf» several parcels. Mortgagee releasing ])art of mortgaged lands. CHAITKR XXXIV. CO '"^h- ..,.1 iii Itcroliitinn of Ksliilis AvI. How equity of i'('n dt iif'tfr tin' Mh diiy of Miiy, IHitl, not (liHiiost'tl of or (•onvcycd l>y executors or uiliiiiiiistr:itorH witliiu twelve nioiitliH after the death of the tjistatoror intestate Mhall, snbjer-t to the Ldiid THIi'k Arl in the ease of land rej^istered under that act, at the ex]ilration of tin- said in'riod, whether jM'ohate of the will of the testator "v letters of ndniinistration to tin- estate of the intes- tate has ))een taken or not, he deemed thenceforward to lie vested in the devisees or heirs lieneticiaily e ri'^istercd, in the resist it otHce, or land titles otlice where the land is under the l.ditfl Titlis .id, of the territory in whicdi su(di real estate is situate, a caution uiuler their hands that it is or may he necessary for them to sell the said real estate, or part thereof, under their powers and in fulfilment ol' their' duties in that hehalf ; ami in case of suidi cautir)n lieinji so re};istered, this section shall not ai)iily to the real estate referred to therein for twelve months from the time of the rejristration of the last of siudi cautioTis if more than one are re^ristered. (U) The caution mny be in the form or to the effect following? : — We (A.H. aiul CD.) executors of {or administrators with the will annexed of, i>r administrators of) who died on or ahout the Witnesses. day of , 18 — (signed) A.B. E.H. G.H. And such certificate shall be of the like effect, and shall be acted upon by registrars and others to the same extent as if the same had been given to the mortgagor (b). Prior to 1849 an equity of redemption could >t be sold under execution (o). In that year the statute 12 Vict, chapter 78 was passed, tlie provisions of wliich are now con- tained in section 80 sub-section 1 of the Execittion Act. It was held under the former act that the ecjuity of redemption could not be sold after the death of the mort- gagor under an execution against the executor (d). Con- sequently in 18()3 the act was amended by 27 Vict, chapter 13 by the addition of the provisions now contained in sub-section 2 of section 30 of the present act. The following decisions show that the right to sell an e(|uity of redemption under the Execution Act is of a restricted nature. A sale of one of several lots included in a single mort- gage is unauthorized. The sheriff' cannot sever the equity of redemption ; he may only sell the equity in all the Formerly equity of redemption not saleable under execution. Equity of redemption cannot be severed. (b) In Nova Scotia the sale of the interest of a mortgagor of real estate is regulated by R.S.N.S. (1884) e. 124, which is similar in terms to the Ontario Act. In Manitoba by R.S. Man. (1891) c. 80. In New Brunswick by R.S.N.B, (1877) c. 42 & 47. (e) See Simpson v. Smyth (184G) 1 E. & A. 9. (d) Lowell V. Bank of Upper Canada (1863) 10 Gr. 57. 432 PERSONS CLAIMING UNDER MORTGAGOR. Lands in different countieH. ..J '•»».Ji {■Jo t'-v ^ Two mortga- ges on the same land. Mortgagee purchasing. lands comprised in tlie mortgage. And where the lands are in difierent counties the act does not apply (e). So where four persons joined in executing a mortgage of their joint estate, and subsequently the interests of three of them were sold under executions, it was held that the sale was inoperative and that the owner of the equity of redemption had a right to redeem ; and it was further held that tlie purchaser at the sheriff's sale, who was also the mortgagee, iiaving gone into possession of the mort- gaged estate, was bound to account for the rents and profits (/). It was held that a valid sale could not be made where there were two mortgages held by different persons upon the same propert}'^ (g). This decision, however, was questioned in a later case (k). But the eijuity of redemption in a portion of the lands and the fee in another portion may be sold together under a writ against lands (i). Where the judgment creditor, being also mortgagee, pin-chases at a sheriff's sale the equity of redemption in the lands comprised in his mortgage, bidding therefor just enougli to cover the amount due on the execution but paying no money except the costs of the sheriff, the sale is not a real sale and the sheriff's deed made in pursuance thereof is void ( j). The position of a mortgagee purchas- ing the equity of redemption at a sherifi"s sale is different from that of a stranger who purchases. A mortgagee purchasing, even if he is the holder of the judgment under (e) Hewardx. (TolfendcH (18G8) 14 Gr. 188; Vannorman x . McCarly (1869) 20 U.C.C.P. 42. (/) Cronn v. Chambcrlin (1880) 27 Gr. 551. (g) Donovan v. Bacon (1869) 16 Gr. 472, note; Wood v. Wood (1869) 16 Gr. 471. (/i) Samis v. Ireland (1879) 4 Ont. App. 118. (i) Samis \ . Ireland (1879) 4 Ont. App. 118. (j) Samis \. Ireland (1879) 4 Ont. App. 118. he lands tiortgage rests of leld that e equity further was also 10 Tuort- uts and be made persons ver, was he lands er under ortgagee, on in the efor just tion but he sale is •ursuance purehas- different lortgagee snt under V. McCarty 'ood (1869) RIGHTS OF EXECUTION CREDITORS OF MORTGAOOR. which the sale takes place, must give to the mortgagor a release of the mortgage debt (k). A sale under two executions, only one of which binds the debtor's lands, cannot be upheld (l). Where the execution was against three defendants jointly, each of whom had given a mortgage on lands which belonged to himself and not to the others, and the sheriff' sold the equity of redemption of all the defendants in all the lands, the sale was upheld (m). Where mortgaged lands are sold by the sheriff the purchaser acquires only the title that the mortgagor had at the time the writ was delivered to the sheriff*, not the title that the mortgagor had at the time of entering judgment (n). The purchaser of an equity of redemption under a writ of execution is entitled to possession as against the mortgagor in possession (o) ; but not as against a prior mortgagee in possession ( p). Where a writ of execution after renewal was lost in transmission to the sheriff through the mail, an order was made for the issue of a new writ, niuic pro tunc, to bear the same indorsements and evidence of renewal as the original wvit ; the order further directing that the substituted writ should have the same force and effect as the original {q). •* ' A sale of the equity of redemption under an execution against the mortgagor will not be set aside, in the absence of fraud or irregularity, merely on the ground of the inadequacy of the price obtained (s). (fc) R.S.O. (1897) c. 77, s. 3?; Samis v. Ireland (1879) 4 Ont. App. 118. (0 Samis v. Ireland (1879) 4 Ont. App. 118. (m) Rathbun v. Culhcrtson (1875) 22 Gr. 465. (n) Peggc v. Metcalfe (1856) 5 Gr. 628. (o) Fisken v.McMullen (1862) 12 U.C.C.P. 85. (;>) Doe d.Richardnon v. Dickson (1832) 2 U.C.O.S. 292, (7) Fairchild v. Crawford (1896) 11 Man. R. 330. (s) Parr y. Montgomery (1880) 27 Gr. 521. 4JW Sale of lands subject to several mortgages. Title acquired by purchaser. Possession. Loss of writ. Setting aside, sale . 434 PERSONS CLAIMING UNDER MORTGAGOR. Kxepution creditors are *' assigns." ,»'■■■< »• .m ( "v *» ••"■■■ •y. Execution cred'*ormay rest; dill cuttii'.^ of timber. Execution creditor, who is also mortgagee, impeaching prior mort- gage. Order for sale. Mortgage created by deed abso- lute in form. Equity of redemption in leaseholds E.KGCution creditors of the mortgagor are " assigns," and are entitled to notice of sale under a power of sale the terms of which require notice to be given to assigns of the mortgagor ; but only those having executions in the sheriff's hands at the time notice of default is given are entitled to notice (t). Where a mortgagor in possession was felling timber, t! t court, at the instance of a judgment creditor of the moii^ago" who had an execution against lands in the hands of the sheriff*, restrained future cutting by the mortgagor, it being shown that the property was a scanty security for the claims of the mortgagees and the amount due the execution creditor («'). A second mortgagee, as such, cannot impeach a prior registered mortgage as fraudulent and void against credi- tors, but a judgment creditor who has accepted a mortgage does not thereby lose his right as a judgment creditor to impeach the prior mortgage (6"). A decree for sale of the equity of redemption may be made at the instance of a judgment creditor, even although there is no writ of execution in the sheriff's hands (w). The act does not apply where the right to redeem does not appear on the face of the conversance, as, for example, where the mortgage has been created by a deed absolute in form (a;). The equity of redemption in a term of years cannot be sold under an execution (y). The right of an execution creditor under an execution against lands in the hands of the sheriff of the county in which the lands of the debtor are situate is a " lien," and (0 lie Abbott and Medcalf (1891) 20 Ont. 299. [u) Wason v. Carjicnter (1867)13 Gr. 329. (r) frarren v. Taylar, Eons v. Taylor (1862) 9 Gr. 59. {w) Johnson y. Bennett (1882) 9 P.li. 337; Kerr v. Styles (1879) 26 Gr. 309. (x) McCabc X . Thompson (1857) 6 Gr. 175; McDonald v. McUonell (1864) 2 E. & A. 393; Fitsgibbon v. Duggan (1865) 11 Gr. 188. (y) Doe d. Webster v. Fitzgerald (1839) E. T. 2 Vict. R. & J. Dgt. 1429; see also McDonald v. Reynolds (1868) 14 Gr. 691. lii RIGHTS OF EXECUTION CIIEDITOUS OF MOKTGAGOK. 435 in tlie .'en ai'o tho money niontioned in the writ is "money cluirt^ed upon land." Takin<; steps to sell under such a writ is a " proceedinjj;," and it' the writ, althout^h duly reiiewed. has been more than ten j^ears in the sheriff's hands, and no payment or acknowledtjmont has in the meantime been made or (jiven, as reijuired by section 2fS of the Real Property LirnUatloii Ad {z) the lien is gone, and pro- ceedings on the writ M'ill be restrained (d). Where the e(iuity of redemption cannot l)e sold under a writ against lands, a receiver may be appointed by way of equitable execution at the instance of a judgment creditor (/;) A receiver may be appointed ex 'parte of a mortgaged estate by way of execution against the mortgagor (r). Surplus money in the hands of mortgagees after sale under a power of sale in a mortgage is attachable { Lands held in joint tenuncv. Lauds held by tenants in common. Estates in remainder. Equitable estates. The ritjht of a widow to dower in iniTiiiitf lands is regulated by section 5 of tlu; Ontario JJoivcr Act which is as follows : — 8. Xo dower hIiuU l>e recoverable out of any land which has been heretofore or shall be hereafter jjranted by the UT(;.\«^ VVif'f jniniiip to Imr (lower now cntitk'il wlu'tlu-r or not liiisbiiiid (lies soiHcd. (lower ill any Hiirpliis of t\ui jniiThiise iiion»'y iirisinj; from Hiidi sale, which limy rfiimin after siitinfaolion of th(« chiiiii of tlic inortKaW't' or j^raiitcc, to tiiH HaiiH" cxti'iit hh h]w would liiivc lii-cii entitled to dower ill the land from which hiicIi HitrpliiH piircliasu money hIuiII be derived had the Haiiie not been HOld(»). This s(K'ti()H vviis Hrst cutU'tcd in 187f)(y>), jiiid iipjilics only to mort^fii^^cM iiiiuK' after tin- lltli < lay of Marcli, IH7!)(7). Prior to this ('luictmciit, if a iimrriiMl woman joined with lier liushand in ti inortt(a<;e to bar her dower, she wa.s not entitleil to dower in the e(njitablt! estate whic'li reniaitieil in her liusband after the niort!-^ ', tniless lie died beneficially entitled thereto: and t nsband nn is that a married wcjman is entitled to dower out of an e(|nity of n^lemption in land, whether or not her husband dies seised of it, where such an e(|uity has arisen by his havino- executed a mortp. 704: FJcury v. J'rim/lc (1878) 26 Gr. 07, (s, Pratt V. linnneU (1891) 21 Ont. 1; In re Luckhardt (1898) 29 Ont. Ill; MartindnlcY. Clarkson (1880) 6 Ont App. 1. (/) (1898) 29 Out. Ill, at p. 117, («) Now R.S.O. (1897) c, 164, s. 7. ; mm UKJUTS OK A DOWHKSS l\ M(>UT(i.\ liim iifltM' ii iiiort(;iiK<' in wtiicii hIk* hud joiiuMl; Itt-ciiusu, to liohl othnrwiH»> woi-ld ho to liol that tho bar of dower in the iiiort- , f^a^w oporatod not only to (^ivo full effect to the ri^lit of tlie rnortjfaj^ee under tlie inort^af^e, hut also enabled the huHl)aiid to deal with the e(|uity loft in him to tho prejudice of his wife's dower in it; anil this would be contrary to tlie exprens jjrovision in the section. An ecpiity of redemption created in this way, that is, by a niort>^aj^e of the lius- band'H loj^al estate, the wife ,i')ininfr to l^ar dower is, therefore, tindei' section t\ [now section 7] an exception to tlie f^eneral rule contaii'ed in section 1 [now section 'J] of the same Act which ^ives a wife dower only in those equitable estates of which iier husband dies seised." In cases not covei'ed l)y section 7 the do\yer in vided by section 2 applies and the wife will not Ije entitled vcdemption to dower out of an eciuitable estate unless thi! husl)and dies {""'clmsed ' _ a!ul sold by beneficially entitled, and the' husband may defeat her claim imsbund. by sellintj the estate even without her concurrence there- to (iv). Thus she will not be entitled to dower out of an eijuity of redemption purchased and sold by the husband in his lifetime, the le^al estate never havin<( vested in him (x). Where a purchaser of land subject to a mortfjfaj^e paid oft' the mortgage and procured a discharge in favourof the niort- gagor,and on the same day obtained his conveyance from him, giving back a mortgage, with bar of dower, for the l)al- ance of the purchase money, all of which instruments were registered in the above order, it was held that the (h) Prall V.Bunnell (1891) 21 Ont. 1; GemmiU \. NvlUgtin (189.-)) 'J6 Ont. 307; In re Lttckhardt (1898) *J9 Ont. 111. (v) (1891) 21 Ont, 1, at p. 6. (vv) now K.S.O. (1897) c. 164, s. 7. (w) Gardner v. liroicn (1890) 19 Ont. 202. (x) In re Luckhardt (1898) 29 Ont. Ill; Gardner v. lirown (1890) 19 Ont. 202; Craig v. Templeton (1860) 8 Gr. 483. 442 l"LRSON.S CLAIMING "NDER MORTGAGOR. >«' •' CO ...4 '•'it' .'""'Wt.!** A marripd womau is not entitled to a declara- tion that she has an in- choate rifrht of dower. Quantum of dower. Dower on basis of whole amount realized. Mortgage for unpaid pur- chase money. wife of sucli purcliaser was not entitled to dower out of a snrplufs ai'iHin) Gemmill v. NclUqau (189')) 20 Ont. 307; Ihmn v. Davin (187(5) 2;j Gr. 207; liohcrt.wu v. Uohcrtson (1878) 25 Gr, 480; Re Hague, Traders Bank v. Murraii (1887) 14 Ont, GOO. (o) Pratt V. liunncU (1891) 21 Ont. 1, as explained in (iemmill v. Nelliqan (1895) 20 Ont. ;J07; Campbell v. Roiial Canadian Hank (1872) 19 Gr. :t34. (d) R.S.O. (1897) c. 104. Dower in ful value of the lands. Jlortgage given to secure pur- chase money: dower in surplus only. Mortgage from wliich dower clause omitted will not be re- formed with- out con- sideration. 444 PERSONS CLAIMIXG UNDER MORTGAGOR. I* CO C'i"'"' ■•^^ ...1 Wife niiiy not claim dower if she executes mortgage. Mortgage executed before Ajiril lOth, ]8<).'). Kight of widow as against creditors. Devise of lands in lieu of dower. by inserting a proper bar of dower, there being no con- sideration to support a contract by the wife witli tlie mort- gagees to bar her dower (<'). It is provided, however, by the Dower Act(f) that no action of dower shall be maintained where a wife joins in a conveyance of lands of her husband although the clause providing for bar of dower is omitted. The statutory provisions are as follows : — 22. (3) Nor shall an action of dower be maintained where a wife on or after the 16th day of April, 1895, has joined or hereafter joins in a deed purporting to convey the land, or has signed or signs, otherwise than as a witness, a deed by which lier husband conveys or purports to convey the land, notwithstanding that the deed in either case con- tains no words purporting to convey or release her dower or other estate or interest in the land. (4) Nor shall an action of dower be nuiintained where the wife did prior to the said 16th day of April, ISOi), join in or sign any such deed: but this subsection is not to be construed as prejiidicing or affecting in any way the riglits of third persons claiming the land or some interest therein under a subsequent deed or mortgage executed by the wife prior to the said 16th day of April, 1895, and containing a conveyance or release of her dower or other estate or interest. If a woman joins with her husband in executing a mortgage to secure money borrowed by the husband, no portion of which is received by her to her own use, and after the husband's death the land is sold at the instance of creditors, the widow is entitled even as against the.n to be paid her dower out of the tjross amount realized on the sale, to an amount not exceeding the surplus after pay- ment of the mortgage. In the event of no surplus the widow may only claim as a creditor of her husband (g). Where a testator devised a portion of his lands, which were subject to mortgages, to his wife in lieu of dower, and gave tlie residue of his lands and all his per.sonal estate to his father, subject to the payment by his execu- tors of all his just debts, funeral and other expenses, it (e) lieUamy v.Badgcmw (1893) 24 Ont. 278. (/) R.S.O. (1897) c. 164, s. 22, sub-ss. 3, 4, first enacted in 1895 by 58 Vict. c. 25, ss. 1, 2. ig) In re Robertson (1877) 24 Gr, 442; Ulieppard v. Slieppard (1867) 14 Gr. 174. RIGHTS OF A DOWRESS IN MORTGAGED LANDS. 445 Right to redeem . was lield that the fatlier was bound to discharge the mort- gages, and that the widow was entitled to liold the part devised to her freed from the debts of the testator (li ). Where a wife joins in a mortgage, and on the death of the husband there are not sufficient assets for the payment of all his debts, the widow is not entitled to have the mortgage debt paid in full out of the assets, to the pre- judice of creditors (i). The wife of a mortgagor, who has joined in the mort- gage for the purpose of barring her dower to the extent of the mortgage only, has the right to redeem during her husband's lifetime and is a necessary party to an action of foreclosure in the first instance. And where she was not so made a party and judgment of foreclosure was recovered in her absence, she was, after judgment and report, added as a defendant upon her own petition and permitted to redeem, or to pay ott" and obtain an assignment of the mortgage (j). Even after sale of the mortija«;ed lands under iudg- ment of the court a dowress may be allowed to come in and prove her claim (/.). Where a widow entitled to dower did not join in a first Priority. mortgage but joined in a second mortgage to bar her dower, and the second mortgagee obtained priority over the first by prior registration, the widow was held entitled to the surplus arising from a sale under the second uiortgage in priority to the fir.st mortgagee (l). The Ontario Dower Ad (in) contains the following Dower where . . wife is n provisions:— l„natic. 11. Where a person, whose v. i.'e is a lunatic and confined as such in a public lunatic asylum in this Province, has heretofore while his wife (h) Dungey v. Dtnigen (1877) 24 Gr. 455. (0 Baker v. D:wbnrti (1872) 19 Gr. 113; fThite v. Basledo (1869) 15 Gr. 546. (j) Blong v.Fit^ijemld (1893) 15 P.R. 467. (k) Hyde v. Bartoti (1880) 8 P.R. 205. (/) Gray v. Coughlhi (1891) 18 S.C.R. 553; reversing S.C. sub nam. Maclennan v. Gray 16 Ont. App. 224. (w) R.S.O. (1897) c. 164. 446 PERSONS CLAIMING UNDER MORTGAGOR. was so confined, become the owner of land or hereafter wliile slie is so confined becomes the owner of land, sucii person may sell and convey or mortgage such land, freed and disciiarged of any claim of his said wife for dower therein, but no such conveyance or mortgage shall be made after the discharge of the said wife from the said asylum. Ksrr ■«:■' ••'••nl ■■■•«' i Dower where 12. (1) Where the wife of an owner of land has been living apart from wife living him for two years under such circumstances as by law disentitle her apart from to alimony, and such owner is desirous of selling or mortgaging the her husband, land free from dower, he may apply to a Judge of the High Court, and. if the Judge approves, lie may, by an order to be made by hi.n in a summary way, upon such evidence as to the Judge seems meet, and either w parte or upon notice (to be served personally unless the Judge otherwise directs), dispense with the concurrence of the wife for the purpose of barring lier dower, and he sluill (unless the wife has been so living apart from her husband under such circumstances as disentitle iier to dower) ascertain and state in the order the value of such dower, and order such amount to remain a charge upon the property, or to be secured otherwise for the wife's benefit, or to be paid and applied for her benefit as he deems best; and thereupon a conveyance or mortgiige by the husband, exjn'essed to be free from his wife's dower, shall, subject to any terms mentioned in the order, be sufTieient to bar her right tliereto, as if she had duly executed a deed jointly with her husband for that purpose. (2) This section shall extend to any ease in which an agreement for sale had been made, and a conveyance executed by the husband before tlie oth day of March, 1880, and part of the purchase money retained by the purchaser on account of dower or an indemnity given against such dower. 13. (1) Where an owner of land whose wife is a lunatic, or of unsound mind, and confined as such in a lunatic asylum, is desirous of selling or mortgaging tlie land free from dower, he may apply in that behalf to the Judge of the County Court of the county in which he resides or to a Judge of the High Court, and if the Judge approves, he may, by an order to be made by him in a summary way, upon such evidence as to the Judge seems "ueet, and either c.r parte or upon such notice as he may deem requisite, dispense with the concurrence of the wife for the purpose of barring iier dower, and he shall also ascertain and state in the oider the value of such dower, and order such amount to remain a charge upon the property, or to be secured otherwise for the wife's benefit, or to be paid and applied for her benefit as he deems best, and thereupon a conveyance or mortgage by the husband, expressed to be free from his wife's dower, shall, subject to the terms and conditions mentioned in the order, be sufficient to bar her right thereto, as if she were of sound mind, and had duly executed a deed jointly with her husband for that purpose. (2) On every such application the Judge shall be entitled to his own use to a fee of $5, and no other fee or charge of any kind shall be payable in respect thereof. (3) This section shall apply to any case in which an agreement for sale has been made and a conveyance has been executed by the husband, and any part of the purchase money has been retained by the purchaser on account of dower, and to any ease in which an indemnity has been given against the dower of the wife. Application where wife a lunatic confined in asylum. RIGHTS OF A DOWRESS IX MORTGAGED LANDS. 447 14. (1) In case tlie gaol surgeon of any county or district in which a married woman resides, and another medical practitioner to be named by the .Judge, shall each certify (Form A) that he has personally examined such married woman and that he is of opinion that she is insane, and the Judge of the County Court of the county in which such married woman resides, or a Judge of the High Court, also certilles (Form B) that he has personally examined such married woman, and that from such examination and from the ev'dence adduced before him, if such Judge thinks it expedient to hear evidence, he is of opinion that such married woman is insane, the said Judge may make the like order as by the ju'eeeding section of this act, is authorized in the case of a married woman of unsound mind who is confined in an asylum for the insane. (2) The examination and certificates required by this section must all be made and granted within a period of one month, or such certificate shall not be acted upon by the said Judge, and the applica- tion shall not be entertained unless it is made within one month of the day upon which the last of such examinations took place. Application where wife is a lunatic but not confined in asylum. 16. In case a Judge makes an order under any of the preceding three sections of this act, with reference to any parcel of land, he may afterwards make orders in respect of other sales or mortgages, either on the like evidence as is required for the first application, or on any other evidence which may satisfy him of the continued insanity of the married woman. Subsequent orders. 16. Sections 12, IJJ, 14 and 15 of this act shall apply to any case where any person owns, or has the right to sell or mortgage (whether as trustee or otherwise) land which is subject to dower, whether such dower is inchoate or complete, and whether the person applying is or is not the husband of the dowress. 17. (1) Where the wife of an owner of land has been living apart from her husband for five years or more, and the husband sells and conveys, or has sold and conveyed the land, or mortgages, or has mortgaged the same, the wife not joining in the conveyance or mort- gage, and the purchaser or mortgagee having no notice that the grantor or mortgagor had a wife living at the time, such i)urchaser or mortgagee may apply to a Judge of the High Court and have the same relief or to the same etfect, and suliject to the same conditions, and by the same proceedings, as j)rovided for a husband of a lunatic wife under this act. (2) The rule .and practice shall be the same where the husband is living with or recognizing another woman as his wife, the purchaser or mortgagee having no notice of her not being his wife and no notice that the grantor or mortgagor had a rightful wife with whom he is not living. (3) Any person claiming under the grantee or mortgagee shall be entitled to apply in like manner and obtain like relief on the founda- tion of the right of the said grantee or mortgagee in that behalf, or of the applicant's own interest having been acquired by purchase for value in good faith without notice of the owner aforesaid having had a wife at the time of the conveyance or mortgage, and such owner may apply in like manner and have like relief. Where wife has been living apart from her husband for five years. Relief of persons claiming under mortgagee. 18. The order may be in duplicate or in as many parts as are necessary, Registration and shall be signed by the Jmlge, and may be registered in the of order, registry office of the registry division wherein the lands to which the 448 PERSONS CLAIMIXG UNDER MORTGAGOR. Order may be indorsed on deed. same relates are situate, upon its production and deposit, without any proof thereof; and sucii registration may take place either before or after the execution of the deed made in pursuance of such order. 19. The order may, if desired, be indorsed or written upon the deed to which the same relates, in which case it shall be registered as part of the deed. Description of land. 20. For the registration of the order including all necessary entries and certificates, the registrar shall be entitled to a fee of $1, unless the order is indorsed or written upon the deed in which case no fee shall be payable in respect of the registration thereof. 21. If the order is indorsed or written upon the deed to be made in pursuance thereof, the real estate to which the same relates may be described in the order by reference to the description contained in the deed. CO ..J ..'..I ■■:::i "'ft'. .■!• Case where '^'^' (1) ^^ action of dower shall be maintained, in case the dowress action of ^^^ joined in a deed to convey the laud, or to release her dower dower not therein, to a purchaser for value, though the acknowledgment required maintainable ^y ^^^^' ^^ *'i® time may not have been made or taken, or though there may have been an informality in the making, taking or certifying such acknowledgment. Deeds bar- (2) Nor shall an action of dower be maintained where a husband ring dower has before the 2nd day of March, 1877, duly conveyed land of which before 2nd he was owner, and his wife has before the said day executed a deed March, 1877, or conveyance for the purpose of barring her dower, notwithstanding confirmed. her husband is not a party to such deed or conveyance, and the said dfod or conveyance shall be taken and adjudged to be valid and effectual to have barred her dower in the lands in which such deed or conveyance professed to bar dower, notwithstanding the absence or want of a certificate touching her consent to be barred of her dower, and notwithstanding any irregularity, informality or defect in the certificate (if any), and notwithstanding that such deed or convey- ance may not have been executed, acknowledged or certified, as required by any act on or before the said day in force, respecting the barring of dower. INDEX. Absolute Conveyance . . Collateral circumstances considered in deternnnnig whether it is a mortgage, 5 Evidence must be conclusive, 5 Intention of parties, 5 Parol evidence admissible to prove it to be a mortgage, 5 When construed as a mortgage, 5 Acceleration Clause Ertect of, in actions for foreclosure, sale or possession, 81 Form of, 79, 82 Mortgagee must accept all if he sues for all, 83 Jklortgagee not bound to sue for whole amount on defluilt, 83 Mortgagor may be relieved before judgment, 80 Not in the nature of a penalty, 80 " Punctually paid," meaning of, 82 Accord and Satisfaction Payment of a smaller sum in discharge of a larger sum, 371 When part performance is a satisfaction, 371 Account See Proceedixgs in Master's Office. Action for, after sale under power, 411 Action on the covenant, account taken by officer signing judgment, 411 Indorsement of writ for, 411 Jurisdiction of County Court, 411 Limitation of actions for, 412 Mode of taking, 150 Mortgagee giving time must account for purchase money as cash, 412 Proof of, in Master's office, 250, 251 Subsequent accounts in Master's office, 251 450 IXJ)EX, rv-' «::r c:o I* „ •■•■■■ ••■.■mJI Account — Continued. Surcliarortgaj^e money. 97 Mortgagor may bring and defend, 852 On the covenant for payment, 04 Redemption action is an action to recover land, 271, 8S8 Stops running of Statute of Limitations, 288 To recover mortgage money where no covenant, 04. 05 When County Court action may be brought in High Court, 291 When action will lie against registrar for omission, 29J> When action will not lie to recover mortgage moneys. 04 Wlio may sue for insurance, 128 Action for Account After sale, 292 Action on the Covenant See Acceleration Clause. See Limitation of Actions for Recovery of Mort- gage Moneys. Acceleration on default, 79 INDEX. 451 Action on the Covenant— cv?«//«//r^. Account taken by officer signing,' judgniont. 411 Acknowledgment preventn a bar, 00 Amount actually advanced only, recoverabU'. So Arrears of interest recoverable, OJ) Barred by acts of the parties, 87 Barred by inability to reconvey, -SO Barred if mortgagee acciuires etiuity of redi-niption, ST Barred if mortgagee releases part of mortgaged premises, 00 P>arred in ten years in mortgages made after July 1st, 1804,07 Barred in twenty years in mortgages made before July 1st, 1804, 07 Bonus not recoverable, unless deducted at time of loan, 8() Deficiency on sale recoverable, 85 Demand not necessary, 78 Foreclosure not a bar, 80 In what currency mortgage moneys recoverable. 8i:.\. 453 e, J8 or do Action for Foreclosure or SBXe—Con/nmcd. Motion to add parties in Master's otiicc, l-iO :Muineipal corporation ontitk'd to foreclosure, 210 ()rii;inal di'l'endants, 21S Parties added l)y :\Iaster, '2'M) Parties plaintitt's, 2 1 .S Parties defendants — administrator <"/ llterii, 228 administrator (id litem, wlien appointed, 222 assiirnee for })enetit of creditors, 220 execution creditor of nu)rtj;a<;H)r, 22S iniardian (ul litciii of lunatic, 227 husband of mort<2;a(;or, 221 infant heirs of mort^;a(;or, 224 lessee of morto-a<,'or, 22!) mesne purchasers of mort(2;aued lands, 227 mortgat^or, 220 personal representatives of morti,fa ':;:S Action for Foreclosure or Ssde—Con/inmu/. K(!j;iHtiy Act iicfd not hr pleaded, 2.S7 Sale iiistead ol' roriichwili-e ut reijuest (»!' sul)se(|iiriit iiK'iuiil)i'iiucei', 211 Six iiKditlis allowed to redeem, 242 Special proxisions in jud^ineiit, 24 Title must 1)(! allev or reeonvey, :i42 Kxecutoi- or adminisliator may convi-y unth'r, :i!)4 I low it atrccts merm'i', .^25 Implied power of sale under, 170 Morteiiiror's i-ioht to assieumtnit instead of ivconvt^y- ance, 400 Power to convey umler, U)7 l\)Wer to insure under, 1 20 Proper words of conveyiinci; under, IVM) • Protection of purchasers under, IDS Purchaser not l)ound to .see to application of puirhase money, 100 Riul.t of mortjjjaovt^ to title deeds and conveyance of le<;al estate, 201 Rio-ht of mort«;aoor to inspect title deeds, :}54 Service of notice of sale under, IH2 Six uionths" notice to pay ott' mortgaoe no lono-er re(|uired, 800 Sub-mortoaeee may exerciso power of sale, 173 . Survivor of two or more mortga^^ees may reeonvey, 342 Suspension of remedies under, 1H4 Taxation of mortjrao-ee's costs under, 2!)3 Act respecting- the Law and Transfer of Property Tecluiical words no lonoei- necessary, 10 456 IN'DKX. ..J :i:: '■t: CO •'.1 Act respecting" the Limitation of Certain Actions Etf<(ct of, !)7 Administrator See Executors and Administratohs. Administrator ad litem Application for appointiuent of, iniiy be nuule licfore action, 224 Consent of person to be a;)pointe(l shoixld be tiled, 224 Wlien appointed by the covut, 228 Advertisement Is a proceeding, 185 I^raetice as to, 18!) Agrent Acknowledgment by, 105 Need not be authorized in writing to give acknowledg- ment, 105 8ubse((nent ratification of acknowledgntent givi-n by, 105 Ag-reement to Purchase Mortgagee cannot make, at the time of loan, S Appeal See AlM'EAL FROM iMasTER-1X-()R1)IXARY. See AlM'EAL FROM ]\[aster'.s Rei'ort. From JNiaster's report, 257 ]\Iortgagee may appeal as to costs, 287 Mortgagor may not appeal as to costs, 287 Appeal from Master-in-Ordinary Appeal from substantive report, 251) Appeal must be set down, 2(50 Grounds of appeal should be given, 251) Seven clear days' notice re((uisite, 250 Sitting in chambers, 25f) To Divisional Court, 25!) Appeal from Master's Report Apjieal generally, 2()0 Application in chambers on notice, 258 Application to enlai'ge time should be prompt, 258 INDEX. 457 Appeal from Master's ?,zi^ovt—Con/inued. Notice of appeal, 25S No new point can be raised, 258 IMevence back, 2()() Report must be tiled before notice served. 257 Seven clear e for hirger .sum tlian that actually a In whom estate of mortgagee vests undei-, 340 Devolution of Estates Act (Manitoba) Effect of, as to notice of sale, 178 466 INDEX. '•••.Jl CO Disabilities Seo Limitation of Actions for I^kdkmption. Time allowed for, in brin*;iny[ action, 27!>, 2-SO Discharge and Reconveyance See MoKTCAiJoH. Actual receipt oi' money, 890 Application of mone^- if paid to a trustee, 396 Discharge by executors, 397 by foreign administrator, 397 ])y married woman, 397 bv two or more morti;ai'•e(^s, 3f)() lost before registration, 3(S7. of lien, 3S9 of sul)-mortgag(i, 33H, 393 operates as reconveyance uj^on registra- tion, 387 should conform to statutory reiiuirements, 388 Effected by statutory discharge, 38() Executor discharoinc; his own mortaairf, 397 * In whom discharge vests title, 390, 391 Lost mortgage deed, 392 Mortitaiie and assignment should be reoistered, 389 Mortgagor acquires title by lapse of time, 3f)0 Mortgagor entitled to covenant against incumbrances, 405 entitled to reconveyance, 390 Partial discharge, recjuirements of, 389 Person best entitled to legal estate, 391 Purpose of statutory discharge, 387 Sheriff' may discharge, 398 Statutory discharge, effect of, 387 When discharge required to be registered, 392 Who may reconvey, 393, 394 Disclaimer Defendant disclaiming, when entitled to costs, 286 Non-attendance in Master's office treated as, 286 INDEX. 4G7 Distress tra- 388 405 See Attorxmen't Clai'se. See Statutory Distress Clause, See Tenancy. (Is of, Application ol" proceeds ot, o( Arrears of interest after a'isiy;niiient, 54 Goods exempt from seizure wailer execution, (U seized under, are in custody of the law, 5(5 Limitation of ri^lit of, 58 Limited to g'oods of mortj,oii,'or, 58, 5!) to uoods not exempt from seizure under execu- tion, 5!), 00 to one year's arrears as against creditors, 02 to six years' arrears as betNVeen the parties, G2 Right of, how created, 47 to distrain for principal or interest, 47 to distrain created by contract, 47 not merged in judgment for mortgage moneys, 54 postponed by proceedings to sell, 54 Statutory distress clausi', 47, 48 Division Court Right of mortgagee to rme in, 07, 08 Dower At common law, 430 in equitable estates, 438 Bar of, effect of, 440, 441 British Cohnnbia, 439 Dowiess entitled to redeem, 445 may pi eve daim in Master's office, 445 Equitable estates, 4;:8, 439 Estates in remainder, 438 How estimated, 442, 443 Inchoate right of, 430 Lands held by tenants in common, 438 held in joint tenancy, 438 Manitoba, 430 MiH INDKX. '•"wi CO ••4 . .::^ Dower— Continued. Mturit'd woman not entitled to (U'daijition of inchoate ri^dit of (lower, 442 ]\Iinin<( lands, 4.SS Mort(;af;e where dower clause omitted, 44:} No dower in e(iuity of redemption purchased and sold by husband, 441 North-West Territories, 48(5 Payment into court of, 204 F'riority of dowress to morttragee, 808, 445 Re(|uisites of, 48(5 Right of dowress in mortgaged lands, 48(} OS against creditors, 444 may be barred in husband's life- time, 48(5 Where wife a lunatic, 445, 440 living apart from her husband, 44(), 447 When wife of assignee of mortgagor entitled to redeem, 228 Wild lands, 437 Dower Act See Dower. Equitable Chargfe Discharge of, how effected, 389 Equitable Mortgages Agreement to borrow or lend, 19 to deposit < ;le deeds, 20 to give a mortgage, 16 for mortgage with usual clauses, 1 9 By deposit of title deeds, 19 General charge of property is valid, 17 Generally, 15 How regarded at law and in equity, 15 Informal legal mortgage valid as equitable charge, 17 Intention may be established by parol evidence, 18 ]\Iortgage of equity of redemption, 15 Nature of, 15 Priority of, 297 iNi>i;\. 4()!> Equitable Mortgragres—O'// ////// ^Z. I'rioi'ity of, liow i)n'S('i'V('(l, 'MV.i Krstnuiiin<;' owner from piirtiii*,' witli Ifjiiil rstutr, 20 Spt-eitif (Ifseriptioii of properly not neci'ssury, 17 Stiitute of Frivufls, Ki Equitable Mortgragree Entitled to foreclosure or Hiile, 20!) May convey leyal oHtate, 1!)7 To what costs entitleil, 284 Equity of Redemption See M()UT()A(ioi{. Creation of courts of e(|uity, 7 Devolution of, .Sol, 420, 427 Dower in, .So 1 Essential to a n»ort<;'a<^e, (i » Formerly not saleable under execution, 4:il Is an estate, 350 May be purchased by mortgagee, 4o May be sold under execution, 430 Mortgagee purchasing, mortgagor released, 4.5 Tenancy by the curtesy, 3.51 Estoppel Demise by, 51 IMortgagor not estopped by settlement under mortgagee's policy of insurance, 124 Of mortii'agee as to amount due, 155 Evidence Defence of purchase for value without notice, 332 Intention of parties may be established by parol, 1-ns. 484 INDEX. 471 under Execution Creditors of Mortg'ag-or-Cc;;//'/////67/. Formerly t'i|uity of rtidiMiiptiou not saloable execution, 48] Interest of niortgacror may Ije sold, 480 Lands in diti'erent counties cannot be sold. 432 May impeach prior mortgage as fraudulent. 484 restrain cutting of timber, 484 Title accjuired by purchaser, 488 Purchaser at sale under execution entitled to possession, 488 Remedy wherc^ mortgage created by deed absolute iu form, 484 Kiu-ht of execution creditors under an execution is a lien, 484 Sale of e(iuity of redemption muler lost writ, 488 land under execution subject lo several mort- gages, 488 Setting aside sale under execution, 488 Where mortgagee purchases, 482 two mortgages ar(i on same land. 482 Execution of Mortg-ag-e By mortgagee, unnecessary to create tenacy, ol Executors and Administrators Administrator nuist be appointed of deceased n.ortgagor before power of sale may be exercised. 1/8 Devolution of equity of redemption, 42(), 427 Devolution of Estates Act, effect of, 840, 841 Entitled to mortgage money, 840 Executor discharging his own mortgage. 848 Foreign administrator, power of, 844 Liability on covenant for payment, 74 Locke King's Act, 42S ]\ray reconvey and discharge, 342 ^1 ov 01 sue and be sued, 844 sue on the covenant, (iO tgaged lands primarily liable for mortgage ■trrau-es made after 1st July, IHSG, 848 debt, 428 Of surviving moi-tgagee may sue on the covenants, 70 472 INDEX. ...J • ■.J '■Z"> Executors and AdministrsLtors—Coninined. Out of what fund niortgao-e to be paid, 428 Power of, to niortj^aoe, 38, 34 in New Brunswick to reconvov niorltiaued lands, 344 Reconveyance by heir, 341 Riohts of, 340 Survivor of two oi- more, may sue on tlie covenant, (i'.t reconvey, 342 Exemptions From seizure for interest or rent in Ontario, 01 under execution in Ontario, 01 List of, 01 Falsification Definition of, 41 2 Fettering" Redemption Stipulations for, void, H Final Order See Action for Foueclosuke or Sale. See Order. No bar to action on the covenant, 2Gf) Fire Insurance Action on policy may be brought by mort;;'agor, 1 23 Application of insurance mone3^s, 12!) Assionment of insured property by mortgat^or without consent, 122 Assignment of poliCy without transfer of property, consent not recjuired to, 124 Breach of conditions of policy by mortgagor. 122 Doctrine of subrogation, 125 Ertect of covenant by mortgagor to instu'e, 124 Generally, 120 Implied power to insure, 120 Insurance cannot be cancelled without consent of mort- oao-or, 124 Insurance contract, general form of, 122 Insurance moneys applicable in satisfaction of mortgage debt, 121 INDEX. 47a Fire Insurance- Cw/^/^tv/. lusurei- entitled to subrooutiou may recover value ot remetlies renounced, 12H Is an indemnity uguinst los.s, l21 Metrojoolitan Bidldivg Act (Imp.) not in force in Ontario, 12!) Morttjacre clause does not create new insurance, 12oi", 415, 41(i Indian l/'owt'V of, to mortj^aije, 87 Infant JMaster's report wliere infants entitled to moneys in court, 25() Judi,anent in action for foreclosure, 240, 241 Reservino' a day for infants to redeem, 2()() Service of notice of sale on, 180 Instalment Meanino- of, 1 lo Insurance See P'iRE IXSURAN'CE. Intention As atiecting merger, 82.S How determined as to merger, 828 Interest See Act Respecting Interest. See Compound Interest. See Interest after Default. See Interest Act See Interest Act, 1«!)7. Accrues from day to day, 107 After default, 110 Allowed on amounts pai«l for repairs and improve- ments, 152 money paid to redeem land sold for taxes, 154 Any rate may be bargained for, lOs Arrears for more than six ytiiis allow(jd against mortiiaii-or redeemiu'', 104 for six years onh' allowed against subse(juent incumbrancer, 104 of, Real Pr<'jf*<'rty Lhaitatiou Act, as to, 108 recoveraV)].' in action on the covenant, 0!) INDEX. •^ I to Interest — Conttnued. Arrcar.s recoverable out of land, 108 Coinpound, wlien allowed, US not allowed on takin<>' subsequent account , 252 Loiin Corporations Ad as to, 101) Increased rate after default, 115 May be apportioned, 107 Mortgagee chargeable with, on surplus rents. 155 on surplus after sale, 204 On what interest maybe charged, 107 Rate of intere.st, when it niu.st be stated, 109 when it need not be stated, 110 Right of mortgagee to arrears, 202 Runs only from time of advance, 107 Sinking fund plan, 109 Six per cent, allowed where no rate agreed on, 109 Vndev L(ind Titles Act, 112 Jiulicature Act, 112 Interest Act Effect of, generally, 109, 110 Interest Act, 1897 Provisions of, 110 Interest after Default Bargain may be made for, 110 Form of clause providing for, 112 Implied covenant to pay under Land Titles Act, 112 Increased rate unxy not bf bargained fo", 115, IKi Interest payable on principal " until paid " does not mean interest after default, 111 May be allowed althougli no agreement therefor, 112 No implied agreement to pay at same rate, 111 to pay interest on interest, 111 Parol agreement for increased rate insutficient, 11 (5 Payable as damages, 112 Rate must not t'xceed that payable before default, 110 Six per cent, is measure of damages, I 18 Where bargain made for lower late if paid punctu- al! v, 117 n-.f .. ,„ ...J •«•>*■ 478 INDEX. Interest after Judgrnent Rate allowed, ll-i Rate reserved may be recovered after judji'ineiit, llo Joint Stock Company Power of, to inort<:aii'e, 37 Judgement Against married woman for foreclosure, 245 on coveuaut, 245 Entry of, 24G For immediate sale, when granted, 243 For possession enforced b}' writ, 246 Form of, in action of foreclosure or sale, 243, 244 whure action on e((uitable mortgage, 245 Innnt'diate judgment of foreclosure, 242 In actions for foreclosure or sale, 23rti;'age(;'s interest, .SM Legfal Tender What money is le^^al tender, .3(50 Lessee See Tenant ok IMohtgacoh. Lien Execution creditor's ri7 Action on thc^ covenant barred in ten years where niort- ^i\ Payment by a^jent, 275 hy njorttj^atror, 277 b}' mortijaijor who has .sold the hind, 27!) by mortS by person liable to pay, 277 by principal debtor, 27-S by receiver, 27H by stranj^er, 27S by tenant of mort^^atjor, 27H Posse.ssion after rii^ht extin^nished does not revive title, 281 Po,s,session of vacant land deemed to be in the mort- ga<^ee, 282 Receipt of rents not a payment within the act, 278 Re«//«Kfrf Disability of mortgagor not provided for by the statute, 882 Fonnorly no statutory limitation in equity, 877 Laches, eft'ect of, 384 Limitation Act does not apply to personalty except leaseholds, 888 Mortgagee in possession, right barred in ten years, 870 Mortgagor may be barred as to part of land, 378 Mortgagor's right to redeem not barred while he remains in possession, 870 Payment of taxes not possession, 879 Possession of mortgagee under title other than that of mortgage, 37!) required by the statute, 878 of solicitor is possession of client, 878 of vacant laud dc^emed to be in the mortgagee, 379 Redemption action is an action to recover land, 888 Time runs from possession of mortgagee, 877 Limitation of Actions for I^ecovery out of Land Acknowledgment by agent, 105 by one of two executors not valid, 105 good only against person giving it, 104 when it nuiy be made, 100 Action to recover out of land barred in ten years, 101 Arrears of interest where prior mortgagee in pos- session, 100 Mortgagee selling under power may retain all arrears of interest, 105 Part payment may be made by mortgagor or his agent, 102 Payment by a dowress, eftect of, 102 by one of several owners, ettect of, 1 08 by principal debtor will keep debt alive against suretj, 102 by purchaser of eiiuity of redemption, eftect of, 102 by receiver, eft'ect of, 103 Proceedings under power of sale, 175 Six years' interest only recoverable out of land, 108 4S4 IXDKX. ••-■ ••.4 '•••■J r !--i IP'** Limitations of the Right of Distress See Distress. Lis pendens DtK'trine of, 281 Effect of rejfistration of, 3()4 Provisions of Judicature Act, as to, 281 Loan Companies See HuiLDixo Society JMoktoages. Loan Corporations Act Interest recoverable under, 109 Loclce King's Act Effect of, 42S Lord Cranworth's Act Power of sale un"«''nt under, 217, 82!) Mergrep Ah art'ecting priority, i^24, 825 Assignment of charge to third person, 824 Change and estate must unite in same person during his Tife, 824 Depends on intention, 822 General rule, 828 Of a term in the fee, 825 Presun.ption of intention to keep charge alive, 824 "Hiere it arises, 822 Moptgragre Agreement at time of loan to purchase land, « At connnon law, 158 Clogging redemption, IS Collateral advantage not allowed, S Contract of, 1 Covenants written and printed, 1 1 Definition of, 8, 1 Dirterently regarded by courts of law and courts ot equity, (3 Equitable mortgages. 15 Equity of redemption es.sential to, (5 Fettering redL;mption, 8 Form and effect of , 6 Implied covenants, 12, 18 In equity, 158 Is a contract and a conveyance, 5 486 INDEX. »•■•■ ...J •...1 1::: CO Mortg'ag'e — Continued. Kimls of, 10 L('«//«// taking possession, 142 Entitled to credit for payments properly made, lo2 Liable for occupation rent, 150, 151 to account after sale to himself, 140 to account for rents actually received, 148 to account for rents which he ntight have received, but for wilful default, 148 to account for timber, 150 Liability to repair, 143, 144 for damages if possession taken prematurely, 1 42 for waste, 144 of, after assignment of mortgage, 14!) May carry on business, 148 May confirm tenancies made by mortgagor, 14(» May cut timber if security is scanty, 144 Mofle of taking account, 156 Mortgagee in possession entitled to rents, 145 Mortgagor not an overholding tenant, 141 Not allowed for personal trouble and care, 154 Not bound to assign instead of reconveying, 402 Not entitled to receiver, 138 Notice to tenant to pay rent, effect of, 145 Power to make leases, 140 Right to lease on default without notice, 147 under power to lease after notice, 147 Rights and liabilities of, 141 as against chattel mortgagee, 148 of subsequent mortgagees, 142 of tenants under leases made prior to mort- gage, 145 Tenant of mortgagor under lease prior to mortgage entitled to notice to quit, 14G Tenant paying rent to mortgagor after notice from mortgagee, 145 INDEX. 489 Mortgagee in Possession— Continued. When account takt-n with rests, 155 When alloweil costs of unsuccessful pvoceedinj^s, 154 for interest on repairs and inipiovenients, 152 for repairs and improvements, 152 When chargeable with rents not receive of inortjjajje, :i:r2. .i.i(» the rijiht of tacking, 'MO priorities, 2!)!> EttV'cted by i-ejjistration, 801 V)y li'f pt' II 'I ('III*, Ji()4 Ettbct of, as to consolidation, l^V.) Insurance cannot he cancelled witliout notici' insurer, 1"24 Of cxercisinj; power of sale, 170 Power of sale without notice, 107 Rej^nstration of subse(|uent niortm exercising power may sell rever- sion, 107 with implied power may convey legal estate, 178 496 INDEX. pic Power of %2\%— Continued. Execution creditors of mortgiitj^ee may restrain improper exercise of power, 180 not entitled to notice of sale, 180 mortgagor entitled to notice of sale, 180 Exercise of, 171 Exercise of power after tender of principal and interest, 187 Express or implied waiver cf notice, 181 First and second mortgagees may concur in selling under power, 173 First mortgagee about to sell may purchase second mortgage, 108 Form of power of sale, 1(U affidavit and order on application to al)ow con- current proceedings, 184 deed under power of sale, 197 notice of exercising power, 17G Husband of mortgagor entitled to notice, 177 Impeaching sale for inadeijuacy of price, 200 Implied power of sale, statutory provisions as to, 170 under English acts, 169 Improvements by purchaser when sale set aside, 200 Intention to sell under power or subject to power essential, 197 Judgment creditors of mortgagor attacking sale proceed- ings, 200 Legal representatives of "assign " are "assigns," 172 Length of notice required, 176 Lessee of mortgagor entitled to notice when lease made after mortgage, 179 not entitled to notice when lease made before mortgage, 179 Liability of mortgagee for want of care in selling, lf)0 Lord CranwortlCs Act (Imp.), provisions of, 169 Mode of advertising in newspapers, 189 serving notice, 181 Mortgagees advancing distinct sums must concur in exercising power, 172 INDEX. 497 inproper sale, 180 notice of and ing under se second il}ow c on- to, 170 I ;le, 200 to power tie proceed- 118," 172 lease made 9 when lease rage, 179 ailing, 190 1(59 ) concur in Power of Sale -Continued. Mortgagee cannot treat sale as a nullity, 19(i cannot withdraw notice to pay off", 1S3 entitled to pay surplus to apparent owner of equity, 203 exercising implied power entitled to convey- ance of outstanding legal estate, 201 exercising implied power entitled to title deeds, 201 exercising power may not purchase, 192 is trustee of surplus proceeds of sale, 203 liable if he pays surplus to wrong persons, 203 may agree to sell before power is exercis- able, 17 G may exercise reasonable discretion as to man- ner of giving notice, 170 may cut timber if security scanty, 190 may sell part of the mortgaged lands, 1H9 may sell to corporation of which he is share- holder, 194 may not sacrifice luortgaged property, 186 may not sell trade machinery apart from land, 190 may not sell tiir.ber without land, 189 may not sell to trustee for himself, 19r may not sell land without timber, 190 must account for purchase money as cash at time of sale, 190 must exercise power bandfde, 188 not bound to advertise property for sale, 188 not bound to otter property by auction, 187 not a trustee for mortgagor except as to surplus, 186 retaining surplus liable to pay interest thereon, 204 with power not a trustee for mortgagor, 171 with power under short forms act may take proceedings under Act respect iwj Mort- gcKjes of Real Estate, 168 498 INDEX. ...J ^ » . » -""it.' Power of %d\B— Continued. Mort(ja-lio-ence, 304 As between dowress and mortgagee, 303, 445 executions and unregistered instrunients, 300 legal and equitable incumbrancers, 309 morttracree and execution creditors, 297 purchaser at sheriff's sale and person claim- ing under prior unregistered mortgage, 300 tenants in common and mortgagee- of share, 305 Effect of lis pendens, 304 registration, 301 Equitable mortgages and liens incapable of registration, 303 Executions, 296 First in order of time, 295 How priority lost, 297 Interest of Crown takes priority over lien tor taxes, 295 Legal and equitable mortgages, 297 Mechanics' lien, 296 New mortgagee paying off prior mortgage, 302 Notice, effect of, 299 ■ Omission of registrar to index, effect of, 299 Payment of prior mortgage by person liable to pay, 302 Preserved by notice, 300 Reo-istration, effect of, 298 . • is notice, 301 Taxes, 295 When priority of registration does not prevail, 301, 302 Where instruments executed on same day, 297 Proceedings in Master's Office See Appeal from Master's Report. Advertisement for sale, 262 Affidavit of auctioneer, 264 Agreement to purchase, 264 502 INDEX. •'-.ml >^ I *~* Proceeding's in Master's OtRce— Continued Amount of deposit cannot be increased, 252 Appeal from Master's ruling, 260 report, 257, 260 Appointment, service of, 247, 248 Arrangements for sale, 268 Compound interest not allowed on subsef|uent account, 252 Conduct of sale, 262 Confirmation of report, 257 Contents of repoi t, 256 Court may extend time for payment, 252 Delivery out of report, 257 Effect of final ordei-, 267 Filing report, 257 Final order of foreclosure, 265 Fixing day for redemption in actions for foreclosure, 254, 255 in actions for sale, 256 Further period allowed for redemption, 255 Incumbrancer let in after foreclosure, 249 Insurance premium may be allowed in subsequent account, 252 Master may let in further evidence before signing report, 257 Mode of sale, 262 Mortgage deed cannot be attacked in ]\Iaster's office, 249 Mortgagor may show amount actually advanced, 251 ]\Iotion to set aside sale, 264 Opening foreclosure, 267 Order for payment of deficiency after sale, 265 Original parties to be served with appointment, 247 Parties added in Master's office may move against judgment, 248 may show real purpose of mortgage, 251 not attending treated as disclaiming, 249 Payment of purchase money into court, 264 Powers of Master, 247 INDEX. 503 (juent •eclosure, :, 25(i ibsequent i signing office, 249 d, 251 t, 247 'e against 51 549 Proceedings in Master's omce— Continued. Preparing report, 250 Proof of mortgage account by incumbrancer. 250 by assignee of mortgage, 250 Reference back, 2(50 Report, when absolute, 257 where infants entitled to moneys in court, 250 Reports and certificates, 250 Right of parties to bid at sale, 203 Sale at request of subsequent incumbrancer, 252 Service of notice on added parties, 248 Settlement of conveyance, 204 Stay of proceedings after judgment, 201 Subsequent accounts, 251 Taking the account, 250 Terms upon which extension of time may be granted, 2o3 foreclosure opened, 209 Written objections need not be taken before Master, 258 Improvements by piu-ciiaser when sale set aside, 200 Mortgagee is a purchaser within 27 Eliz., e. 4, 42 Not bound to see to the application of tlie purchase money, 199 Under power of sale, protection of, 198 Purchaser Of Equity Of Redemption Covenant to pay mortgage is one of mdemnity, 418 Entitled to benefit of covenants, 414 covenant of mortgagee against incum- brances, 421 indemnity from his vendee, 419 redeem, 420 surplus after sale, 414 Liable to indemnify mortgagor, 70, 77, 415, 416 Liability for further advances to mortgagor, 419 to indemnify mortgagor, 70, 77, 415, 410 on covenant for payment, 70 Marshalling as between several purchasers, ;23, 424 J504 IXDEX. c:oi — I ■>- L-4 Purchaser of Equity of Redemption— C'o;///««e//. Not lial)lo to niort^atjoe on covenant for payment, 415 01)li<;ation to indenniify may be aHsij^ned, 77 Puichaser of part of mortjjaged lands, rightH of, 424 Right to aHsignment, 420 llightH and liabilities of, 413 Rights of several purchasers among themselves, 422, 428 Where mortgagee releases part of mortgaged lands, 425 i^uietingr Titles Act Proceeding under, will not prevent Statute of Limita- tions from running, 283 Railway Rights of mortgagee of, 210 Real Property Limitation Act See Limitation of Actions. Acknowledgment after time has elapsed does not revive title, 281 to one mortgagor saves rights of all, 380 under section 13, 274, 379 under section 19, 379 under section 23, 275, 379 Action to recover money out of the land, 101 Applies to real property only, 271 Arrears of interest, 103 Concealed fraud, 280 Difference from Statute of James, 281 Disabilities under, 279 Disability of mortgagor not provided for in statute, 382 Effect of bringing action, 283 act is to extinguish title, 281 Execution is a lien under section 23, 435 Formerly no limit by statute in equitj% 270, 377 Limitation generally, 270 Part payment, 276 Personalty, does not apply to, 383 Right of redemption barred in ten years, 376 Subsequent possession does not revive title, 281 When the time begins to run, 272 INDEX. 605 Receiver Appointed by tlit- court, Ki2 the parties, 182 E(iuitablo mort<,nigeo entitled to, after default, i:V2 Jurisdiction to appoint, court has no, unless action pending, 15^2 Mortgagee, right of, to poss(!ssion wh.nv receiver appointed, 142 Nomination of, right to, l'i4 When the court will appoint, 1 5^3 Recitals In conveyance under power of sale, 197 See Discharge and Reconveyance. Redemption See PuKCHASEK OF E(iUiTv OF Redemption. See Action for Redemption. See Limitation of Actions for IIedemi'Tion. See Proceedings in Master's Office. Action of, is an action to recover land, 383 All persons having an interest in equity of redemption may redeem, 861 Cloo-(nnff the right of, not allowed, 8 Equity of, essential to a mortgage, Fixing day for, in Master's office, 254, 255 In equity, 7 In Manitoba six months' notice not required, 360 In Upper Canada before 1837, 7 Judgment creditor may redeem, 364 Jurisdiction of courts where lands situate without the Province, 360 Lessee for years may redeem, 363 Mortgage not redeemable before day named, 356 of two different estates, right to redeem one, 362 payable on demand, 357 Mortgagee must accept payment if made in pursuance of demand, 359 5()<) IXDKX. •••4 *"5 I. '.J Redemption — OmtiuuvU. .Mortf^ii^or niMiiot divi-sL liiiiiHcir, at tiiiic of Idiui. of riy;lit of, H who lias assionod may not ivdi't'iii. uhIuhh suf'l oil the covenant, 302 Notice not fe(|uiiv(l if niortpitrcc taixcs procecrh'ni^.s, ,'}59 where niortie .I..- 1. 44.1 Regristration See PuioUITIKS. Before issue of Crown j;nint is not notice. 'M)\ Is notice, 301 Liens incapable of, 303 Notice must be actual, 299 (M' notice of sale, 1H3 Of subscpient mort^mge not notice to prior n.ort- tfai^ee, 31 1 Priority }j;iven by, 301 Unrej^istered instrument fraudulent and void as aganist subseijuent niortj^'ajje, 298 What constitutes, 299 What instruments may be registered, 298 Wlien instrument is deemed to be registered, 300 When priority of, does not prevail, 301, 302 Regristry Act See PUIOHITIES. See Registration. Discharge by married woman, 397 by sheriff, 398 of mortgage paid ofi' by new loan must be register(>.d, 392 Effect of statutory discharge, 386 Further advances, provisions of, as to, 311 How far it abolishes tacking, 310 How far it affects consolidation, 313, 314 Instrument is registered when received by registrar, 300 Instruments which may be registered, 298 Leases for seven years, 305 Liens incapable of registration, 303 Need not be pleaded, 237 Notice required by, 299 508 rXDEX. Co Registry koX— Continued. Partial di.scliargo under, 380 Priorities, as to, 297 Priority of registration shall prevail, 801 Provisions of, respecting lien notes, 200 Registration constitutes notice, 801 Unregistered instruments under, 298 What constitutes registration, 298 Release Of part of mortgaged lands bars action on the covenant, 90 Renewal of Lease See Leasehold Mortgages. Rent 8ee Distress. Must be certain, 58 Need not be paid to create tenancy, 52 Repairs Liability of mortgagee in possession for, 143, 144 When mortgagee allowed for, 152 Report See Proceedings ix Master's Office. Of Master, 25^i, 257 Reservation of Rights May prevent bar of action on the covenant, 92 Sale See Action for Foreclosure or Sale. See Notice of Sale. See Power of Sale. Generally, 205 Judgment creditor entitled to remedy of, 434 Mortgagee entitled to, instead of foreclosure, 9 Proceedings in Master's office, 261, 262, 263, 264 Setting aside, 264 When the proper remedy, 205 Sale Proceedings in Master's Office See Proceedings in Master's Office. INDEX. 500 Security Definition of, 1 Difference between mortgage and other Jreal securities. 2 Effect of foreclosure on collateral security, 207 How it arises, 2 Incidents of , 2 Real and personal, 1, 2 Service See Action for Foreclosure or Sale. See Power of Sale. Of notice of sale, 181, 182 and writ of sunnnons concurrently, 1 85 Set-off Mortgagor's right of, 335 Setting" Aside Sale See Sale. See Action of Foreclosure or Sale. See Power of Sale. By execution creditors of mortgagor, 433 For inadequacy of price, 200 Under execution, 433 Settled Estate Mortgage on, payable out general estate, 429 Sheriff May discharge mortgage, 398 May sue on the covenant, 72 Short Forms Act Acceleration clause, 79 Application of purchase money after sale under, 201 to mortgages of leasehold, 27 Covenant to insure, 120 Powor of sale, form of, under, 161 Service of notice of sale, provisions of as to, 181 Right of mortgagee to lease under, 147 Power of sale, 161, 1()2 510 INDEX. ...J CO Ci.c .'an. Sinking- Fund Plan See Interest. What statement mortgage should contain, 109 Solicitor Whi'ii not entitled to profit costs, 292, 293 Specific Performance Agreement to borrow or lend not enforceti by, 1 9 to give security' may be enforced by, 19 Statute of Frauds Agreement to give a mortgage must be in writing, 16 Ett'ect of, as regards tenancy of mortgagor, 51 Parol evidence, when admissible, 18 Statute of Limitations See Li.MiTATioN OF Actions. ]\Iust be expressly pleaded, 230 Power of sale, respecting, 175 Statutory Definitions Conveyance, 4 Incumbrance, 4 Incumbrancer, 4 Land, 4 ]\I(jrtgagee, 4 ]\Iortgagor, 4 Property, 4 Statutory Distress Clause Does not create a tenancy, 48 Interest after maturity cannot be destrained for, 48 When second seizure legal, 49 Stay of Proceeding's After judgment of foreclosure, 261 Sub-lease See Le.VSEHOLD ]\Ioi{T(iA(;ES. Liability of mortgagee by way of, 21 Sub-mortgragfe See AssKiXEE OF Mortgage. How created, 337, 338 INDEX. 511 Sub-mortg-ag-ee Liabl." to account to liis aHsii,nior for pro«ts, 150 May exerciHC powei- of sale, 178 Subrogration Efiect of mortgaijje clause, 127 Form of mortgage clause, as to tire insurance, I2i) Generally, 125 What in.sured entitled to, under, 1 2.S When insurance wholly for benetit of mortgagee, 128 Subsequent Mortgrag-ee Not allowed for improvements as against prior mort- gagee, 152 Not eutided to sale as against prior mortgagee, 365, 8(50 Hix years' limitation does not apply where prior mort- o-ao'ee in possession, 100 Six years' arrears only allowed against, 104 When entitled to sale, 200 Successors of Mortg-ag-or Not hound by statutory covenants, 73 Surchargre Definition of, 412 Surety Entitled to notice of sale, 180 When discharged, 94 Surplus Mortgagee is trustee of surplus proceeds of sale, 203 Suspension of Remedies See CoxcuHiiEXT Proceedings. Tacking- Affected by notice, 310 Arises only where charges created by same person, 308 Arrears of interest, 104 Costs, 308 Covenant for further advances, 312 Differs from consolidation, 313 Doctrine of, 307 Efiect of accjuiring the legal estate, 310 512 INDEX. Tackingf— Continued. Further advances, 811 Heir or executor, as aj^ainst, 807 How affected by Registration Act, 811 Incumbrancers, as between, 809 Judgment, 808 Moneys paid for release of equity of redemption, 808 Not allowed against the provisions of the Rcfjistry Act, 810 of unsecured debts, 308 Term of redemption, 871 When allowed against intervening incumbrance, 810 Taxation Mortgagee's costs, 293 Order may be obtained on prcacipe, 294 Who entitled to tax costs of mortgagee, 294 Taxes Mortgagee entitled to lien for, 154 Priority of, 295 Tenancy See Distress. See Tenants of MoRTiiAOOR. Amount of rent reserved material in determining tiona fides, 5G At Ay 11 determined by death of mortgagor, 54 By estoppel, 51 Does not alter relation of mortgagor and mortgagee, 55 Effect of attornment clause, 55 From year to year, and at will, 58 Landlord cannot distrain but within six months after expiration of, 5G Mortgage deed need not be executed by mortgagee to create, 51 Mortgagee may confirm tenancy created after mort- gage, 14(j Must be real and not fictitious between mortgagee and mortgagor, 56 On default, 53 INDEX 513 bona ee, 55 after morfc- Temncy—Conitnued. Power to make leases, 147 Rent must be certain, 53 need not be paid to create tenancy, 52 Rights and liabilities of mortgagee as landlord to mortgagor, 55 Time must be determinate, 53 Tenancy by the Curtesy Equity of redemption, subject '■'•, 351 Tenant Entitled to trade fixtures as against mortgagee, 138 Rights of, as against mortgagee, 145 under lease prior to mortgage, 145 Tenant of Mortgragror See Distress. See Landlord and Tenant. See Lessee. Entitled to notice of sale, 179, 229 to quit, when, 146 Is a purchaser, 179, 363 Is entitled to redeem, 229 Morto-ao-ee entitled to rents 145 Priority of, to mortgagee, 305 Proper party to action of foreclosure or sale, 229 Rights of, under lease prior to mortgage, 145 Tender See Redemption. See Legal Tender. By letter, effect of, 367 Effect of, 366 Money must be kept ready, 366 Money must be produced, 367 Mortgagee bound to know amount due, 368 refusing, liable for costs, 368 Must be made by person entitled to redeem, 366 made in Canadian currency, 368 made to person entitled to receive the money, 366 514 iNi)i:x. CO :';:j ^s:: ;">::: ':::> ^»..: Tender — Conlinned. Must be unconditional, 367 Place and time of making, 307 Sale will be set aside if purchaser had notice of tender, 368 Stops interest and costs, 366 To agent of mortgagee, effect of, 367 Under protest, 368 What is legal tender, 369 Timber See Cutting Timber. Cannot be sold without tuc !and, 189 Title Deeds Mortgagee entitled to, 46 Mortgagor liable for fraudulent concealment of, 46 Trespass Mortgagee may maintain action of, 41 Trustee Liability on covenant for payment, 73, 74 Limitation of actions for account, 412 Mortgagee is trustee of surplus, 203 not a trustee for mortgagor, except of tlio surplus, 186, 203 '^•eivice of notice of sale on trustee and ccsfui, que Crust, 180 1 uility of, for breach of trust, 32 l'\ •;, invest on mortgages, 32 Pj A er of, to mortgage, 33 Trustee Act Mortgagee is an express trustee of surplus, 412 Underwriters' Association Mortgage clause adopted by, 126 Unpatented Lands Rights of mortgagee, 45 Variation From statutory form of power of sale, 164 INDEX. 515 ice of 46 Venue In action for foreclosure, 234 Waiver Of notice of .sale, IHl Waste Mort*,mgor may restrain mortga